Will Merging Access Controls and Rights Controls Undermine the Structure of Anticircumvention Law?
49 Pages Posted: 16 Feb 2004
This article looks at the legal regime designed to protect copyright owners' technological control measures against circumvention efforts. The article considers how Chapter 12 of current copyright law, enacted as part of the Digital Millennium Copyright Act, treats different controls - access controls and rights controls - differently, offering more protection for access controls. Congress afforded rights controls less protection, the article argues, in order to allow users to make noninfringing uses of copyrighted works even when copyright owners have applied technological protection measures. The disparate levels of protection might offer copyright owners an incentive to prefer access controls over rights controls. More significantly, it may lead copyright owners to adopted "merged" control measures which function as both access and rights controls. If courts treat such merged controls as entitled to the legal protections granted to both access controls and rights controls, they may hinder users from engaging in permitted circumvention of rights controls for noninfringing purposes without facing liability for prohibited circumvention of an access control. Because this would undermine Congress's goal of preserving noninfringing uses of technologically protected works, the article concludes by considering two legislative approaches to preserving noninfringing use in the face of merged controls.
Keywords: copyright , DRM, technological controls, rights management, DMCA, circumvention, trusted systems
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