The Digital Media Project at the Berkman Center for Internet & Society at Harvard Law School has issued a paper looking at how copyright, contract and technology are converging and diverging in the digital media realm. Their study chose the iTunes Music Store model as a case for the study in order to look at how the business model of the service relates to legal contexts throughout the world as well as to specific hot spots of contention in current legal discourse. The full 100-page study can be found here (PDF), and a summary of the study can be found here (PDF). The paper looks at a number of interesting issues, including the convergence of copyright and contract, the legal cushioning that props up Digital Rights Management Technologies (e.g., the DMCA), and fair use. Anyone strongly interested in this topic is well advised to just get a nice cup of coffee and read through this. Maybe you'll need two cups; it's a bit long, but it's rather revealing. What follows is a necessarily loose, free-wheelin' read of the paper.

The paper begins by outlining how contracts are being used to restrict the normal freedom given to users by copyright law in general. Contract trumps copyright, at least in the United States and Europe, which means the courts will typically arbitrate disputes based on contract and not intellectual property law per se. This is already an interesting development because of what we tend to call the shrink-wrap phenomenon: digital content is being sold in a manner more akin to software than tangible content, although even there, software buyers typically have more rights.

El Trumpage continues: one of the biggest legal questions to arise out of the DMCA and DRM-efforts relates to how these technologies conspire to essentially shut down or make exceedingly difficult the right of second sale of protected content. This is, of course, what we saw with the attempt to sell an iTunes song on eBay back in September of '03. First Sale Doctrine, the exclusive right to distribute content, would normally dictate that a purchaser of copyrighted material has the right to resell such material, provided that they have not copied it. So, our software buying pal whose rights are governed by a EULA can typically resell the software. The paper notes, however, that First Sale Doctrine is not being applied to digital content because the proposed business models supposedly need even more exclusive rights to distribution, and DRM technologies by design are not friendly to portability (as compared to, say, tangible goods such as CDs and DVDs).

The most interesting part of the paper was its treatment of fair use, if only because it looks like fair use is where the real battle needs to take place. (And didn't we already know that?)

Fair use has the potential to affect the business model of an online music service in at least two ways: (1) creating expectations on the part of the customer and (2) increasing or decreasing the willingness of copyright holders to supply music, or in other words, increasing or decreasing the amount of effort and care a music provider must put into designing its DRM system to protect copyright holders or even causing a music provider to decide no DRM system would be sufficient. Fair use is copyright law's attempt to codify reasonable exceptions and limitations to the exclusive rights normally granted to copyright holders. If a use is considered "fair" by the law, customers might expect it and are likely to make a decision whether or not to use a particular system based on to what extent that system allows the use. As the market for online music distribution grows, competition between distributors could result in an ever increasing set of allowed uses. Fair use can also be seen as a work-around of the copyright. As such, copyright holders—depending on the context—might see fair uses as dangers to their rights. As a general rule, the more fair uses allowed, the more danger a copyright holder may perceive.

The paper rightly notes that the US and Europe, acting in order to fulfill the demands of the WIPO, are drafting and enforcing laws designed to trump fair use by making it illegal to circumvent DRM. The chain works loosely as follows: copyright is trumped by contractual law, which seeks to restrict fair use in legal terms, which then backs up that by requiring adherence to the rules that are technologically enforced by DRM, which itself is protected by laws such as the DMCA in the US and the EU Copyright Directive in Europe (again, both are implementations of WIPO treaties). Some might call it a house of cards built upon the fear of fair use.

Since this post is already novel-length, I'd like to take a moment and offer additional points to consider in this matter. Fair Use has always been a thorn in the side of content producers. Long before there was digital content flowing through he veins of the 'net, there were battles over what was and was not permissible with content. The advent of tape recorders caused a shockwave. VHS and Betamax exacerbated the arguments, but the courts for the most part defended the rights of consumers. Now it's 2004, and most of the media is ignoring the real drive behind DRM. It's not piracy. It's our old pal, Fair Use.

For the first time in history, we can copy content and distribute it over massive global networks. We can put copies on every device we own, and we can even modify the content to suit our own needs. But more important, and don't miss this now, for the first time in history, the content producers and distributors have a technological way of shutting off Fair Use through contract language, DRM technology, and anti-circumvention laws. I've said it before and I'll say it again: DRM is not about piracy, it's about shutting down fair use. It makes a lot of sense when you start thinking about DRM being Sonny Bono's twin brother. It's one of the key pieces of that horrid affront to the progress of civilization: the perpetual copyright.