Fair Use By Design or By Law? Stefan Bechtold Stanford Law School / University of Tübingen, Germany April 16, 2002

2 Overview I.Fair use by design or by law II.Why fair use by design is important III.Why fair use by design is insufficient IV.Where fair use by design is appropriate

3 DRM has been criticized for impeding fair use, free speech and innovation Different solutions to solve the tension between DRM technology and legal notions of fair use, free speech and innovation exist: –Address problems at the level of the legal framework surrounding DRM (legislative amendments, influential court decisions) –Address problems directly at the technological design level of DRM systems Attempt to bring DRM into accordance with fair use, not to demonize DRM Semantic web as a prime opportunity to code fair use into DRM technology I. Fair Use By Design or By Law

4 II. Why Fair Use By Design is Important 1.DRM is progressive, the law is conservative  The nature of legal reasoning makes it hard to deal with disruptive technologies which pose problems dissimilar to the existing technological environment  Examples: legal discussions about - affirmative "user rights" - using protected content on a platform not endorsed by the content or DRM technology provider - whether fair use guarantees the "copying by the optimum method or in the identical format of the original"  In the context of DRM design, the important question to ask is not how the current legal framework allocates rights of copyright holders, the public and individual users, but how a future DRM policy framework should organize fair use, free speech, and innovation  Address fair use issues not at the level of the legal DRM framework, but at the technological design level of DRM systems

5 1.DRM is progressive, the law is conservative 2.DRM evolves fast, the legal discussion does not  The major criticism of the anti-circumvention regulations (DMCA and European Copyright Directive) started after the regulations had been enacted  Very hard to change existing legal regulations  By addressing fair use issues at the technological design level, this problem could be circumvented II. Why Fair Use By Design is Important

6 1.DRM is progressive, the law is conservative 2.DRM evolves fast, the legal discussion does not 3.DRM is global, the legal discussion is not  DRM discussions are focussed on the U.S.  Copyright law is relatively harmonized on an international level  similar problems in other countries  Dialog between lawyers/scholars/activists in the U.S. and Europe, e.g., has been limited. European Copyright Directive may pose similar threats to fair use as the DMCA  Important decisions about the future of digital content will not be made by the U.S. Congress, but by international organizations (WIPO, WTO)  By addressing fair use issues at the technological design level, a solution with an international reach could be provided II. Why Fair Use By Design is Important

7 III. Why Fair Use By Design is Insufficient Protection by TechnologyContractsTechnology Licenses Technological Protection Legal Circum- vention Protection Legal Circum- vention Protection Copyright Law 1.DRM is more than technical protection

8 Protection by TechnologyContractsTechnology Licenses Technological Protection Legal Circum- vention Protection Legal Circum- vention Protection Copyright Law

9 1.DRM is more than technical protection 2.DRM and the fuzziness of fair use  Limits the extent to which fair use can be coded III. Why Fair Use By Design is Insufficient

10 1.DRM is more than technical protection 2.DRM and the fuzziness of fair use 3.DRM and innovation  DRM to protect software/hardware platforms - Protection against platform competitors: Sony v. Bleem and Connectix, Blizzard/Vivendi v. bnetd - Protection against competing applications running on the platform: Sony v. Aibohack  hard to solve such problems at the technological design level (?)  Hard to code under which conditions content can be reused (?) III. Why Fair Use By Design is Insufficient

11 1.DRM is more than technical protection 2.DRM and the fuzziness of fair use 3.DRM and innovation 4.DRM and incentive structures  DRM technology providers will not implement all aspects of fair use  Copyright holders will always object to some fair uses  Legal Solutions: - Mandate fair-use-friendly DRM design (AHRA, 17 U.S.C. § 1201 (k) (2), European Television Directive, even § 3 (c) of the CBDTPA/SSSCA) - Right to hack (DMCA) - Key Escrow (European Copyright Directive) - "Anti-circumvention misuse" (Dan Burk) III. Why Fair Use By Design is Insufficient

12 1.DRM is more than technical protection 2.DRM and the fuzziness of fair use 3.DRM and innovation 4.DRM and incentive structures  Fair use by design will not render fair use by law unnecessary  The goal is to shift as much fair uses as possible from law to design III. Why Fair Use By Design is Insufficient

13 1."Private copying"  Application of rights management languages not to protect copyright holders, but to protect users, libraries etc. (  semantic web) 2.Privacy  Use of privacy-enhancing technologies (  semantic web) 3.Cryptography research  No security through obscurity 4.Innovation?  Work has to be done in the area of rights management languages and DRM in general (  semantic web): - How to define in a machine-readable format how content can be reused - How to enable modular innovation ("clip-art phenomenon") IV. Where Fair Use By Design Is Appropriate

14 Stefan Bechtold