A Lukewarm Defense of the Digital
Millennium Copyright Act
Orin S. Kerr
When I was invited to come to the Cato Institute to speak in the F. A. Hayek Auditorium on the Digital Millennium Copyright Act, my thoughts naturally turned to this question: What would Friedrich Hayek think of the DMCA? How would the Nobel Prize-winning Austrian economist, author of The Road to Serfdom, The Constitution of Liberty, and many other works, react to the DMCA?
I concluded that Hayek would have appreciated the underpinnings of the DMCA. Although Hayek was fairly skeptical of intellectual property as a whole, 1 I believe the DMCA fits within his vision of the proper role of government. This is interesting because it suggests that a Cato Institute audience should find the DMCA pretty appealing. The DMCA may be the law that law professors love to hate, 2 but the Cato crowd should find a lot to like in it.
In my remarks, I will use this insight to present what I call a “lukewarm” defense of the DMCA. 3 It's a lukewarm defense because I will not argue that the DMCA is a great law, or even necessarily a good law. Rather, my argument is that Congress was not acting entirely irrationally when it enacted the DMCA. There's a method to the madness here, and that method is rooted in a Hayekian vision of private ordering and free contract that the DMCA is designed to promote. Only time will tell whether this vision makes sense in the Internet age. Twenty years from now we may look back on the DMCA and conclude that it was a dismal failure. But on the other hand, we may not. We may look back and view the DMCA as a respectable model for how to enforce intellectual property rights and contractual rights in cyberspace. I would like to explain how that might turn out to be the case.
Let's start with Hayek. Friedrich Hayek is known for his appreciation of the merits of private ordering. The basic idea is a simple one. The government cannot possibly know and respond to the