Digital Rights Management and the Process of Fair Use

Producers of digital media works increasingly employ technological protection measures, commonly referred to as "digital rights management" (or "DRM") technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself noninfringing. The academic literature on fair use in digital media has suggested several possible ways to resolve the tension between fair use on the one hand and DRM on the other. Among the more provocative possibilities is that DRM technologies themselves may evolve to incorporate greater built-in protections for end-user rights. This article examines several such proposals and finds that they are not likely to provide users with the same measure of protections for fair use of copyrighted works that exists in the offline world. The failure of these proposals, however, does not suggest that the broader goal of protecting fair use rights in digital media is unattainable. It is possible to advance much more closely towards that goal by altering the design philosophy of DRM technologies to focus more on the processes by which fair uses occur and less on attempting to replicate the substantive law of fair use in machine-administrable form. The article concludes by outlining one possible system engineered to protect the process of fair use