Title: The Dangers of the Digital Millennium Copyright Act: Much Ado about Nothing?
Abstract: ABSTRACT In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of technological protection measures in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a noble one, but lurking is the danger that it comes at the expense of public access to protected works and future innovation. Despite America's long history of protections in copyright law, commentators have warned that consumers now find themselves unable to do many of the same things with copyrighted works that they previously could--anyone who might sell them the technology to access a protected work and enable fair use would find themselves in violation of the DMCA. Worse, early litigation dramatically expanded the definition of what constitutes a technological protection measure deserving of the law's respect. As the definition broadened, scholars feared that even modest innovations--ones that would never qualify for a patent under existing law--could wind up receiving perpetual patent-like protection through the backdoor of the DMCA. Despite the experts' dire predictions, however, subsequent common law interpretation of the DMCA has reined in many of its potential dangers. The judiciary's focus has rightly shifted to the need to balance innovators' interests with the equally important goals of public access and enhancing overall social welfare. Nonetheless, coherent and uniform protection of fair use under the DMCA is likely best achieved through congressional action. TABLE OF CONTENTS INTRODUCTION I. THE GOLDEN ROAD TO THE DIGITAL MILLENNIUM COPYRIGHT ACT II. INTERPRETING THE DMCA A. The DMCA's Key Provision: An Anticircumvention Rule B. The Judiciary's Treatment of Fair Use, Liability, and Emerging Technologies Prior to the DMCA C. The Post-DMCA Landscape: The Death of Sony, the Failure of Constitutional Challenges, and the Dangerously Expanding Definition of TPMs 1. The DMCA's Anticircumvention Rule Meets Sony and the Fair Use Doctrine 2. The DMCA Meets (and Defeats) Constitutional Challenges 3. The Scope of the DMCA Today: How Broad is a TPM? III. PROPOSED LEGISLATION ATTEMPTING TO REIN IN THE DANGERS OF THE DMCA A. Protecting the Fair Use Rights of Consumers and the Manufacturers Who Make Possible the Exercise of Consumers' Fair Use Rights 1. The Digital Media Consumers' Rights Act 2. The BALANCE Act of 2003 B. Clarifying Consumers' Fair Use Rights in the Digital World 1. The FAIR USE Act of 2007 2. The Consumer Technology Bill of Rights C. Mandatory Disclosure of TPMs: The Digital Consumer Right to Know Act of 2003 IV. JUDICIAL RE-INTERPRETATION OF THE DMCA A. Narrowing the Scope of the DMCA: Neither Consumers nor Manufacturers Violate the DMCA if the Challenged Circumvention Does Not Threaten Rights Protected Under the Copyright Act B. Narrowing the Scope of TPMs: Effective Restriction of All Access to the Underlying Copyrighted Work Predicates DMCA Protection C. Narrowing the Scope of Circumvention: Mere Unauthorized Access Does Not Establish Circumvention of a TPM V. REINING IN THE DANGERS OF THE DMCA: MUCH ADO ABOUT NOTHING? A. Balancing the Societal Benefits and Costs of Fair Use B. …
Publication Year: 2008
Publication Date: 2008-11-01
Language: en
Type: article
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Cited By Count: 1
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