Fair Use Infrastructure for Copyright Management Systems

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. We argue that the social policies of fair use would be better served by a CMS framework that mimics as closely as possible the fair use access paradigm of published print media: low cost, potentially anonymous access exercised at the user's discretion. After reviewing the options for accommodating fair use within the framework of technological protection, we propose the creation of a "trusted third party" CMS infrastructure that includes the Library of Congress. We suggest that as a condition of anti-circumvention protection, copyright holders who choose to encrypt their works for public distribution be required to deposit the key with the Library of Congress. Fair users would gain access by requesting the key from the Library or from a private repository within the network, rather than by presenting a "fair use license" to the copyright holder. The identities associated with key requests would be kept legally secure, under legislation similar to current protections for library patronage records. Finally, we review the implications of this proposal, cautioning that it is a second-best alternative to unimpeded fair use access.