Today I want to wrap up the recap of my invited talk at Usenix Security. Previously (1; 2) I explained how advocates of DRM-bolstering laws are starting to switch to arguments based on price discrimination and platform lock-in, and how technology is starting to enable the use of DRM-like technologies, which I dubbed Property Rights Management or PRM, on everyday goods. Today I want to speculate on how the policy argument over PRM might unfold, and how it might differ from today’s debate over copyright-oriented DRM.
As with the DRM debate, the policy debate about PRM shouldn’t be (directly) about whether PRM is good or bad, but should instead be about whether the law should bolster PRM by requiring, subsidizing, or legally privileging it; or hinder PRM by banning or regulating it; or maintain a neutral policy that lets companies build PRM products and others to study and use them as they see fit.
What might a PRM-bolstering law look like? One guess is that it will extend the DMCA to PRM scenarios where no copyrighted work is at issue. Courts have generally read the DMCA as not extending to such scenarios (as in the Skylink and Static Control cases), but Congress could change that. The result would be a general ban on circumventing anti-interoperability technology or trafficking in circumvention tools. This would have side effects even worse than the DMCA’s, but Congress seemed to underestimate the DMCA’s side effects when debating it, so we can’t rule out a similar Congressional mistake again.
The most important feature of the PRM policy argument is that it won’t be about copyright. So fair use arguments are off the table, which should clarify the debate all around – arguments about DRM and fair use often devolve into legal hairsplitting or focus too much on the less interesting fair use scenarios. Instead of fair use we’ll have the simpler intuition that people should be able to use their stuff as they see fit.
We can expect the public to be more skeptical about PRM than DRM. Users who sympathize with anti-infringement efforts will not accept so easily the desire of ordinary manufacturers to price discriminate or lock in customers. People distrust DRM because of its side-effects. With PRM they may also reject its stated goals.
So the advocates of PRM-bolstering laws will have to change the argument. Perhaps they’ll come up with some kind of story about trademark infringement – we want to make your fancy-brand watch reject third-party watchbands to protect you against watchband counterfeiters. Or perhaps they’ll try a safety argument – as responsible automakers, we want to protect you from the risks of unlicensed tires.
Our best hope for sane policy in this area is that policymakers will have learned from the mistakes of DRM policy. That’s not too much to ask, is it?