DRM Misuse: An Emerging Doctrine in Search for Principles

Abstract

The advent of the digital age and the wide diffusion of copyrighted works over the Internet have brought about a drastic challenge to the pre-existing rules and legal standards governing the exchange of information. This article points out one of the ways the development of these new technologies has altered the boundaries of copyright, specifically by enabling copyright holders to strategically expand the scope of protection through a strategic use of Digital Rights Management (hereinafter, DRM). After a brief account of the qualities of these technologies and their contribution to the development of online markets for copyrighted works, the article warns against the common practice of using DRM as a tool to stretch the legal protection conferred by IP law.It surveys the approach taken by US courts in dealing with specific cases of abuse of DRM in the copyright context, advancing some considerations also on the pro-competitive benefit that may derive from these practices, and thus the different outcome that would result from an application of a purely antitrust-focused judicial scrutiny to the same situation. It then identifies some potential improvements of the current legal rules governing misuse of DRM, and recommends a two-fold approach to the assessment of the legality of such practices. In the final chapter, a legal test where antitrust analysis and IP principles are intermingled is proposed to facilitate this complex assessment.