...information content providers who depend heavily on copyright law are growing increasingly wary of advances in digital technology that allow manipulation of their content and potentially diminish the effectiveness of their copyright protection. Technology firms, on the other hand, are looking more and more at developing products which provide low-cost, high quality access to content without restriction. Thus, as technologists work feverishly to find new ways to free up information, content providers are fighting just as hard to constrain access in order to prevent market-killing duplication and distribution of their works. These two codependent yet clashing interest groups recently met on the political battlefield in Washington D.C. in the fight over section 1201 of the Digital Millennium Copyright Act (DMCA), a set of provisions limiting the use of technology to access copyrighted works and prohibiting the development and manufacture of technologies that enable certain kinds of access. The copyright industries emerged victorious from the 1201 battle, inserting strong prohibitions on access and device creation into federal copyright law. The technologists were less successful, managing only to win seven complex and narrow exemptions to the access prohibitions and failing to prevent the passage of strict restrictions on device innovation. The battle over 1201 teaches many useful lessons about the American information society and what our future may look like if content industries continue to dominate the national political domain. It presents a concise picture of who represents major copyright content providers, what the terms of the debate are, and the potential downside for the Silicon Valley if it continues to employ its "Let's ignore Washington" mentality. More importantly, however, the battle over 1201 demonstrates a fundamental shift in the scope and power of American intellectual property laws that control access to information. Restrictions previously based on property-like rights of display, duplication, and distribution have now begun to shift toward behavior-based, criminal law-like restrictions on individual behavior and technological innovation, regardless of whether property rights are violated or not. Such a shift represents a dangerous deviation from the delicate public/private balance that intellectual property laws have thus far attempted to maintain. This paper will focus on this shift from property rationales to behavior rationales as a demonstration of how the public/private balance of copyright is in jeopardy if we continue to allow policies like 1201 to become law without critiquing them through the appropriate analysis. Part II of this paper examines the provisions of 1201, highlighting the key issues that demonstrate its behavior-based rationale. Part III demonstrates why laws that attempt to regulate behavior are more properly rationalized as criminal laws, not property laws. Part IV evaluates the effectiveness of 1201 using a criminal law rationale, looking first at the balance between access restrictions and access allowance, then at restrictions on the creation of access-enabling devices. Part V suggests modifications to 1201 that promote a more consistent and balanced implementation of its behavioral-based goals.
Jason M. Schulz,
Taking a Bite Out of Circumvention: Analyzing 17 U.S.C. 1201 As a Criminal Law,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol6/iss1/1