I attended this talk by Natali Helberger of the Institute for Information Law yesterday at SLS. She spoke about consumer protection and copyright, and discussed the recent Sony rootkit case. These are some notes I took about the talk.Looking at copyright law as a form of consumer protection is somewhat difficult conceptually. Helberger pointed out some important questions: (1) who is the consumer? (Is it the user? Is it the author?) (2) what conditions apply to the way the information is offered? (Just "use" in the normal consumption-model? Or "use" to include creative uses, copying uses, other social uses?)
She explained that under consumer protection law, consumer's have won some important recent rights in France: First, in the CLVC/BMG EMI Music case, EMI Music is obligated to inform consumers about the fact that a CD may not play on certain computers or car radios. Second in the Stephan P./Universal Pictures II case (4/22/05), a consumer can legitimately expect to be able to make private copies (this can only be limited by law, not by DRM) (being able to make copies is understood by the French court as an "essential part" of the purchase of the DVD).
In terms of DRM issues, she discussed treating DRM-protected CDs as a defective product, under consumer protection law. The traditional rule is: consumer goods should show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect. So, for CDs/DVDs, this would include:
-possibility of private copying
-possibility of sharing w/ family
-compatability with end user equipment
Some difficulties w/ the consumer protection approach are:
-consumer protection rules are scattered over many different laws
-the definition of who the "consumer" is and what the product is is unclear (noted above)
-c. p. law focuses on products, not services
-there are many pitfalls of labeling and transparency (what does labeling mean? as long as DRM is labeled, can a compny impose any use restricitons it wants? should there be limits to what consumers can contract away)
-danger of fragmentation (I didn't get good notes on this part)
-remedies (ditto)
Finally, Helberger proposed a "Digital content user protection" agenda
-protect individual consumer interests ("vote with the purse")
-protect social, public interests: digital content means to communicationn, self-expression and creative expression
-protect collective user interest: consumer as a countervailing power -- clarity, procedural rules, transparency.
Some questions from the audience:
-- What does the long-term consumer expectations model say about how consumers will feel about DRM control? iTunes has lots of DRM, but consumers do not seem outraged by that.
-- The company sets the user expectations/terms in the TOS/license agreements etc. -- how do reasonable expectations get set? Are people really reading the license agreements/TOS? Expectations are set by: law, blogs, media, music groups, etc.