DRMbarassment for Us Law Professors?
posted by James Grimmelmann
In my first post about DeCSS, I gave the conventional law professor’s description of how it works, and then pointed out an obvious-in-hindsight problem with that description. In my second post, I delved (a little) deeper into the specifics of how DVDs work and showed how the explanatory hole can be plugged with some facts not normally in evidence. Along the way, we saw that the effectiveness of DVD anti-copying protections depends just as much on patent-enforced standards as it does on copyright and the DMCA.
Here are the results of some searches I ran on Lexis’s “US Law Reviews and Journals” database:
- DVD and “title key”: 2 results, neither relevant
- DVD and “disc key”: 0 results
- DVD and “disk key”: 1 result, a student note (Peter Moore, Notes & Comments: Steal This Disk: Copy Protection, Consumers’ Rights, and the Digital Millennium Copyright Act, 97 Nw. U.L. Rev. 1437 (2003)), containing the following text in a footnote: “One might wonder why a DVD burner capable of copying the disk key table could not be produced. It is likely that the owners of patents on DVDs are very careful to ensure, with licenses, that such devices are not made.”
- DVD and CSS and pressing: 34 results, only one of which distinguishes “pressing” from “burning.” That one, also by a student (Nika Aldrich, An Exploration of Rights Management Technologies Used in the Music Industry, 2007 B.C. Intell. Prop. & Tech. F. 624), points out, again in a footnote: “‘Burning’ compact discs actually requires a different technology than ‘pressing’ (replicating) discs, which is used in commercial manufacturing plants. ‘Burning’ involves putting the pits and lands on the disc by burning holes in a layer of substrate with a laser. In a ‘pressed’ disc the pits and lands are molded into the disc.’”
- DVD and CSS and (press! w/p burn!): 18 results, the only one of which using the words in this sense is the same article from the previous search.
- DVD and CSS and lead-in: 20 results, only one of which uses is talking about the location of CSS disc keys. That article—yet another student piece (Eric W. Young, Note: Universal City Studios Inc. v. Remeirdes: Promoting the Progress of Science and the Useful Arts by Demoting the Progress of Science and the Useful Arts?, 28 N. Ky. L. Rev. 847 (2001))—proceeds to assert: “These types of pirates do bitwise copies, which means that their pirate copies are precise duplicates of the originals, including the CSS encryption. The DVD player will notice no difference between such a copy and the original version. CSS cannot stop this kind of piracy.”
- DVD and leadin: 0 results
But compare:
- DVD and DMCA: 731 results
- DeCSS: 390 results
This disproportion is not healthy. We’ve collectively spilled a lot of ink over DeCSS. One might think it worthwhile to make sure that CSS actually matters, first. It does, but that fact is not at all obvious from the conventional stories. Even the exercise I’ve gone through here is itself a fairly half-assed effort. Bruce caught an important fact I didn’t get quite right. Just in doing the research for this series of posts I’ve learned all sorts of things that seem awfully relevant to any careful analysis of the role of law in controlling the distribution of media on shiny discs, and I’ve barely even scratched the surface, so to speak.
We law professors who regularly opine on high technology are often dangerously blasé about the details of the technology we’re opining on. We get caught up in the minutiae of 1201(a)(1) versus 1201(a)(2) versus 1201(b), and we don’t pay anywhere near as much attention to the surrounding web of other kinds of IP, business arrangements, and especially technical specifications as we ought to. Consider these posts another plea for better interdisciplinarity. Our students are doing a better job of it than we are.
May 14, 2008 at 7:57 pm
Posted in: DRM
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Responses (6)
Ann Bartow - May 14, 2008 at 10:24 pm
True. But scarily enough, I think we do a better job of than a lot of judges.
Ann Bartow - May 14, 2008 at 10:24 pm
True. But scarily enough, I think we do a better job of it than a lot of judges.
Ann Bartow - May 14, 2008 at 10:27 pm
Wow, I have magical instantaneous, simultaneous double posting powers. And I can’t explain the enabling technology, either.
A.J. Sutter - May 15, 2008 at 9:58 am
The wasted emphasis you’ve noticed is hardly unique. In the IP/life science field, you’ll also find a lot of spilled academic ink over false issues like “biopiracy” and minor issues like “Farmers’ Rights” with relatively little academic attention to seed ownership issues. (Activists are more on top of this.) I also expect that much of the academic fascination with law in virtual worlds will be rendered moot by (i) providers drafting tighter and less generous user agreements, and (ii) waning user-stickiness of alternative worlds, a phenomenon already being seen here in Japan.
One of the reasons for this waste may be that law profs are more rewarded for publishing than for solving problems, but I admit that that factor alone might explain what makes certain topics so attractive. Maybe it’s also a bit of a raindrop effect, where articles condense about some nucleus topic that someone whom others read has latched onto. Plus the fact that you can write endlessly about a topic when you willfully refrain from entertaining the factors that might short-circuit the discussion. (Analogous to how you can make renvoi seem like a monumental problem that bounces back and forth forever, if your hypothesis is that there isn’t a suitably-drafted choice-of-law clause that applies.) But I’m just a narrow-minded practitioner.
Bruce Boyden - May 15, 2008 at 12:38 pm
There’s a couple of issues here, I think, and the first two go beyond 1201.
One is that this sort of information is hard to come by and hard for your average law professor to understand. It’s complicated here by the fact that the statute was premised on the example of DVDs and is difficult to grasp on its own terms.
A second is that even if the professor gets the technical details, the readership probably won’t, so there’s limited benefit to spelling it out in an article.
Third, I think a lot of people approach this particular subject in the following fashion: “1201 is evil. Why should I bother learning exactly *how* it is evil?”
greglas - May 16, 2008 at 10:19 am
I think James is right. The root of the problem must be the culture and incentives in legal scholarship.
Probably for most law profs, taking the time to get a superior grasp on the technical facts of an important issue is bound to have diminishing returns. And that’s not true just for learning technology: it’s also true for many other things that probably won’t help convince student editors at the top journals to publish your work.
But, otoh, should any of us care if student editors at the top journals want to publish our work? Forgive me for being cynical, but the best strategy to pull that off is probably to take a central legal theory that students are exposed to in their first year casebook (I won’t name one) and either refute it or propose a slight tweak. Plus, write the cover letter on a “top” letterhead. The competitive publishing game isn’t really worth the candle if you’re serious about what you’re doing. I think we owe it to ourselves to care less about placement and — to the extent possible — we should keep placement thoughts from influencing our research practice.
In fact, imho, “good” legal scholarship demands attempts at interdisciplinary research that probably don’t “pay off” professionally. And not just w/r/t the tech issues in cyberlaw, but w/r/t contemporary theory, philosophy, the social sciences, etc. And, so I’m not misunderstood, I think there are many law profs out there that get this and do this.
Just my two cents (agreeing with James).
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