Rethinking Anticircumvention's Interoperability Policy

Abstract:     
Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA") represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective.

One approach to counteracting the DMCA's restrictions on interoperability is to rely on antitrust scrutiny and the resulting mandatory disclosure of technical information. But both doctrinal and policy considerations suggest that antitrust offers a less than ideal means of lessening the DMCA's impact on interoperability. Rather than relying on antitrust, this Article proposes a solution that addresses the restriction of interoperability at its source. This approach broadens the DMCA's existing interoperability exemption to create an environment more hospitable to interoperable technologies. To preserve the protections the DMCA offers copyright holders, this expanded exemption would disaggregate control over interoperable software and devices from the control over access and copying that Congress intended the DMCA to enable.

Keywords: interoperability, DRM, DMCA, anticircumvention

Accepted Paper Series