Exporting DMCA Lockouts

Abstract:     
In her lead paper for a symposium in her honor, Margaret Jane Radin warns that our intellectual property laws are being rewritten in ways that neglect values embedded in neighboring legal subdisciplines, such as contract, competition, and free speech law. The effect has been to aggrandize the rights of intellectual property holders, at the expense of others in society. In my comment, I apply her elegant insight to an oft-neglected realm: our spirited efforts to export our ever-strengthening intellectual property law through bilateral trade agreements. Radin critiques the Digital Millennium Copyright Act's anti-circumvention provisions, which some companies have cleverly sought to deploy to bar competition in the after-market. Companies are seeking to exploit DMCA anti-circumvention to obtain monopolies, with varying success, in unexpected areas such as garage door openers, printer cartridges, and online multiplayer games.

I show how, through bilateral and regional free trade agreements, the United States is exporting the DMCA's controversial and strict anti-circumvention provisions. All of the free trade agreements negotiated by the United States post-DMCA mandate the adoption of anti-circumvention provisions by our partners. A review of each of these agreements demonstrates that they carry the DMCA's cramped vision of permissible circumvention. They thus ignore what Radin describes as the legal milieu of intellectual property, in particular, competition law, foisting upon our trading partners rules that corporations may exploit to gain monopolies in the after-market for their products. This leads to the irony that measures to free trade might lead to a legal framework that facilitates monopolies in the after-market.

Keywords: Free trade agreements, anti-circumvention, Margaret Jane Radin, DMCA, Digital Millennium Copyright Act, competition, monopolies, after-market

Accepted Paper Series