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Digital Rights Management as Private Action

At the UChicago blog, Doug Lichtman summarizes a recent short piece of his on why we shouldn’t worry so much about DRM systems. Given inherent and inevitable leakiness of DRM systems,

DRM simply makes copyright law look a lot like every other area of legal endeavor: there is a formal set of rules enforced by judges, administrative officials, and the like, and there is in addition a weak but effective overlapping capacity through which private actors can take matters into their own hands. Put differently, as I show in the piece, criminal law, trade secret protection, First Amendment jurisprudence, and indeed every other legal regime is today implemented through a combination of powerful public mechanisms and less costly but weaker private ones. DRM, I argue, simply brings copyright law into the fold

What interests me is the assumption, standard in many areas of the law, that we are seeing one “public” set of rules and a supplemental “private” set of rules.

There are a couple of ways to respond. First, it’s not clear to me that “the Copyright Act” is the “public” law here, and “DRM systems” are “private.” After all, “the Copyright Act” is regarded by many — including many advocates of strong copyright protection — as purely private law, in the sense that it solves problems inherent in the production of public goods by creating conditions for well-functioning private markets. And in light of strong DMCA prohibitions on circumvention, “DRM systems” are in many respects “public.” Many in the content community, and in Hollywood in particular, refused (and continue to refuse) to develop full-featured digital distribution mechanisms until and unless Congress provided legislative cover for them.

Which is public and which is private here is an argument with no winners, and debating the question doesn’t really advance the ball. I have the same feeling about the proposition that the DMCA “is” or “is not” part of copyright law, independent of the fact that it’s part of the same title of the U.S. Code. My view is that information law in general, and copyright law in particular, reflects an unusual and growing blend of traditionally public and private approaches. For metaphorical purposes, we might call these inseparable contributions to a single “joint work.” Open source and Creative Commons licenses fall into this category as well: to call either of them simple manifestations of common law property and contract concepts (or implementations of basic copyright law principles) is to miss something important, even fundamental, about how they operate and why they are significant.

What we need is a better analytic tool than the public/private distinction. I don’t have a good one, but it’s the problem that I’m thinking about the most these days.