Douglas Lichtman of the University of Chicago has a sensible paper on digital rights management technology:
Legal rules in every area of human interaction are implemented through a combination of powerful public mechanisms and weaker but less costly private ones. With the advent of DRM, copyright law is today no different. The task now is not to legislate DRM out of existence, but instead to follow the model adopted in every other arena: calibrate copyright law such that it harnesses the very real advantages of technological enforcement while at the same time keeping an appropriately wary eye on what might turn out to be overly aggressive uses.
This is exactly the way the issue should be approached. My only quibble is with the idea that there are people trying to “legislate DRM out of existence.” All we DRM critics are trying to say is that it ought not be singled out for special legal status in statute. There isn’t a federal fence-hopping statute, and there shouldn’t be a federal anti-circumvention statute.
In particular, I hope that Prof. Lichtman pursues this line of inquiry further:
With respect to DRM in the form adopted by iTunes, meanwhile, maybe copyright law should adopt nuanced rules like those that today limit the scope of the privilege of self-defense. The commonality here is that in both instances self-help ought not be allowed to become too common. Frequent self-defense would give rise to a vigilante state; widespread iTunes-style restrictions would reduce hardware competition by in essence making it impossible to enter the hardware market without simultaneously entering the relevant content business as well.
This is, I think, the most compelling critique of the DMCA: not that it gives content owners too much control over their own content, but that it needlessly balkanizes media technologies into mutually incompatible platforms controlled by companies like Apple and Microsoft.
Prior to the enactment of the DMCA, we had “nuanced rules” governing the intersection of copyright and technology. The Supreme Court, in its 1984 Sony Betamax decision, stressed the need to insure that the monopoly granted by copyright law did not interfere with “the rights of others freely to engage in substantially unrelated areas of commerce.” The courts were doing a pretty good job of striking that balance.
But the DMCA threw that evolving body of law out the window, replacing it with a blanket anti-circumvention rule. That rule has allowed the monopoly granted by copyright to bleed into monopolies in “substantially unrelated areas of commerce,” such as MP3 players, DVD players, televisions, etc. All repealing the DMCA would do is restore the courts to its proper role of fashioning “nuanced rules” that properly balance competing interests as the Supreme Court did in Sony and Grokster.