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The Death of Copyright: Digital Technology, Private Copying, and the DMCA

GLYNN S. LUNNEY, JR. Jr. Tulane University - School of Law

Abstract:

    The advent of digital technology has increasingly stressed copyright's ability to protect adequately creative works. By widely dispersing the ability to make near-perfect copies, digital technology renders copyright's traditional approach of controlling unauthorized copying by direct legal action against the individual copier increasingly anachronistic. Fearing copyright's inability to cope with the resulting risk of widespread private copying, copyright producers requested and Congress enacted the Digital Millennium Copyright Act ("DMCA"). The DMCA prohibits almost entirely the use and distribution of decryption technology that would defeat encryption-based controls placed on digital works, and thereby enables copyright producers to rely on encryption to protect their digital works. In doing so, Congress has re-created a protection scheme nearly identical to the one that the Stationers' Company of London used to maintain its printing monopoly in England more than three hundred years ago. Both protection schemes rely on legal prohibitions that limit access to the technology necessary to reproduce protected works. Yet, given the threat digital technology poses, Congress may have had no choice. With anything less than almost complete prohibition, decryption technology would have inevitably slipped into the marketplace more generally and restored the potential for widespread private copying. Nevertheless, this article identifies two considerations that suggest that Congress has gone too far in enacting the DMCA. First, private copying is unlikely to reduce the revenue and incentives for creative works at the margins and is therefore not a threat to "the progress of Science" Congress is constitutionally constrained to serve. Second, private copying represents a critical form of democratic self-governance - civil disobedience - that allows consumers to determine the proper level of protection directly and thereby avoids the agency-cost flaws of determining copyright's proper scope through our elected representatives. Given these two considerations, the DMCA's prohibitions on the use and distribution of decryption technology may prove not merely unwise, but constitutionally infirm.
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