A Lukewarm Defense of the Digital Millennium Copyright Act

9 Pages Posted: 4 Nov 2002

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

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

Suggested Citation

Kerr, Orin S., A Lukewarm Defense of the Digital Millennium Copyright Act. COPY FIGHTS: THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE, Adam Thierer and Wayne Crews, eds., Cato Institute, 2002, Available at SSRN: https://ssrn.com/abstract=330880 or http://dx.doi.org/10.2139/ssrn.330880

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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