Antitrust Barriers to IP Protection

by on August 26, 2004 · 4 comments

Reuters is reporting that the European Commission is launching an antitrust investigation into a plan by Microsoft Corp. and Time Warner Inc. to acquire joint control of U.S. ContentGuard Holdings, a firm that makes digital rights management (DRM) technologies to help protect copyrighted files from unauthorized use.

This is foolish. Most IP providers today are struggling to win a technological arms race against users who are hell-bent on devising ways around most forms of content protection. My own view of this technological arms race is that it is a good thing overall and that government shouldn’t enter the debate and try to tilt the balance one way or the other. Generally, therefore, I oppose new laws like the DMCA and the Induce Act, but I also oppose laws cutting the other way, like proposals to expand compulsory licensing. When I see an announcement that government is taking steps to limit collaborative efforts by industry to create new DRM techniques or products, I view it as an unnecessary government barrier to the marketplace’s ability to protect intellectual property. (See this intro to the “Copy Fights” book I co-edited with Wayne Crews for additional details).

To elaborate, if two or more content providers want to get together and try to devise new DRM systems to protect their content, power to them. They should have every right and freedom to do so without being subject to government interference (including antitrust which hunts like this latest EU case). On the other hand, if someone out there circumvents their new DRM scheme the day after it hits the market, those companies should not come running to government seeking redress. Let the technological arms race continue I say! I’ll be expanding upon this theme in an upcoming blog entitled Is DRM the Devil?

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