Reconsidering the DMCA

Abstract:     
This brief essay extends the analysis in On Software Regulation, 78 S. Cal. L. Rev. 457 (2005), to the anticircumvention provisions of the Digital Millennium Copyright Act. I argue that the DMCA should be reconceptualized as an effort in Congress to alter the regulatory balance between law and software rather than an effort to expand the scope of copyright protection. I suggest that this regulatory strategy, which I call legal preemption, is likely to be an emerging feature of legislation in the years ahead.

Keywords: intellectual property, copyright, public values, fair use, DMCA, anticircumvention, software

Accepted Paper Series