30 Days of DRM - Day 04: DRM Misuse Sanctions (Markets)
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Tuesday August 22, 2006
Yesterday's posting focused on the role that the Competition Bureau should play in addressing DRM misuse. While that role is an important one, it is by no means sufficient to address the misuse problem. The Bureau will undoubtedly be hampered by inadequate resources, institutional bias against taking "risky" cases, and statutory limitations that constrict its role to abuse of dominance cases. Therefore, in addition to Bureau oversight, the law should contain provisions that establish strong disincentives to overreaching or abusive use of DRMs.
Last fall's Sony rootkit case, in which Sony placed hundreds of thousands of personal computers at risk for viruses and other security breaches by surreptitiously placing DRM on dozens of its music CDs, is a model illustration of the havoc that DRM misuse can generate. While the Sony case is not an abuse of dominant position case, there are good policy reasons to create disincentives to ensure that overzealous companies will not misuse DRM.
Several potential disincentives come to mind.
The toughest would be forfeiture of the copyright protection associated with the underlying work. This solution has been raised by several people, including Judge Richard Posner (who discussed copyright overreaching as a form of misuse that could lead to forfeiture), Howard Knopf, and the Foundation for Information Policy Research. While unquestionably a strong penal measure, it would provide a counter to the incentive to use DRM created by anti-circumvention legislation. Alternatively, a somewhat less penal approach, advocated by the Library and Archives Copyright Alliance (LACA) in the UK, would be to suspend the copyrights for as long as the abusive conduct remains in effect.
In addition to the threat of a loss of copyright protection, tougher damage penalties for DRM misuse may be in order. LACA calls for the inclusion of DRM misuse within the UK's Computer Misuse Act. An equivalent in Canada would be an expansion of the hacker provisions under Section 342.1 of Canada's Criminal Code, which already covers unauthorized use of a computer service. Since prosecutions for DRM misuse are unlikely, a more effective approach might be to expand the statutory provisions within the Copyright Act to cover copyright misuse. Section 38.1 currently allows copyright owners to elect to receive tens of thousands of dollars in statutory damages without the need to prove any actual damages. Expanding the provision to enable victims of copyright misuse to make a similar choice would provide some much-needed balance to this abusive provision and establish a strong discentive to DRM misuse.
Tuesday August 22, 2006
We want to enhance competition and investment in this country, and this is why we adopted this policy back in 2008 for the AWS spectrum. Let me say that the price went down by an average of 11% since then, and we will continue this way with the 700 megahertz spectrum. We launched consultation with the industry to make sure that we enhance competition and provide better choice and better rates for our consumers.