[ EEPI-Discuss ] DRM and The Constitution

[Lauren Weinstein <lauren@vortex.com>]

------- Forwarded Message

From: David Farber <dave@farber.net>
Subject: [IP] more on "DRM"
Date: Thu, 16 Jun 2005 12:03:55 -0400
To: Ip ip <ip@v2.listbox.com>


Begin forwarded message:

From: "Michael Froomkin - U.Miami School of Law"  
<froomkin@law.miami.edu>
Date: June 16, 2005 9:40:31 AM EDT
To: David Farber <dave@farber.net>
Cc: Ip ip <ip@v2.listbox.com>
Subject: Re: [IP] more on "DRM"
Reply-To: froomkin@law.tm


[for IP]

In this debate between my friend Simon Higgs and Prof. Peggy Radin,  
one of the US's leading property and cyberlaw scholars, I'm afraid  
Simon has got it all wrong.

The passage he quotes actually makes Peggy's point.  The rights that  
copyright holders get are *statutory* rights, not constitutional  
ones; the Constitution merely empowers Congress to define what rights  
are appropriate, and it's done so in a way that creates a set of  
rights smaller than the set of powers that current technologies seek  
to claim for the sellers.

One of the problems with D-"R"-M is that the "rights" it seeks to  
"protect" usually go well beyond what Congress has legislated -- to a  
point where they are not rights at all, but just grabby.

Two examples will make this clear. (1) The Supreme Court has said  
that we have a right to "time shift" a broadcast -- record it now,  
play it later. Some DRM systems try to make this impossible.  Calling  
that "rights" protection is misleading, since what's being stopped  
isn't part of the right.  (2) The copyright statute gives us all a  
right of fair use. D-"R"-M that makes any copying impossible isn't  
illegal -- but it's "protecting" the content in a way that materially  
exceeds the scope of the right granted by copyright law.

If the average person "knows" something different -- for example  
"knows" that Copyright comes straight from the Constitution without  
the mediating institution of Congress whether acting alone or  
implementing treaties -- then, once again, the average person "knows"  
something that ain't so.


- --
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                          -->It's hot here.<--


On Thu, 16 Jun 2005, David Farber wrote:


>
>
> Begin forwarded message:
>
> From: Simon Higgs <simon@higgs.com>
> Date: June 15, 2005 4:17:47 PM EDT
> To: dave@farber.net
> Cc: mradin@stanford.edu
> Subject: Fwd: [IP] "DRM"
>
>
> Peggy,
>
> Sorry to burst a bubble, but the word "Right" has a specific  
> meaning. There would be no Creative Commons without the word  
> "Right" being etched in this old piece of parchment:
>
> THE UNITED STATES CONSTITUTION
> Article 1.
> Section. 8.
> Clause 8: To promote the Progress of Science and useful Arts, by  
> securing for limited Times to Authors and Inventors the exclusive  
> Right to their respective Writings and Discoveries;
> http://www.house.gov/Constitution/Constitution.html
>
> On the other hand, Technological Protection Measures are what  
> exactly? Firewalls? Fuses? Overload shutdown circuits? Electronic  
> prophylactics? Helicopters? Guns? TPM has almost zero meaning  
> outside the narrow world of WIPO for the average person. But even  
> the average person *KNOWS* there are Constitutionally protected  
> Rights and they understand the concept of managing those rights  
> even if they spend all their time trying to circumvent them.
>
> Best Regards,
>
> Simon Higgs
>
>
>
>
>> From: David Farber <dave@farber.net>
>> Subject: [IP] "DRM"
>> Date: Wed, 15 Jun 2005 11:00:50 -0400
>> Begin forwarded message:
>> From: Margaret Jane Radin <mradin@stanford.edu>
>> Date: June 15, 2005 7:57:09 AM EDT
>> To: dave@farber.net
>> Subject: "DRM"
>> I wish people would drop the term "DRM."  It was coined by those who
>> wish to claim as "rights" some things which are not actually their
>> rights, or are at best contested.  In other words, the "R" in the
>> term "DRM" begs an important legal question.  I wish people would
>> instead use the term "TPM" (Technological Protection Measures)
>> because at least it is neutral on whether or not those who deploy
>> them have a "right" to do what they're doing in locking up
>> information.  And TPM happens to be the term used in the WIPO
>> treaties, too.
>> BTW, I don't like to read on the list advertisements for people's
>> forthcoming articles.  To me that is spam.  There are plenty of
>> sources that inform us what is in the literature.
>> Peggy Radin
>> -------------------------------------
>> You are subscribed as simon@higgs.com
>> To manage your subscription, go to
>>  http://v2.listbox.com/member/?listname=ip
>> Archives at: http://www.interesting-people.org/archives/ 
>> interesting-people/
>>
>
> Best Regards,
>
> Simon Higgs
>
_______________________________________________
EEPI-Discuss mailing list information:
http://lists.eepi.org/mailman/listinfo/eepi-discuss