For much of the last decade, copyright "wars" have been fought with increasing bitterness. Sometimes this has taken place in the courts (e.g., the Eldred case before the Supreme Court, the Napster case, and the Diamond Multimedia case about selling MP3 players), sometimes in legislatures (e.g., the Digital Millennium Copyright Act, the Hollings bill (S. 2048) that would require all digital media players to install standard technical measures to protect digital content), and sometimes in agencies (e.g., the broadcast flag rulemaking under consideration at the Federal Communications Commission and Justice Department initiatives to prosecute file-sharers).

The copyright wars have now come to the XML community in the form of standards under consideration concerning rights expression languages (REL) to support digital rights management (DRM) technologies. As Stanford Professor Larry Lessig so presciently observed, computer program code often performs governance functions. Writing code to permit one activity but not another, in essence, makes the permitted activity "lawful" under the system and the other action "unlawful." DRM technologies implementing REL are illustrative of "code as code." Content owners and developers of DRM technologies like to think of DRM as facilitating the rights of copyright owners to control their content. What they typically ignore is that the law of copyright gives rights to users as well as to copyright owners. Rather than designing systems to enable negotiations about competing rights claims or to enable fair use rights, developers too often focus on one side of the "rights" equation: the content owners' side.

Perhaps languages that facilitate permissions content owners wish to grant should be called "permission languages" instead of REL. It may be more challenging to develop a balanced REL than an imbalanced one, but fortunately several organizations have shown themselves willing and able to submit requirements to develop a true REL. If a language is to be fairly described as a general purpose rights expression language and is to be vetted by OASIS or a similar organization as a standard, it should be a true REL. Members of OASIS within the XML community will have an opportunity in coming months to consider whether to approve a standard for an XML REL. This talk will show the connection between the debate over the OASIS REL standards effort and the many policy concerns underlying in the wider copyright wars.