Fiona Li is a J.D. candidate at Osgoode Hall and is taking the Patent Law course.

A non-practicing entity (NPE) is a patent owner that does not manufacture or use the patented invention. NPEs are commonly referred to as patent trolls. More specifically, patent trolls buy patents cheaply from entities not actively seeking to enforce them. The trolls, in turn, make money by aggressively enforcing claims against other companies who may be infringing on the patent despite having no intention of using it themselves.

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In “(Digital) Locks are multipurpose tools, and can be used or abused”, Rusell McOrmond makes the distinction between digital locks on content, such as mechanisms on audio CDs that prevent users from “ripping” songs to external devices, and digital locks on devices, which only allows devices to play certain types of content.  He argues that digital locks can be useful or harmful depending on the use to which they are put, stating that they are not in and of themselves “neither good nor bad.”

I would argue that in discussing the balancing of interests with respect to the effect of digital locks on copyright, manufacturers of devices that access and use copyrighted works and distributors of copyrighted works have become major stakeholders.  The role that manufacturers and distributors play in use of digital locks must be viewed alongside the interests of users and creators to understand the implications of using such locks.

Users

Digital locks restrict users in many ways.  Locks on content take legal uses of works away from consumers, while locks on devices limit the choice of where users can get content from.  Consequently, users are also limited in their selection of content.

Creators

Digital locks can protect and harm creators.  Locks on content protect creators by preventing unauthorized duplication and distribution of their works.  However, as previously mentioned, locks on devices limit the choice of where users can get content from.  Users with a specific device may only be able to acquire compatible content from a certain distributor.  Consequently, the dissemination of a creator’s work can be limited by what a distributor makes available and what content a device can play.

Device Manufacturers and Content Distributors

Digital locks allow device manufacturers and content distributors to manipulate the market to their benefit.  Locks on devices, by providing compatibility with only certain forms of content, force users to make use of only those distributors who carry compatible content.  Together, manufacturers and distributors can create what is effectively a monopoly, leaving users with little to no choice as to where to acquire certain forms of content.

When manufacturers and distributors are included in the rights balancing scheme envisioned by the Copyright Act, it becomes clear that the use of digital locks do not achieve its stated purpose.  Users are the clear losers, as even legal uses of copyrighted material are taken away.  While creators achieve some degree of protection against unauthorized distribution and reproduction, they are at the mercy of content distributors, and to a lesser degree, device manufacturers.  The biggest beneficiaries of from using digital locks are device manufacturers and content distributors.  Under the guise of protecting creators’ right, they have acquired a means to increase their market share in devices and distribution of works.

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