O’Reilly’s Richard Koman interviews Lawrence Lessig, and gets a preview of Lessig’s forthcoming address to the O’Reilly P2P/Web Services conference: “Preserving the Innovation Commons.” Good, meaty talk about the DMCA, Dmitry, SDMI und zo weiter. This conference is going to kick: So. Much. Ass.

Now the problem with this technique for protecting copyright law is that copyright law itself is a very subtle and balanced legal regulation. It doesn’t guarantee authors perfect control over copyrighted material. What it does is balance a certain incentive that is given to authors against certain public rights of access, and those are typically enforced through a fair-use doctrine but also through requirements that copyright be for limited times. Now those balances are typically enforced through court decisions that refuse to find infringement except when there is no fair use or except when it’s legitimate copyright. When it’s technology that’s being used to protect copyright, however, that technology doesn’t have to be as subtle or as balanced as copyright law is. So if you have a trusted system that is protecting certain content, there’s no reason that trusted system would have to free that content for purposes of fair use or protect that content for just a limited time.

Now that means that technology is actually granting copyright holders more control over content than copyright law itself would require. And that means that when provisions like the anti-circumvention provision of the Digital Millennium Copyright Act are used to protect technology that’s protecting copyright interests, the law is actually protecting a stronger copyright interest than copyright law itself would protect, because when you crack a technological protection system, even if it’s for the purposes of fair use, the tools used to crack it are criminal under the anti-circumvention provisions. So the effect of fair use in a digital rights management world can shrink quite dramatically, and what this essentially means is that the power to develop technologies that enable the distribution and research into the technologies for encryption is essentially centralized into the hands of those digital rights management companies that are supporting mainly traditional Hollywood or media interests.

Link Discuss (Disclaimer: I’m on the organizing committee for the conference — but it really will kick ass)