Fiesler (2020)

Source Details

Fiesler (2020)
Title:	Lawful Users: Copyright Circumvention and Legal Constraints on Technology Use
Author(s):	Fiesler, C. (2020)
Year:	2020
Citation:	Fiesler, C. (2020) Lawful Users: Copyright Circumvention and Legal Constraints on Technology Use. Available: https://cmci.colorado.edu/~cafi5706/CHI2020_DMCA_Fiesler.pdf (last accessed: 17 February 2020)
Link(s):	Open Access
Key Related Studies:	Edwards et al. (2010)
Discipline:	O34: Intellectual Property and Intellectual Capital
Linked by:

About the Data
Data Description:	The study examines comments left by users on the six DMCA 1201 rule making proceedings which occurred between 2000 and 2015. Using a random sample of 50 comments from each set (totalling 1,100 comments), the study thereafter uses qualitative thematic analysis to inductively identify common themes. TK https://cdn.loc.gov/copyright/1201/2015/comments-020615/EFF_merged_shortform_comments_class01.pdf
Data Type:	Primary and Secondary data
Secondary Data Sources:	Copyright Office
Data Collection Methods:	Web analytic (online user trace data)
Data Analysis Methods:	Textual Content Analysis Qualitative Coding / Sorting (e.g. of interview data)
Industry(ies):	Software publishing (including video games)
Country(ies):	USA
Cross Country Study?:	No
Comparative Study?:	No
Literature review?:	No
Government or policy study?:	No
Time Period(s) of Collection:	Summer 2017 2000-2015
Funder(s):	Center for Empirical Studies of Intellectual Property at Chicago-Kent College of Law.

Abstract

“The study of human-computer interaction requires consideration of aspects of interactions with technology that may be out-side of the control of both user and designer. One example of when a user’s question of "can I do this?" may have an answer beyond technological affordances is that of legal constraints.This paper considers an example of this phenomenon: section1201 of the Digital Millennium Copyright Act (DMCA) in the United States, which criminalizes circumventing copyright protection such as digital rights management (DRM). The DMCA also includes a triennial policymaking process that considers exemptions to the law to protect "lawful users" from adverse effects. Through an analysis of public comments of support for exemptions, this paper explores the ways in which users see the law as a hindrance to desired uses of technology. This analysis sheds light on users’ expectations for rights of use, how these expectations clash with policy, and what this might mean for technology designers. Drawing lessons from the infrastructure problem in HCI, this paper concludes with laying out solutions that can both work within policy constraints, and more importantly, work to change them.”

Main Results of the Study

The study finds that users arguments formulate patterns relating to rights of use and values around freedom and innovation. In particular:

• The use of metaphor is extremely common, e.g. by comparing digital properties to real properties. This suggests that laws surrounding digital ownership may be at odds with traditional models.
• Many comments concern the relationship between ownership and user rights, invoking a common institution closely related to the first sale doctrine. The study finds that ownership is deeply connected to the exchange of money, and a desire for accountability towards a user’s own possessions.
• Users also express frustration at the loss of functionality caused by anti-circumvention technologies; this is closely related to accessibility and anti-discrimination concerns, with users invoking human rights in relation to this.
• Lastly, users express concerns that anti-circumvention devices stifle innovation by e.g. preventing the right to “tinker”.

In short, the study considers that anti-circumvention laws impact both technology and use, contributing to their poor functionality and user frustration.

Policy Implications as Stated By Author

Broadly, the study presents two sets of policy suggestions. The first set are described as “band aid” solutions, including advocating for non-use of anti-circumvention devices by intermediaries, encouraging better interface design, and using EULAs as alternatives to technological locks. However, the second set of suggestions relate to advocating for “deep” policy change in this area, and advocating for the law to change in a way best suited to improving the user experience.

Coverage of Study

Coverage of Fundamental Issues

Issue	Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

Coverage of Evidence Based Policies

Issue	Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size:	1,100
Level of aggregation:	User comments
Period of material under study:	2000-2015