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September 17, 2014

Some Things Are Worth Requiring Permission

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Wednesday the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing on the portion of the Digital Millennium Copyright ACT (DMCA) that makes legally possible and enforceable strong digital rights management (DRM) and other forms of technical protection measures (TPMs). Section 1201 of the DMCA makes it illegal to circumvent such technical protection measures, and was designed in part to implement the WIPO Internet treaties.

Section 1201 has been the subject of much ire from both technologists (who didn’t see the point and who like things simple) and from the IP skeptic community (who don’t like IP and certainly don’t like anything that reinforces IP). TPMs are occasionally inconvenient, but the track record of TPMs has been one of facilitating numerous new business models for the distribution of music, video and software. Today’s content-rich environment is due largely in part to the fact that content owners have sufficient confidence that they can make their content available through reasonably secure channels, and those channels are made reasonably secure through TPMs.

Today DVDs, Blu-Rays, video-on-demand and streaming movie and music services are possible because of the various TPMs available to secure the content to only those who purchase or who are otherwise entitled to the content.

The DMCA also gives the Copyright Office an opportunity to add to the list of fair use exceptions every three years, so the law includes reasonable opportunity to exercise flexibilities for new and emerging situations. I’ve always thought this flexibility mechanism was a strong feature of Section 1201.

There have been some examples of some parties to use Section 1201 improperly, such as to insulate garage door and printer toner cartridge manufacturers from competition, but the courts have turned back those abuses. The system worked.

Technologists don’t like TPMs because they don’t like anything that gets in their way of doing what they’re trying to do, which is understandable. But property rights are one of those fundamental things that, if it gets in your way, there’s an important reason and you’d better pay attention. In other words, it’s worth some inconvenience to protect property rights. It’s worth requiring permission of a property owner to facilitate markets. Markets don’t work any other way.

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