This Article deals with the Digital Millennium Copyright Act's anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under Section 1201, and attributes the courts' indiscriminate protection of all Digital Rights Management (DRM) measures to the law's incoherent formulation. The Article proposes a pair of filters that would enable courts to distinguish between those DRM measures that qualify for protection under Section 1201, and those that do not. The filters are shown to align with legislative intent and copyright precedent, as well as the approaches recently adopted by the Fifth Circuit, in MGE v. GE, and the Librarian of Congress, in granting the ipad "jailbreaking" exemption. The Article contends that articulating a coherent standard for legitimate circumvention would serve rightsholders by clarifying the scope of their protections, as well as prospective inventive competitors and generative consumers.
TABLE OF CONTENTS
I. ADEQUATE PROTECTION
A. Inventing, then Sharing, the Web
B. Jefferson and the White Paper
C. Brokering the DMCA
D. The Anti-Circumvention Provision
E. Defining DRM
II. DMCA JURISPRUDENCE
A. Sony, Innovation & Vigorous Commerce
B. Early DMCA Jurisprudence
C. Middle Period. Foreseeing Monopolies
D Later Jurisprudence: Licenses Reign Supreme
III. LICENSING GENERATIVITY
A. The Court's Historical Approach to IP Licensing
B. ipad DRM
1. iPad Licensing
2. iPad Generativity
C. Accommodating the Generative Consumer
1. Recognizing Generativity
2. Blips in the Night?
After Adam ate from the tree of the knowledge of good and evil, God placed the world's first protection measures around it: cherubim and a "flaming sword which turned every way." (1) God waited until the horse was out of the barn, but Apple took corresponding measures preemptively when it set up the App Store, attributing the rapid creation of hundreds of thousands of applications by third-party developers to the strict controls it cultivates as a part of its "ecosystem." (2) Others use less wholesome metaphors: just two years after the App Store's inception, a dramatic "jailbreak" was staged by none other than the Librarian of Congress (LOG). (3)
What provoked this exigency measure? This Article traces the provocation to the Digital Millennium Copyright Act's (DMCA) anti-circumvention provision, Section 1201. (4) The DMCA was intended to enable copyright law to adapt to the Internet environment, maintaining a balance between creators and users. (5) Intended to protect only meritorious technical protection measures (TPMs), Section 1201's incoherent design has, over the past decade, led to absolute protection for digital locks such as the iPad's.
The Copyright Clause is the only Constitutional provision that addresses Congress's powers regarding copyrights through stipulations, (6) and it likely stems from the Framers' skepticism of monopolies. (7) Yet courts interpreting Section 1201 have failed to reconcile established copyright limitations with technological development under the DMCA. Over the past five years, TPMs been paired with expansive licensing regimes, thwarting legislative intent and traditional copyright principles.
Under the DMCA regime, digital advances have become a double-edged sword: though they have the potential to spur new forms of creating, modifying, and sharing works, their deployment with or as TPMs can obstruct interoperability and legitimate privileged uses. Courts that permit contractual notices to function as restrictive licenses sanction an "fiber" (8) or "mutant" (9) copyright ethos.
This phenomenon impedes the emergence of what I call the "generative consumer," whose non-copyright-infringing digital production should be encouraged, not hindered. …