The Private Life of DRM: Lessons on Information Privacy from the Copyright Enforcement Debates

Abstract

This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of substantive concepts of information privacy interests. This observation suggests that claims on information privacy are unstable, and may unintentionally bolster the positions that their proponents intend to reject. The Article cautions against adopting new definitions of privacy interests for the digital age, and in favor of focusing policy choices on who uses new technologies and for what ends.