What Does Apple's Decision to Remove DRMs Mean for File Sharing?

Wendy Gordon, Guest Blogger
Bacon-Kilkenny Distinguished Visiting Professor of Law
Fordham University School of Law
January 8, 2009

Now that Apple is removing DRM from its itunes songs, newspapers are trumpeting the move in ways like this:
(That's the headline from yesterday's New York Times)

The copyright purist that lurks in me has the urge to remind the news-writers that removing DRM doesn't also remove copyright's legal restraints. But then.... if no one corrects the error, and the public begins assuming that an absence of DRM amounts to a permission to copy.... and if the record companies don't correct the prevalent error... then music copyists will get a defense of IMPLIED CONSENT wherever DRM is absent from a song they've purchased.

If so, that in turn would make the newspapers' overstatement true. It would also make what too often is custom's vicious circle, into a virtuous one.

In addition, maybe the implied-consent defense (in the form perhaps of a quasi-estoppel argument) would even extend to people who copy recordings they didn't initially purchase. After all, it's not crazy for people to think that copyright owners could consent to what's sometimes called 'piracy' and sometimes called 'sharing'. Un-negotiated copying can serve the copyright owner's self-interest in many circumstances, as Ariel Katz, Mike Meurer, Doug Lichtman and others have reminded us.

Of course, the newspapers aren't the only ones doing the work of turning custom's wheel toward the public's direction. See, e.g., http://www.centerforsocialmedia.org/resources/fair_use/ (Best Standards project of Peter Jaszi and Pat Aufderheide, now joined also by Lewis Hyde and others.)

For more on consent and copyright, see e.g., Jennifer Rothman's piece, "The Questionable Use of Custom in Intellectual Property" in Virginia Law Review (2007). For the Katz piece, see Ariel Katz, "A Network Effects Perspective on Software Piracy" University of Toronto Law Journal 55 (2005), and for Mike Meurer and the others, see their price discrimination articles.


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