Temptations of the Walled Garden: Digital Rights Management and Mobile Phone Carriers

Content industries have long heralded Digital Rights Management (“DRM”), the use of technological protection to control and meter access to digital content. They view DRM as the key to securing copyrighted expression against massive digital piracy and thus to enabling the industries to distribute their movies, sound recordings, and books in the digital network environment. Receptive to the content industry call, Congress prohibited the circumvention of such technological protection measures when it enacted the Digital Millennium Copyright Act of 1998 (“DMCA”). It did so with the express purpose of furthering copyright law’s goal of promoting the creation and dissemination of original expression. As the Senate Report accompanying the Act announced, by creating “the legal platform for launching the global digital online marketplace for copyrighted works,” the anti-circumvention provisions sought to “make available via the Internet the movies, music, software, and literary works that are the fruit of American creative genius.” Yet, ironically, DRM is often used to lock in consumers to ancillary products and services in ways that might hamper markets for distributing cultural expression. Apple’s iTunes is the most widely publicized example. Apple’s combined ACC file format and Fair Play DRM render music and video downloaded from iTunes unplayable on portable media players other than Apple’s iPod. Likewise, Apple’s iPod will not play