A Lukewarm Defense of the Digital Millennium Copyright Act

Abstract

The DMCA is the law that law professors love to hate. In these brief remarks delivered at a Cato Institute symposium, the author offers a "lukewarm" defense of the DMCA. While the DMCA is not a great law, nor even necessarily a good one, there's a method to the madness of the DMCA. The law reflects an intellectually coherent effort to maintain the enforceability of contract rights on the Internet by interfering with the market for contract-breaching devices. Like laws that prohibit the possession of eavesdropping devices and burglar tools, the DMCA tries to reduce rights-violating conduct by interfering with the market for rights-violating tools. This is an imperfect regulatory strategy: rights-violating tools can always be used in legitimate ways, and the DMCA may not draw the line between rights-violating tools and legitimate tools in the right place. Despite this, the basic structure of the DMCA may eventually prove to be a respectable model for enforcing intellectual property and contract rights online.

Keywords: DMCA, copyright

JEL Classification: K1