DRAFT 2/10/98Draft as of March 1997Made available to CSTB IP study committee for its workPlease do not cite, copy, disseminate, or disclose to others without permission of the authorsTECHNOLOGICAL PROTECTION FOR COPYRIGHTED WORKSbyPamela Samuelson* and Benjamin D. Black**"Something there is that doesn't love a wall."1* Professor, University of California at Berkeley, School of Information Management and Systems and School of Law. I wish to thank the organizers of the Thrower Symposium held at Emory Law School on February 22, 1996, for the opportunity to present this paper. I am also grateful to Robert J. Glushko, Marci Hamilton, Michael Lesk, Ejan Mackaay, Paul Resnick, Mark Stefik and Bernhard Tonniger for their insightful comments on an earlier draft of this article.** Law Clerk, Honorable Norman Stahl, First Circuit Court of Appeals. 1 Robert Frost, The Mending Wall, THE NEW OXFORD BOOK OF AMERICAN VERSE 395-96 (R. Elman, ed. 1976).2INTRODUCTION Many copyright owners feel threatened by digital technology because works in digital form are vulnerable to uncontrolled replication and dissemination in global networked environments.2 Digital technology is, however, not just part of the problem; it may also be part of the solution. IBM, as well as numerous start-ups, are actively developing digital technologies that control access to, and monitor the usage of, copyrighted works in order to control digital copyrighted works in a manner that is not currently feasible in the print.3 The creators of electronic copyright management systems (“ECMS”) foresee a time when technology will allow a copyright owner to control, sell and license practically every use of a digital work.4 More generally, “access control technology,” like encryption or password systems, will be widely used by anyone seeking limiting access to digital works, regardless of whether the copyright owner is facilitating a transaction with a consumer.5 These technologies hold much promise as a way to relieve copyright law of the burden of regulating a wide range of uses of digital information products, most of which, by virtue of the highly decentralized nature of existing digital networks, would be difficult for the law to regulate effectively.6 2 See, e.g., National Information Infrastructure Task Force, Report Of The Working Group On Intellectual PropertyAnd The National Information Infrastructure (Sept. 1995) (hereinafter "White Paper"). This vulnerability is said tobe a factor inhibiting the growth of markets for digital information products on the "information superhighway." Some publishers are unwilling to make content available on this highway unless they have assurance that protection of some kind is available to avert market-destructive appropriations of this content, as might occur if thefirst purchaser of the content posted it on publicly accessible bulletin board systems, enabling members of the public to get access to the content without payment of a fee to its publisher. Id. at --.3 As one publisher has aptly put it, "the answer to the machine is the machine." Charles Clark, The Answer to the Machine Is the Machine," PROCEEDINGS OF KNOWRIGHT '95 (1995). Examples of these products include Site Shield, which prevents downloading of images from the Internet. See Dan Goodin, A Market Waiting to Happen, INTELLECTUAL PROPERTY (Sept. 1997), at 34, available online, http:\www.ipmag.com\watrmark.html. See, e.g., Proceedings On Technological Strategies For Protecting Intellectual Property In The Networked Multimedia Environment, 1 J. INTERACTIVE MULTIMEDIA ASS'N 1 (Jan. 1994) (cited hereinafter as "IMA Proceedings"); see also Christopher Burns, Copyright Management And The NII: Report To The Enabling Technologies Committee Of The Association Of American Publishers (May 31, 1995); Mark Stefik, Letting Loose the Light: Igniting Commerce in Electronic Publication (March 7, 1995). Europe is also organizing to standardize copyright management systems to monitor all on-line uses for infringement and licensing violations. See Workshop on Technical Mechanisms for IPR Management in the Information Society, Brussels, 10th June 1996, available online, http://www2.echo.lu/oii/en/ipr.html. The European Commission (EC) is financing the COPEARMS (Co-Ordinating Project for Electronic Authors' Right Management Systems) to develop and implement interoperable ECMS. For a full description see COPEARMS: Esprit Project 20460, The IFLA Offices for International Lending and Universal Availability of Publications (UAP), available on PORTICO: THE BRITISH LIBRARY, http://www.bl.uk/ & http://minos.bl.uk/information/ifla/copearms.html.4 See, e.g., Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 CONN. L. REV. 981, 983 (1996). 5 Scholars describe these systems in myriad ways, such as ECMS, see id., Automated Rights Management, see, e.g, Tom Bell, Fair Use vs. Fared Use: The Impact Of Automated Rights Management On Copyright's Fair Use Doctrine, (Forthcoming), or trusted systems technology, See Stefik, infra note --, at 138. For analytical clarity, we distinguish between two types of technologies. We use the phrase, “access control technologies” as a general term that applies to any technology a copyright owner could use that restricts access to a copyrighted work and thus would be subject to the proposed anti-circumvention provisions. See infra Part II. Electronic Copyright Management Systems are a specialized form of access control technology designed facilitate online transactions involving the sale and licensing of copyrighted works by providing owners broad transactional control to track usage and discover infringement. 6This is one issue on which the broadest spectrum of those involved in the debate over how to regulate digital works agree. Compare John Perry Barlow, The New Economy of Ideas, WIRED 2.03 (March 1994) (discussing the difficulties of enforcing copyrights in digital networked environments) with Statement of Bruce Lehman, AssistantSecretary of Commerce and Commissioner of Patents and Trademarks, on S. 1284 & H.R. 2441, before the 3Although prospects for technological protection for copyrighted works are bright, technology is not a panacea. Copyright owner’s principal concern is that what one technology can do, another technology can generally undo.7 Although domestic court decisions currently permit copyright owners to control the