William & Mary Law Review


In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of "technological protection measures "in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a noble one, but lurking is the danger that it comes at the expense of public access to protected works and future innovation. Despite America's long history of "fair use" protections in copyright law, commentators have warned that consumers now find themselves unable to do many of the same things with copyrighted works that they previously could-anyone who might sell them the technology to access a protected work and enable fair use would find themselves in violation of the DMCA. Worse, early litigation dramatically expanded the definition of what constitutes a "technological protection measure" deserving of the law's respect. As the definition broadened, scholars feared that even modest innovations-ones that would never qualify for a patent under existing law--could wind up receiving perpetual patent-like protection through the backdoor of the DMCA. Despite the experts' dire predictions, however, subsequent common law interpretation of the DMCA has reined in many of its potential dangers. The judiciary's focus has rightly shifted to the need to balance innovators' interests with the equally important goals of public access and enhancing overall social welfare. Nonetheless, coherent and uniform protection of fair use under the DMCA is likely best achieved through congressional action.