A Balanced Argument for Copyright Law Exclusive of the DMCA


Since books, charts, and maps were protected under the first federal copyright law enacted in the U.S. in 1709 copyright owners have sought to protect their assets through legal means. Throughout the nearly three hundred years that these law have been in effect the overall concept of copyright law has been to strike a balance between protecting the rights of authors, artists, and copyright owners and, according to the Constitution, to “promote the Progress of Science and useful Arts.” That balance had largely been maintained until the arrival of digital technology, which, unlike the analog technology that preceded it, could make copies in large quantity, in faster-than-real-time, and with no degradation in quality. The response to these features of digital technology was to create a system of digital rights management and other technological deterrents where content owners could exert control over media usage and then to create and enact the Digital Millennium Copyright Act, which, among other restrictions, criminalizes DRM circumvention and creates safe harbor provisions for limiting OSP liability. It is the goal of this paper to present a balanced argument in support of copyright law exclusive of the DMCA and to demonstrate some of the ways that the DMCA and other attempts to amend copyright law can be viewed as anti-competitive, anti-consumer, and undermining of the doctrine of “fair use.”


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