Stanford University law professor Lawrence Lessig penned a piece for Foreign Policy in which he predicts that DRM (digital rights management) efforts will spell the end of the public domain:

So, for example, the United States has radically increased the reach of copyright regulation. And through the World Intellectual Property Organization, wealthy countries everywhere are pushing to impose even tighter restrictions on the rest of the world. These legal measures will soon be supplemented by extraordinary technologies that will secure to the owners of culture almost perfect control over how “their property” is used. Any balance between public and private will thus be lost. The private domain will swallow the public domain. And the cultivation of culture and creativity will then be dictated by those who claim to own it.

The theory behind "public domain" is that creative work belongs to no one. Its natural state is to belong to everyone. But the state, recognizing that it benefits everyone if an artist is able to make some money off of his art and thus produce more art, grants the artist a monopoly for so many years. This monopoly is what we call "copyright." Once the monopoly expires, the work enters the public domain, meaning no one has an exclusive license to redistribute the work.

Gradually, media companies have increased the length of the copyright term. The Sonny Bono Copyright Term Extension Act of 1998 now allows a work created today to be copyrighted for 120 years! No one knows the problems with copyright law better than Lessig, who, in addition to writing several books on the issue, has argued copyright law in front of the Supreme Court. In the case Eldred v. Ashcroft, 01-618 (2003), Lessig argued on behalf of his client, Eric Eldred, that extended copyright to 120 years does not comport with the Constitution's requirement that copyrights and patents be granted for "limited Times." The court didn't buy his argument and sided with the government. (Admittedly, Lessig's argument, that Congress didn't have the power to extend copyright to such a long time, was pretty weak. Clearly, the Constitution does give Congress the power to do whatever it wants with copyright. The Court acknowledged that "the CTEA does not violate the 'limited Times' restriction of the Copyright Clause because the CTEA's terms, though longer than the 1976 Act's terms, are still limited, not perpetual, and therefore fit within Congress' discretion." In his book, Free Culture, Lessig admits that he used an argument that didn't make the CTEA matter to the justices. It does pain me to say it, because I don't like the CTEA at all, but the Court made the best decision with regard to the law.)

Anyway, getting back to the public domain. In Foreign Policy, Lessig suggests that anti-piracy efforts will spell the end of the public domain. This is probably true. DRM is an anti-piracy measure, but DRM doesn't know what "fair use" or "public domain" are. Fair use is defined in 17 U.S.C. 107, which states that an author's exclusive right does not extend to "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." To be classified as fair use, a work must be used (1) in one of the ways above, and (2) in a substantially non-commercial way. In evaluating fair use, the intent of the use must be taken into account. Do I want to copy an episode of South Park and redistribute it on the Internet, or do I want to play it for my satire class to show them what "lampoon" is? (Cf. "The Passion of the Jew.") The latter use is fair use, since it is being used for teaching and does not affect the value of the work commercially (i.e. because students have already seen the work in my class, they won't refrain from watching it on TV or purchasing it on DVD); the former is not, as the former affects "the potential market for or value of the copyrighted work" (instead of buying the DVD or watching it on TV, I'll download it from the Internet). DVDs have encryption on them to prevent piracy, and thanks to the DMCA, cracking an anti-piracy protection is a crime. What does this mean? It means that I have to break the law in order to do something allowed by law. The DMCA set up a no-win scenario (or, for Larry, a Kobayashi Maru scenario): I can't exercise my fair use rights to the work because of encryption, but neither can I break the encryption in order to exercise my fair use rights, because that would be a crime.

What do the content providers think of "fair use"? They hate it. They absolutely loathe it because it allows people to use their stuff without paying for it. In an RIAA Powerpoint presentation delivered at an Aug. 12 NARM convention in San Diego, Mitch Bainwol, CEO of the RIAA, refers to fair use as "theology." Theology?! It's in the damn law! It's not a question of believing in fair use or not believing in fair use. It's written down! It's there! You can read it! It exists! You don't need faith to believe in fair use; you need some reading glasses!

Also, consider that works being distributed as eBooks have DRM built into them, even if they're in the public domain! In Free Culture, Lessig demonstrates this using the book Middlemarch, which is in the public domain:

When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable.

DRM on public domain works breaks the law because it continues to grant the author an exclusive license to the work. DRM on copyrighted work can break the law because it doesn't allow for the exercise of fair use. Once I buy my CD of Bette Midler's greatest hits, it's mine. I own it. It's a tangible thing and I own it. But if there's DRM on the CD, then I do not own it! The music publisher still owns it and is generous enough to allow me to play the CD. Assbag.

The only reason that content companies put DRM into their stuff is because they can. Do you think for a minute that they didn't put DRM in VHS tapes because they respected you as a customer? Not on your life, pal. It's because they didn't have the technology to do it back then. The goal of a content company is the same as any other company: profit. They want to force you to keep coming back to them for content, upgrades, service, parts, whatever. DRM tells you, the consumer, in no uncertain terms that you view content at the pleasure of the company that's provided it for you. If they don't want you to do something with the content, then you won't. And you'll like it. And you'll come back for more.

But maybe there's a bright side to this. Maybe companies' Draconian DRM tactics will backfire and consumers, used to doing whatever they want with whatever they bought, will opt not to buy CDs with ridiculous DRM built into them. Or they'll become amateur hackers and figure out ways around the DRM. As Larry Lessig concludes at the end of Free Culture:

My point is not the idiotic one: Just because people violate a law, we should therefore repeal it. Obviously, we could reduce murder statistics dramatically by legalizing murder on Wednesdays and Fridays. But that wouldn't make any sense, since murder is wrong every day of the week. A society is right to ban murder always and everywhere.

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When at least forty-three million citizens download content from the Internet, and when they use tools to combine that content in ways unauthorized by copyright holders, the first question we should be asking is not how best to involve the FBI. The first question should be whether this particular prohibition is really necessary in order to achieve the proper ends that copyright law serves. Is there another way to assure that artists get paid without transforming forty-three million Americans into felons? Does it make sense if there are other ways to assure that artists get paid without transforming America into a nation of felons?

DRM is designed to make information behave like a tangible thing. Mariah Carey's new hit single must be exactly like a refrigerator. The problem is that it's not. And DRM allows content providers to force information to behave like a refrigerator. It gives corporations a government-sanctioned excuse to be lazy, to stop innovating, to force new markets to behave like old ones.

Lessig's concern in Foreign Policy is that the public domain will disappear as the distinction between "public" and "private" becomes blurred to the point where "private" swallows "public" and consumers are forced to pay for everything. Something will have value only if it has a price. I maintain that it doesn't have to be this way. Like a dystopic novel, this is a warning: you can stop this future from happening! When Foo Fighters publishes a CD full of DRM, don't buy it. When Velvet Revolver publishes a CD with DRM, don't buy it. Declare that the market is made of producers and consumers, and if the music industry wants to retain you as a consumer, it had better afford you some respect by letting you do what you want with the stuff you own. And if it won't, then you'll go somewhere where you're being respected and not having business practices shoved down your throat under penalty of law.