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Abstract

Section 1201(a)(1) of the Copyright Act prohibits the act of "circumvent[ing] a technological measure that effectively controls access to a work," including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of "any technology, product, service, device, component, or part thereof" primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent "a technological measure that effectively protects a right of a copyright owner"--for example, a technological measure intended to prevent reproduction of a copyrighted work. Both the justification and breadth of the anti-circumvention provisions were quickly challenged. The ban against circumvention devices, for example, can prevent many users from making a fair use of protected works. The problem illustrates a more general threat. A legal prohibition against circumventing the protective measures adopted by copyright owners leaves those owners with virtually absolute control over the terms of use. Technological restrictions backed by the force of law, coupled with contractual restraints imposed on users as a condition of granting access, allow owners to avoid the limitations on their control that have defined the traditional balance of copyright law--limitations like first sale, fair use, and the absence of protection for facts and ideas. Few dispute that the law should be alert to insure adequate incentive to create in the face of new technologies for reproduction and dissemination. However, if the fundamental goal of copyright remains the "Progress of Science", as the Supreme Court continues to assure us, leaving copyright owners with complete control over every use of their work is probably not for the best. The courts are not likely to take the lead in preserving an efficient balance between protection and access; poor public policy is not itself unconstitutional. Congress too is unlikely to withdraw or substantially reduce the support it has extended to technological self-help measures through the DMCA. One means of maintaining a reasonable equilibrium between owners and users does remain. The system runs on the users' money. The market for works, if functioning properly, can provide users with the leverage to insure adequate access. If owners wrap their works too tightly, users can decline to buy. However, the power that users can exert through the market depends on the quality of the information they have about the existence and effect of the technological protective measures deployed by owners. Owners should be required to disclose that information as the price for invoking the DMCA's protection against circumvention and circumvention devices. After examining the legal and political background of the anti-circumvention rules, this article analyzes the economics of disclosure and proposes a version of mandatory disclosure that appears consistent with both the objectives of the DMCA and the legitimate expectations of users.

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