Speaker: Dan L. Burk, Professor, University of Minnesota Law School

Date: Wednesday, February 02, 2005 4:15-5:15p

Location: 301 College Avenue, Seminar Room

Abstract -

In this talk I examine certain social costs of deploying digital rights management or “DRM” systems to protect copyrighted content. The calculus of costs and benefits for such technical self-help is highly complex, and the prospect for successful “self-help” via such measures is uncertain due to the deterministic nature of the technical design. DRM systems essentially provide an automated alternative to legal protections such as copyright. But because it is impossible to program complex situational responses into DRM systems, DRM constitutes the equivalent of a legal rule, rather than a legal standard. Thus the literature on rules and standards is useful in evaluating the effects of DRM deployment. As this literature would predict, DRM shifts discretion away from the user, toward the producer, and DRM design therefore resembles legal rule making rather than legal standard setting. Previous analyses of rules and standards suggests that rules are preferable when the costs of ex ante decision-making will be lower than the costs of ex post discretion and adjudication. Ex ante DRM design decisions by content producers are also likely to be driven by the character of the technology. At the same time that DRM stands in for a legal rule, it also comprises a technical “standard.” For reasons of interoperability and trust management, DRM will tend to converge on a single standard. This means that DRM will tend toward a type of technological “monoculture,” presenting opportunities for the standards owner to engage in anti-competitive market distortions. This result will tend to be reinforced by legal anti-circumvention measures, a trend already apparent in the employment of the DMCA in some court decisions. However, more recent appellate decisions seem determined to resist this result, employing statutory re-interpretation and the threat of anti-competition sanctions to reverse the worst effects of DRM market distortion.

Bio -

Dan L. Burk is the Oppenheimer, Wolf and Donnelly Professor of Law at the University of Minnesota, where he teaches courses in Patent Law, Copyright, and Biotechnology Law. An internationally prominent authority on issues related to high technology, he is the author of numerous papers on the legal and societal impact of new technologies, including articles on scientific misconduct, on the regulation of biotechnology, and on the intellectual property implications of global computer networks. He is perhaps best known for his work in the area of “cyberlaw,” where he has been a leading figure in the debates surrounding Internet jurisdiction, trespass to computers, and the deployment of digital rights management systems. Professor Burk holds a B.S.(1985) in Microbiology from Brigham Young University, an M.S. (1987) in Molecular Biology and Biochemistry from Northwestern University, a J.D. (1990) from Arizona State University, and a J.S.M. (1994) from Stanford University. Prior to his arrival at the University of Minnesota, Professor Burk taught at Seton Hall University in New Jersey. From 1991 to 1993 he was a Teaching Fellow at Stanford Law School. He has also taught as a visitor at the University of California at Berkeley, University of Tilburg, University of Toronto Faculty of Law, George Mason University, Cardozo Law School, the Ohio State University Programme at Oxford, and the Program for Management in the Network Economy at the Universita Cattolica del Sacro Cuore in Piacenza, Italy.

If you would like to meet with Dan during his visit, please contact Anat Nidar-Levi.


For more information please contact Jeff Hancock.