Copyright, rights management systems and the device paradigm1

1. This article is based on a presentation given at the 20th British and Irish Law, Education and Technology Association (BILETA) Conference, 2005, Queens University, Belfast.

Abstract

Rights Management Systems rely on, and utilize, copyright law in a (necessarily) formal and technological fashion. In doing so, however, such systems exhibit a use and consideration of copyright law as a mere device, a phrase used by Albert Borgmann to describe technologies that focus only on the end of any technological process, as opposed to involving both the important means and ends. This consideration and use of copyright law is damaging because law is generally, and should be, a focal thing, a phrase used by Borgmann to describe technologies that incorporate both the means to an end and the end in itself. An additional problem with Rights Management Systems is that the subject matter with which they are concerned, digitized information goods, also experiences a shift in their consideration and use, from being considered and used as a focal thing to being considered and used as a device.

Notes

1. This article is based on a presentation given at the 20th British and Irish Law, Education and Technology Association (BILETA) Conference, 2005, Queens University, Belfast.

2. The term ‘Rights Management System’ is used here as a shorthand for describing any technological system that has as its objectives (a) the exclusion of free (which can be understood here in both a liberty and pecuniary sense) access to copyright works that are digitized and/or stored, distributed or supplied on the distributed communications network (the internet); and (b) the control of use of such copyright works subsequent to paid and/or permitted access. Such systems are commonly, if somewhat incorrectly, referred to as Digital Rights Management Systems; the problem with this descriptor is that it implies the existence of a ‘digital’ right, a concept that is redundant. Whether one is concerned with digital goods, or non-digital goods, rights are rights, no more and no less. Hence my preference for the term Rights Management System.

3. Albert Borgmann Technology and the Character of Contemporary Life: A Philosophical Inquiry University of Chicago Press, Chicago, 1984.

4. Admittedly, one could simply purchase the firewood needed for the hearth, a practice that would minimize the validity of the statements concerning the commanding presence of the hearth and the continuity with the world that it establishes for the individual using it. However, even if one simply purchases the firewood, one still has to be able to know how to use the firewood—one still has to be able to engage with the hearth. In this fashion, the hearth is more focal thing than device.

5. Borgmann is following the Aristotelian tradition here, particularly the Aristotle of the Nicomachean Ethics.

6. In the sense that justice, whether it be distributive, corrective, or equitable, strives to achieve some mean concerning the difficulties that result from human existence and interaction.