Licensing and Design

Ed Felten comments, a propos of my last post about identifying the “thing” that we say is “encumbered” by DRM:

You’re looking at the question backward. Don’t ask where users get the authority to make noninfringing use of copyrighted works. Users have that right inherently, in the absence of some law to the contrary. Ask instead where the copyright owner gets the authority to restrict noninfringing uses.

Exactly: I’m looking backwards at a question that we ordinarily see in copyright terms. If we assume that it’s a copyright question, then you’re right: The copyright baseline is that the reader/viewer/listener has all of the rights in the work, and copies of the work, subject only to limitations granted to the copyright owner by statute. But why assume that it’s a copyright question? Different domains offer different baselines. Assume, instead, that it’s a tangible property question. Or, an antitrust question. Or, a contract law question. Or, a patent law or trademark law or secured transactions or even First Amendment question. The issue that pops up in each of these areas — in very different ways, in terms of legal doctrine — is whether the person or firm that produces an X has the authority, backed by some legal entitlement, to ensure that X is used or consumed as the producer declares it should be. Are there places in the law where readers/viewers are prohibited legally from doing things with X because it interferes with the producers’ declaration of what X is? Sure; patent and trademark law are obvious examples. Is copyright law different? Intuitively, we want to say yes, but when it comes to copyright-that-affect-tangible-objects, it’s not clear to me why we should get a different result. Characterizing copyright as a regime of limited rights for authors just re-describes the state of the law.

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