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WIPO-style protection of DRM effectively privatizes control over public policy with respect to IP. Intellectual property law and policy is a matter of balancing the rights and interests of various stakeholders. Creators, content aggregators and publishers, entertainment consumers, citizen-speakers, and the public-at-large all have legitimate interests that must be reconciled. The WIPO treaties, by giving legal protection to privately developed “technological measures”, without specifying or bounding the nature of those measures, gives the companies that craft such measures carte blanche to inscribe their own interests exclusively in DRM protections. Whatever the law might have to say with respect to the fair-use of material, or consumers’ rights to personal copies, or exceptions to intellectual property restrictions in a court room or policy debate, these are rendered moot by technological measures that are blithely unaware of such complexity. As technological measures are given the force of law, protected even (as WIPO envisions and United States’ DMCA enacts) from circumvention for legal and legitimate purposes, policy debate about balancing public and stakeholder interests is rendered moot. The technologies enforce what rightsholders program them to enforce, and under the WIPO treaties those technologies are the law.
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