Elkin-Koren on Anticircumvention Law and Consumers-as-Participants

Prof. Niva Elkin-Koren has uploaded a paper titled Making Room for Consumer Under the DMCA, to be published soon in the BTLJ. The paper provides a terrific analysis and introduces an original perspective, proposing to perceive users of copyrighted works as participating consumers in information markets. This perspective underlies the argument for granting consumers more solid and meaningful protections within copyrights law, inter alia, a right to access cultural goods - despite DRMs. From the abstract:

I offer a view of information consumers that is based on the theoretical framework of copyright law. Developing a notion of consumer protection in cultural markets involves expanding the focus on economic-consumers (consumers-as-shoppers) to incorporate an understanding of consumers as citizens and participants in creative processes. To make room for consumers under copyright law it is necessary to re-conceptualize the notion of ‘information consumer' and acknowledge the participatory role of consumers under copyright theory. The perception of consumer-as-participant adds a new dimension to standard copyright analysis, which is particularly significant in the environment of user-generated content.

The inspiration for incorporating consumer discourse within copyright analysis originated from two U.S. decisions, Lexmark and Chamberlain, which addressed the interests of consumers in tangible articles of commerce (a printer cartridge and a garage door opener). The Court of Appeals in those cases concluded that consumer rights call for a narrow construction of the DMCA. I argue that the same rationale that convinced the courts to limit the scope of the anti-circumvention rules in Lexmark and Chamberlain should be applied in other contexts involving more conventional copyrighted works such as video games, music, video clips, and artistic images.