Ten years ago, a meaningful discussion of copyright law could focus almost exclusively on the federal copyright statute and related case law. At that time, the primary powers wielded by copyright holders were the rights granted explicitly by the statute, such as the exclusive rights to authorize duplication, distribution, adaptation and performance. The primary constraints on copyright power, meanwhile, were similarly found in statutory text. Section 107, for example, forbid copyright holders from enforcing their rights against “fair use” infringements like parody and scholarship. Section 102 made clear that copyright protection could not be used to restrict access to ideas, concepts, and principles. In short, the relationships between and among authors, readers, viewers and listeners were dictated by explicit government rules.
Today, technology takes center stage. For instance, in the iTunes music store, it is not copyright law but encryption algorithms that restrict consumers from playing purchased tunes on portable devices other than the iPod. Likewise, on music CDs distributed by Sony BMG, it is not the threat of litigation but computer software that discourages purchasers from using their computers to copy music for friends or their own personal use. These are just two among many examples of what has come to be known as “digital rights management” (DRM) technology. And, with DRM now increasingly mainstream, it is finally time to ask publicly a question that academics, technologists and some policy makers have quietly been discussing for some time: How should copyright law respond?