Should Copyright Owners Have to Give Notice About Their Use of Technical Protection Measures?

Consumers expect to be able to do at least as much with digital content as they have been able to do with analog content, and more. Yet, some copyright owners are using technical protection measures to thwart certain consumer uses of digital content, and rarely do they give effective notice to consumers about these technical restrictions. This article identifies six types of consumer harms that have occurred from inadequate notice, including lack of expected interoperability, privacy invasions, security vulnerabilities, anti-competitive lock-out as to compatible systems, risks of inadvertent anti-circumvention liability, and unanticipated changing terms and discontinued service. It discusses a range of options for responding to the notice inadequacy problem, from trusting the market to substantive regulation that would forbid use of certain kinds of TPM restrictions (such as those that invade user privacy). Because the market has yet to yield effective notice to consumers of TPM restrictions, the article recommends that the Federal Trade Commission investigate the deployment of TPMs in digital content and make recommendations for standard notices that should be provided to consumers about the TPM restrictions.