Julie Cohen on DRM & PrivacyJulie Cohen (Georgetown) is delivering a very interesting paper on digital rights management and privacy at the Berkeley DRM conference this afternoon. She begins her talk with the obvious and very troubling point that DRM systems may facilitate tracking of what we view, listen to, and read--creating a troubling threat to "intellectual privacy." What if this happens? How could the law respond? Fair Information Practices, Julie argues, are not enough, because these proctections are voluntary and likely to be anemic. Even privacy torts can be waived in advance & likely would by click-wrap agreements intergrated into DRM systems. Cohen then asks whether intellectual privacy ought to trump such agreements. The best solution, she suggests, is to design personal privacy protections into DRM in the first place. Rather than mandating specific technologies, Cohen argues, government can create inalienable rights that would constrain technology that can invade privacy.
Not DRM. The Domination Clause of the Utah Constitution
While a Microsoft representative was explaining Microsoft's decision to build support for DRM into Windows, I took a look at the fine blog, A Good Oman. Nate has a very interesting post on the domination clause of the Utah State Constitution. His blog is always provocative, interesting, and smart.
Larry Lessig is speaking now at the Berkeley DRM conference. He is arguing that we are "solving for the extremes," those who want all information to be controlled or those who want everything to be free. He worries that DRM will create an architecture that forces those who to share their content, but reserve some rights into a false choice between total control (DRM) and giving their content away with no restrictions at all. His suggested alternative is a variation on DRM, which he calls DRE (where E stands for Expression). Larry was quite emphatic that the E was more than an emphasis on the power to set permissions in DRM, but even after hearing his explanation, I wasn't really sure what the difference was.
Regulation versus Market Approaches to DRM, More from Berkeley
Another emerging theme from this morning's sessions concerns the role of government in establishing DRM standards. Several participants expressed concern about regulatory lock-in to particular DRM systems. Pam Samuelson asks about another form of legal regulation that may have a big impact on DRM, patents. If a DRM standard emerged around a patented technology, then the firm that owned the patent could make decisions that could determine who would be able to sell digital content.
Religion and IP Rights, More from the Berkeley DRM Conference
David Farber made an eloquent plea to those who engage in public debate about DRM to forgo religion. This please certainly resonated with this observer of the digital copying wars. How many times have I heard IP stakeholders take the position that P2P is the moral equivalent of "armed robbery." (I heard it again today.) Nonsense and destructive of dialogue. And when I teach the Napster in my IP course, how many students have argued that P2P is a basic human right, because the music industry rips off artists. Bogus and destructive of dialogue.
Radin on the New Intellectual Property (and the New Contract)
Margaret Jane Radin (Stanford) writes the following in response to my earlier post (live from the DRM conference at Berkeley):
Someone (maybe me) should write an essay called "The Transformation of Property and Contract." The transformation involves changing the meaning of the institutions by reading out the public dimensions. The former meaning of "property" involves an institution in which the state (the community) underwrote the entitlements; therefore there is a central role for democratic assent. Now entitlements are being created by giant "private" entities, e.g. by the Microsoft EULA, and some writers are assimilating these regimes to property. But it is property in a new sense, without the public dimension. The former meaning of "contract" involves an institution in which the state (through the court system) underwrites enforcement, providing a neutral forum for interpreting what constitutes binding commitment, what exactly the commitment constitutes, and what commitments are unenforceable for reasons pertaining to the community as a whole. Now commitments are being created and enforced automatically through machines created by giant "private" entities which promulgate whatever provisions they want according to whatever interpretation they want, and some writers are assimilating these technological regimes to "contract." But it is contract in a new sense, without the public dimension.
Part One: Sobel's ISP Resaler Model
Lon Sobel gave an intriguing paper on an ISP centered model for sale of digital content. Lon propose that ISP's act as resale outlets, with the content firms (music, film, books) as wholesalers. This is an intriguing suggestion, but it assumes a picture of Internet architecture that may be accurate for many American consumers, but does not generalize to the global Internet. Many Internet users access the global Internet through nonprofit or government sponsored connections to the Internet. Even in the United States many users (college kids) access the net through university links to the backbone. I just can't see U.C. Berkeley becoming the resaler for AOL/Time Warner, but who knows? Part Two: The New Politics of IP Legislation
Cary Sherman of the RIAA delivered the party line--P2P is evil and the ultimate solution is something that consumers will prefer to P2P. But I don't think that even Cary believes that the industry has found the holy grail--a way to put the genie back in the bottle! Sarah Deutsch of Verizon Communications obviously had a very different agenda. . Their sharp disagreement highlights how much the political environment for IP legislation has changed. JessicarestinLitman (among others) has observed that the history of copyright legislation involves the iteration of a three stage sequence: (1) new technology creates a new stakeholder with interests that are not accomodated by existing legislation; (2) the new takeholder goes to Congress which tells the stakeholder that consensus among all stakeholders is required for legislative action; (3) a bargaining process produces a solution which is win/win among the ip stakeholders, but extracts rents from others (e.g. through term extension). But the big ISPs and the big consumer electronic companies are now involved in the process. And consumers now have a visible stake. You can't imprison the 12 year old children of ordinary folks, much less U.S. Senators. Hence, the next round of ip legislation will be conltested in Congress. Prediction: No politically viable consensus will emerge from multiparty negotiations between ip stakeholders, ISPs, and consumer electronic firms.
