September 20, 2020

Misleading Term of the Week: "Rights"

A “right” is a legal entitlement – something that the law says you are allowed to do. But the term is often misused to refer to something else.

Consider, for example, the use of “digital rights management” (often abbreviated as DRM) to describe technologies that restrict the use of creative works. In practice, the “rights” being managed are really just rules that the copyright owner wants to impose; and those rules may bear little relation to the parties’ legal rights. Cloaking these restrictions in the language of “rights” makes them sound more neutral and unchangeable than they really are.

DRM advocates often put forth arguments that go roughly like this:

(1) we have built technology that doesn’t let you do X;

(2) therefore you cannot do X;

(3) therefore you do not have the right to do X;

(4) therefore you should be required to use technology that doesn’t let you do X.

The trickiest part of this argument is getting from (2) to (3). Using the term “digital rights management” in (1) and (2) makes the leap from (2) to (3) seem smaller than it really is.

There is at least one more common misuse of “rights” in the copyright/technology debate. This is in the use of the term “rights holder” to refer to copyright owners (but not to users). When someone says, “Content is shipped from the rights holder to the consumer,” the implication is that the rights of the copyright owner are more important than those of the user. There is no need for this term “rights holder.” “Copyright owner” will do just fine, and it will help us remember that both parties in the transaction have rights that need to be protected.