Interoperability and the DMCA: comprehensive look at problems, some good solutions

Aaron Perzanowski sez, "This article looks at the ways in which the DMCA's anticircumvention provisions interfere with interoperability. It argues that the obstacles the DMCA creates to the development, distribution, and use of interoperable devices and services is at odds with the ways in which IP law has traditionally regulated interoperability. This results in strong patent-like rights over DRM-restricted platforms. The paper then considers whether antitrust law can be used to correct the DMCA's shortcomings. In the end, I suggest that section 1201(f) needs to be rewritten to accommodate data interoperability.

This paper is in some respects a follow on piece to an earlier article, The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident, which you were kind enough to feature here on Boing Boing."

Congress enacted the DMCA to enable thriving online markets for
copyrighted works by providing rights holders with tools to guard against
unauthorized access and widespread infringement. Despite Congress’s efforts, the
DMCA also gave rise to broad powers over playback and distribution technologies
that interfere with IP’s longstanding tolerance of unauthorized unilateral
interoperability. Ironically, this control over interoperability could hamper the further
development of the very markets the DMCA was meant to foster. Likewise,
restrictions on interoperability conflict with copyright’s ultimate purpose–the
dissemination and use of cultural works in the progress of science–by preventing
authorized purchasers of copyrighted material from making use of those works.

Antitrust offers at best an imperfect means of redressing the DMCA’s impact
on interoperability. Not all interference with interoperability gives rise to cognizable
competitive harms. And the deference antitrust shows towards legitimately acquired
IP rights requires rights holders to exceed the scope of their statutory grants before
facing antitrust liability.

This is a great, comprehensive paper -- a really engaging history of the interop problems that have arisen in the ten years since the DMCA, and some good, simple reccos for fixing this stuff. If I have one complaint, it's this: the article fails to look at the moral, "maker" case for interoperability, that fundamental right to re-use and re-imagine your property as you see fit. There's a dignity in being able to control your environment that our minds deeply crave, and rules that prevent us from reconfiguring our tools strike at that dignity.

(Thanks, Aaron!)