The Old Intellectual Property & The New Intellectual Property
It is the morning of the second day of the Digital Rights Management conference at U.C. Berkeley. The session this morning is on DRM as an enabler of business models--and readers of this blog may be asking, "What does this have to do with legal theory?" The panel is impressive, but it includes mostly industry representatives. There isn't a single legal theorist on the list. Nonetheless, I think DRM will soon be on the tongue's of legal theorists everywhere. One of the great law review articles of all time was Charles Reich's The New Property, famously cited in Goldberg v. Kelly and at one time (maybe still?), the single most cited law article ever. The debate about the new property was, I believe, one of the key events that played a role in the transformation of American legal education and legal scholarship. But something equally profound is happening in the field of intellectual property. The old intellectual property (copyright, patent, trademark) is giving way to the new intellectual property (digital rights management, the anti-circumention provisions of the Digital Millenium Copyright Act). Here is an example from CNET yesterday:
Printer maker Lexmark International Group won a preliminary injunction Thursday in efforts to prevent a company from selling computer chips that allow toner cartridges to be recycled. Judge Karl Forester of the U.S. District Court for the Eastern District of Kentucky issued the pretrial injunction against Static Control Components, a small Sanford, N.C.-based company that sells printer parts and other business supplies. The order prohibits the company from selling its Smartek chip. When installed in compatible Lexmark printers, the chips allow the printers to use cheaper recycled toner cartridges that would otherwise be rejected by the printer's sensors. Lexmark filed the suit late last year, alleging the Smartek chip violates the Digital Millennium Copyright Act, which prohibits the dismantling of devices intended to protect intellectual property rights.
You can read the rest of the CNET article by clicking here. The implications of the new intellectual property are just now coming into focus. The new intellectual property combines technology (technology measures to that enable IP proprietors to control the use of their products downstream) with law (provisions like the DMCA) to make it possible for property rights to take entirely new forms. Prediction: In the next decade, the new intellectual property will play a role in intellectual debates about legal theory that is comparable to the role played by the new property in the 60s and 70s. A while back I posted on Margaret Jane Radin's Information Tangibility (download from SSRN here), which deals with a very important dimension of this issue. Don't be the last legal theorist on the block to read Margaret Jane's important paper!
Lon Sobel's paper from this morning's session is available here. And the wonderful folks at Berkeley have put together a really spiffy resource page, click here.
Friday Workshop at Buffalo
At Buffalo, Lynn Mather does an internal workshop on How Does What Clients Want Link to What Lawyers Should Do? An Empirical
Look at Lawyer-Client Relations. It is up to 27 in Buffalo; maybe it will be al fresco?
If a liberal state is discussing or negotiating with an internal cultural group, collective rights that seem to reinforce the inequality of the sexes within the group, if the women (including the younger women) of the group have been consulted and adequately represented during the course of the negotiations, and if they have stated in large enough numbers and in clear enough terms that they support their group’s illiberal norms and practices that seem oppressive of them, what should the state do?
Democracy seems to require in such a case that the group rights claims not be hindered and, rather, that they be strengthened, by such findings, even though an unintended consequence of granting them is very likely to be continued subordination and denial of equal rights of women within the group. But liberalism, grounded in the equal rights of individuals, would not lead to this outcome; indeed a state that values liberalism above all would have no more need to consult with the women of such a group than it need consult with slaves before it insisted upon their emancipation or with workers before it insisted upon their protection from deadly workplace hazards. Of course, such consultation might well be considered desirable, not only because of the respect it shows to some of the most vulnerable members of the society, but also because it is likely to lead to more contextually wise solutions to the problem—ones that might, because of increased awareness of conflicting interests, be applied with more caution and less speed, or that would be applied more sensitively in different ways in different contexts. But the liberal would stress that basic rights—which arguably include, along with the rights to personal freedom and to be able to work without endangerment, the right to basic, legal equality in the most intimate sphere of life—should not be granted or withheld depending on the outcome of democratic procedures. They should be guaranteed for all—even for those who would abjure them for themselves.