The words of the United States Constitution are eloquent, “That Congress shall have power…To promote the progress of science and the useful arts…”   Copyright protection was the cornerstone of an educated and enlightened society, a necessary component to democratic self-governance.   The mechanism, copyright, was designed to encourage authors and other creators to produce by protecting their works from monopolistic market practices such as those of the Stationer’s Company, a bookseller’s guild.   Under the auspices of the Crown, this guild controlled England’s presses for more than 150 years when Parliament ended this practice in 1692. This control provided income to the Crown and was an effective way to censor works.   “…by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries.”   For most of its 225 year history, copyright law had only a handful of significant changes.   This pattern has been altered dramatically thanks to the threats posed by the Internet.   Perhaps the most dramatic changes took place in 1998 when the U.S. Congress codified both the Sonny Bono Copyright Extension and the Digital Millennium Copyright Act (DMCA).   This paper will focus on the latter of these two controversial pieces of legislation, which has much less to do with copyright than is apparent on the surface.

            The DMCA essentially forbids circumventing technological measures that protect copyrighted material.   It also prohibits making or "trafficking in" anti-circumvention devices.   Some see this law as a necessary protection for fragile digital content, while others regard it as a threat to the future of free speech rights.    Many vocal critics have expressed concerns that this new law stifles creativity and restricts the kinds of technology that might otherwise be developed.    In addition, the DMCA seems to provide greater opportunities for censorship.   When a researcher tried to conduct research on filtering software, he was told that the digital information was protected by the DMCA and could not be "circumvented" by his efforts (Electronic Frontier Foundation, 2003). More alarming is the application of the DMCA's anti-trafficking provision in order to suppress links to web sites with anti-circumvention software.   This appears to impose a substantial burden of free speech rights on the Internet (Universal City Studios v. Corley 2001).

The content industries and other owners of copyrights have a very different perspective.   They argue that the DMCA is a necessary measure that protects copyright holders against a new and unparalleled ability to create and easily distribute illegal copies.   These copies, which were imperfect in the past, are now not only perfect but easily distributed at a negligible cost thanks to the Internet.  Digital works are exceptionally malleable and their unauthorized use in new or derivative works is a concern for copyright holders and to the creators themselves who are interested in protecting the integrity of their work and receiving the acknowledgement to which they are entitled.   According to Rajan (2002), “It is apparent that digital technologies make it difficult for creative authors to control the treatment of their work and the conditions of its distribution."   As a result,   she concludes that "the preservation, dissemination and appropriate treatment of creative works now depend as much on the knowledge and goodwill of the public as on authors’ personal initiative” (Rajan, 2002).   But content owners have not be willing to rely on such goodwill and continue to press for intensified legal restraints and stricter enforcement of laws such as the DMCA.

            Our purpose in this modest paper is to reassess the DMCA as we rapidly approach the tenth anniversary of its passage into law.   Our fundamental question is simple enough:   on balance, is the DMCA prudent policy?   If not, should it be revoked or revised in some way?   As we have intimated, the DMCA is one of the most maligned laws to be passed in recent years, but is this reputation deserved?    There are valid criticisms about the DMCA but many critics fail to appreciate its purpose:   facilitating control of the Internet through "private-ordering" or code-based regulation.   The DMCA simply helps copyright holders enforce copyright protection.   Some may argue that the DMCA helps enforce a flawed system and that's a fair claim, but not one we can address in this paper.   The DMCA itself is really about technology, not copyright law.  As Dratler (2002) clearly states, “Section 1201 [of the DMCA] is not part of copyright law and was never intended to be so. . . .Its focus is entirely on access to copyrighted works, [and] copyright law has never, and does not now, prohibit unauthorized access to copyright works.”   Ginsburg writing in 2003 has a very different view, “the access right is an integral part of copyright, and therefore should be subject to the exceptions and limitations analogous to those that constrain ‘copy’-right.   Just as a 21 st century copyright regime that did not regulate access would be unrealistic and incomplete, so a regime that limits all availability to works to the copyright owner’s terms would undermine the ‘progress of Science’ that the author’s ‘exclusive Right’ is intended to ‘promote’.”

Our conclusions will be that the DMCA certainly needs some reform and revision.   For example, there needs to be some precise language about access that falls under the fair use exception (Samuleson 1999).   Also, it would be advisable to specify precise conditions under which linking to anti-circumvention technologies is a violation.   At the same time, the DMCA may serve a purpose.   If we grant the premise that software or code-based regulation is here to stay, the DMCA serves an important role.   It encourages the use of access control technologies or DRM's but those DRM's need not be particularly potent to be protected by the DMCA.   It seems safe to assume that without the DMCA there would most likely be hyper-strong DMR systems to combat piracy, and those DMR systems, which lock up content as tightly as possible, could well diminish social welfare.   But thanks to the DMCA, the incentive to build such systems is reduced (Wagner 2005).  

References

Burk, D. (2003). “Anti-Circumvention Misuse: How I learned to stop worrying and Love the DMCA,” Summer IEEE Technology and Society Magazine.  

Dratler, J. (2005). Cyberlaw:   Intellectual Property in the Digital Millennium.

Electronic Frontier Foundation (2003).   "Unintended Consequences:   Four Years Under the DMCA"; available at www.eff.org.

Gillespie, T. ( 2004).   “Copyright and Commerce:   The DMCA, Trusted Systems, and the Stabilization of Distribution,” 20 The Information Society.

Ginsburg, J. (2001).   “Copyright and Control over New Technologies of Dissemination,” 101 Columbia Law Review 1613.

Ginsburg, J. (2003) "From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law,” 50 Journal of the Copyright Society of the USA.

Hurwitz, D.   (2006). “A Proposal in Hindsight:   Restoring Copyright’s Delicate Balance by Reworking 17 U.S.C. § 1201” 13 UCLA Entertainment Law Review 263.

Loren, L. (2002).   “Technological Protections n Copyright Law:   Is More Legal Protection Needed?   6 International Review of Law Computers & Technology 2.

Rajan, M.   (2002). “Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture,” 6 International Review of Law Computers & Technology 2.

Rice, D. (2002) “Copyright as Talisman: Expanding ‘Property’ in Digital Work,” 6 International Review of Law Computers & Technology 2.

Samuelson, P. (1999), "Intellectual Property and the Digital Economy:   Why the Anti-circumvention Regulations Need to be Revised," 14 Berkeley Tech. Law Journal 519.

Wagner, P. (2005) "Reconsidering the DMCA."   6 Houston Law Review 22.

Universal City Studios v. Corley 273 F. 3d 429 (2d Cir 2001).

Universal City Studios v. Reimerdes 111 F. Supp. 2d 294 (US. Dist. 2001)