Academic journal article Rutgers Computer & Technology Law Journal

And the Shirt off Your Back: Universal City Studios, DECSS, and the Digital Millennium Copyright Act

Academic journal article Rutgers Computer & Technology Law Journal

And the Shirt off Your Back: Universal City Studios, DECSS, and the Digital Millennium Copyright Act

Article excerpt

I. INTRODUCTION

Although law principally represents the mediation of broad principles and competing interests, its resolution in practice is often muddied and its consequences unforeseen. The law has, of late, been called upon to mediate between the interests of intellectual property and technology, with commerce deeply entwined. The complex and tense relationship of these interests has given rise to one of the dominant legal and social contests of recent times. And copyright has been on the frontline. The implications of digital technology for the production and distribution of information have become clearer, leading to intensified debate and commentary, the ratification of treaties, and the enactment of laws. In the last two years, details and consequences of the legal mediation between copyright and technology have begun to emerge from the courts, prompting calls for a review of recent copyright legislation and a reassessment of intellectual property in the digital age.

During this time, the Internet, a relatively unknown and undervalued technological and commercial realm just a decade ago, has assumed enormous social and economic significance. In particular, the World Wide Web ("Web") has emerged as an unparalleled digital environment, inextricably and problematically linked with intellectual property and commerce. As a result, much discussion of technology centers on the Internet. Commerce has come to rely heavily on the Web, and intellectual property is so closely tied to it that developments in one reverberate within the other.

Those who need convincing of the extent to which the three have become enmeshed ought simply to recall some of the marquee legal battles of the last two years: U.S. v. Microsoft Corp., (2) A & M Records, Inc. v. Napster, Inc., (3) Universal City Studios, Inc. v. Reimerdes, (4) Amazon.com, Inc. v. Barnes and Noble.com, Inc., (5) Ebay, Inc. v. Bidder's Edge, Inc., (6) and New York Times Co. v. Tasini. (7) All of these cases are principally about content: Who controls access to it? What may they do with it? Who may they charge for it? How may they use technology protect it? Those still not convinced might consider such concepts as business method patents, peer-to-peer file sharing, and pay-per-use. Although these terms are not the subject of most casual conversations, they have migrated from technology newsgroups and financial news channels to the front pages of the print media and the top of the evening news. These developments underscore the extent to which the Internet has both magnified and intensified the existing tensions between intellectual property and technology.

This article analyzes the Digital Millennium Copyright Act of 1998 (8) ("DMCA" or "Act"), focusing on its prohibition on the circumvention of technological controls on copyrighted works. The DMCA was envisioned as the legal means for reconciling copyright with the new digital and cyber realities. The very title of the Act suggests the possibility of such reconciliation. There is substantial disagreement, however, as to whether it properly mediates between complex principles and interests, as well as skepticism about the prospects for reconciliation. Because these legal and policy questions are now wending their way through the courts, this article also reviews ongoing litigation under the DMCA, in particular Universal City Studios, Inc. v. Reimerdes ("Universal City"), (9) the first decision to address access and copy controls. The Internet is both the dominant technological reality of our day and an ideal environment for producing and distributing intellectual property. Thus, the DMCA and cases such as Universal City matter greatly for technology, intellectual property, and commerce. This article concludes, then, by considering the implications of current anti-circumvention law for each of these and by raising additional questions about the law, with the modest goal of better understanding what happens when legally sanctioned circumvention technology meets copyright principles. …

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