Intelletual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised

Abstract

The Digital Millennium Copyright Act of 1998 (DMCA) prohibits the circumvention of technological protection measures used by copyright owners to control access to their works. It also bans devices whose primary purpose is to enable circumvention of technical protection systems. The Clinton administration proposed these anti-circumvention rules as implementations of U.S. obligations under the World Intellectual Property Organization Copyright Treaty. However, the DMCA's provisions are significantly broader than the treaty required. They violate the Administration's stated goal of only imposing predictable, minimalist, consistent, and simple regulations on the budding digital economy. Although Congress heeded some concerns of digital economy firms by crafting certain exceptions to authorize legitimate circumvention, those exceptions are overly narrow and shortsighted. They should be supplemented by a more general other legitimate purposes exception. The DMCA's anti-device provisions are, moreover, overbroad and unclear, especially on the question whether it is legal to develop a technology necessary to engage in a privileged act of circumvention (e.g., a fair use). Either Congress or the courts will be forced to constrain the reach of the anti-device rules so as not to undermine Congressional intent to preserve fair uses and so as not to harm competition and innovation in the information technology sector. Finally, though the DMCA provides © 1999 Pamela Samuelson. t Professor of Information Management and of Law, University of California at Berkeley; Co-Director of the Berkeley Center for Law and Technology. This paper is an outgrowth of work initially done for an Emory Law School conference on the law of cyberspace held in February 1996. The draft article produced for that conference entitled Technical Protection for Copyrighted Works discussed a 1995 legislative proposal for regulating the circumvention of technical protection systems. I am deeply indebted to Benjamin Black who was my research assistant during preparation of this draft. He subsequently collaborated with me on a derivative work of that paper. Although that project was never completed, this article builds on the base of that collaboration. I am also grateful for comments on this draft from Hal Abelson, Jonathan Band, Yochai Benkler, Julie Cohen, Gideon Frieder, Joan Feigenbaum, Bob Glushko, Peter Huang, Laurel Jamtgaard, and Kurt Opsahl. HeinOnline -14 Berkeley Tech. L.J. 519 1999 BERKELEY TECHNOLOGY LAW JOURNAL for a study of one class of potentially harmful impacts of the anticircumvention rules, this study needs to be broadened to consider the full impact of this unprecedented legislation.