Autonomy and Morality in DRM and Anti-Circumvention Law

Abstract

Digital rights management technology, or DRM, provides self-enforcing technical exclusion from pre-determined uses of informational works. Such technical exclusion may supplement or even supplant intellectual property laws. The deployment of DRM has been subsidized by laws prohibiting both disabling of technical controls and assisting others to disable technical controls. To date the public debate over deployment of DRM, has been almost entirely dominated by utilitarian arguments regarding the social costs and benefits of this technology. In this paper, we examine the moral propriety of laws endorsing and encouraging the deployment of DRM. We argue that a deontological analysis, focusing on the autonomy of information users, deserves consideration. Because DRM shifts the determination of information use from users to producers, users are denied the choice whether to engage in use or misuse of the technically protected work. State sponsorship of DRM in effect treats information users as moral incompetents, incapable of deciding the proper use of information products. This analysis militates in favor of legal penalties that recognize and encourage the exercise of autonomous choice, even by punishment of blameworthy choices, rather than the encouragement of technology that limits the autonomous choices of information users.