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A Lukewarm Defense of the Digital Millennium Copyright Act

A Lukewarm Defense of the Digital Millennium Copyright Act

Kerr, Orin S., "A Lukewarm Defense of the Digital Millennium Copyright Act" . COPY FIGHTS: THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE, Adam Thierer and Wayne Crews, eds., Cato Institute, 2002

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Abstract

    The DMCA is the law that law professors love to hate. In these brief remarks delivered at a Cato Institute symposium, the author offers a "lukewarm" defense of the DMCA. While the DMCA is not a great law, nor even necessarily a good one, there's a method to the madness of the DMCA. The law reflects an intellectually coherent effort to maintain the enforceability of contract rights on the Internet by interfering with the market for contract-breaching devices. Like laws that prohibit the possession of eavesdropping devices and burglar tools, the DMCA tries to reduce rights-violating conduct by interfering with the market for rights-violating tools. This is an imperfect regulatory strategy: rights-violating tools can always be used in legitimate ways, and the DMCA may not draw the line between rights-violating tools and legitimate tools in the right place. Despite this, the basic structure of the DMCA may eventually prove to be a respectable model for enforcing intellectual property and contract rights online.

Facts on copyright

  • First-sale doctrine Copyright law does not restrict anyone from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. It is therefore legal, for example, to resell a copyrighted book or CD. In the United States this is known as the first-sale doctrine, and was established by the courts to clarify the legality of reselling books in second-hand bookstores.
  • Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of a George W. Bush interview from NBC's Meet the Press. Although the fair use provisions may apply in such cases, the risks and the pressure from insurance companies usually prevents the use of materials without permission. In the US in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were constitutionally challenged unsuccessfully in the United States Supreme Court.
  • Many countries recognize certain moral rights of the author of a copyrighted work, following adoption of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (which in turn requires, inter alia, the implementation of the relevant provisions in the Berne Convention). Two key moral rights are the right not to have the work altered or destroyed without consent, and the right to be attributed as the author of the work. The Monty Python comedy troupe famously managed to rely on moral rights in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.

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