Found via BoingBoing: a 54-page law journal essay by Wendy Seltzer discussing how Digital Rights Management anti-circumvention laws prevent almost all innovation around the media that they protect.

image Scholars have described DRM’s failures to protect copyright exceptions, its failures to stop unauthorized copying, and its impact on complementary innovation. This paper takes those debates as background to focus on the foreclosure of an entire mode of development and its opportunities for user innovation.

The paper is a bit dry and hard to read; it took me all weekend to struggle through it. But for those who make the effort, the paper makes some interesting points.

One of the comparisons Seltzer makes is between the DRM-free audio CD media and the encrypted video DVD media. There has been considerably more innovation in the CD’s space than in the DVD because potential innovators (individuals and businesses alike) are not prevented from accessing the content.

Seltzer explains why DRM hinders fair use while not actually preventing copying. She discusses how and why the Digital Millennium Copyright Act’s anti-circumvention provision, which made it illegal to break DRM even on media that you own, was passed. Then she examines the effects it has had on innovation.

One of the properties of an effective DRM system is that it must not permit user modification—because if users can modify it, they can easily bypass its restrictions. This means that DRM is completely incompatible with open source software, because the entire point of open source is that it permits user modification.

Necessarily, I am barely scratching the surface of what this paper covers in its 54 pages. It goes into a great deal of detail about the purposes and history of DRM and anti-circumvention, the effects it has on innovation, and why this is a bad thing. It is fascinating and thorough. I only wish it were a little easier to read.

The paper concludes that using public law to let the content industry make its own “private law” prevents a great deal of innovation that could otherwise benefit society in general.