Fair Use Infrastructure for Copyright Management Systems

TLDR

The fair‑use doctrine balances free speech, exclusivity, and bargaining, but current CMS proposals address only market‑failure concerns and ignore other fair‑use functions, risking erosion of the doctrine. This paper aims to counteract the displacement of fair use by CMS rule sets. We propose a framework that mitigates CMS‑encoded rule sets from undermining fair‑use protections. Our analysis shows that CMS access and use rules can either prohibit unauthorized use entirely or grant owners discretionary power to limit fair use, thereby displacing the doctrine.

Abstract

In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment principles of freedom of speech and the copyright system's grant of exclusivity, and facilitating bargaining between copyright holders and potential users. CMS technology addresses only one of these purposes: that of avoiding market failure due to comparatively high transaction costs. Current CMS proposals make no provision for addressing other fair use functions. Similarly, although recent legislation concerning CMS affirms the continued viability of fair use in digital media, it makes no provision for access to CMS-protected works. Thus, the access and use rules encoded within CMS potentially displace the carefully-crafted policies of the copyright legal rule, either by prohibiting unauthorized access and use altogether, or by allowing the copyright owner the technological discretion to constrain the degree of fair use.