The DMCA: Providing Locks for
The anti-circumvention provision of the Digital Millennium Copyright Act seeks to protect copyrighted works such as software, books, movies, and music by providing that “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work.”
One of the puzzling aspects of the way the debate over the anticircumvention provisions of the DMCA has played out is that both proponents and opponents of the DMCA have portrayed the issue as a battle of good versus evil. The DMCA is either considered to be evil and vilified—or it is put on a pedestal as a wonderful kind of panacea.
The vilification of the Act is wide-ranging, tugging on every legal and emotional heartstring. Opponents cast about with ease, alternatively, and sometimes in the same breath, characterizing the DMCA with statements such as “it's unconstitutional”; “it will limit free speech”; “it will limit my freedom”; “it will criminalize basic research, the lifeblood of the software industry”; “it will put scholars at risk of going to jail”; “it will be the end of creativity”; “it will be the death of our educational system”;—and so on.
But this really is not a battle of good versus evil. That the fight over the DMCA has been framed that way reflects the fact that the dialogue is taking place at mismatched levels. Participants are talking past one another.
At one level we have a really interesting, complicated, academic, and extremely difficult puzzle about what is good law and what is good policy as we move into an era of dramatically different ways of using and distributing information. The other level to consider