A Momentary Lapse of Reason: Digital Copyright, the Dmca and a Dose of Common Sense

64 Pages Posted: 21 Feb 2005

See all articles by Zohar Efroni

Zohar Efroni

Stanford's Center for Internet and Society


The debate concerning United States anticircumvention law spurred by the enactment of the Digital Millennium Copyright Act [DMCA] in 1988 reached a high peak with the recent decisions of the Federal and the Sixth Circuits in Chamberlain and Lexmark. These decisions rejected DMCA claims where the anti-trafficking prohibition was invoked in disputes between manufacturers of consumer electronic products competing in the aftermarket for interoperable devices. Both decisions introduce interpretive theories that shed new light on the way the DMCA has been understood thus far and embody implications that call for fundamental changes in the US anticircumvention paradigm. This Article describes the rulings and attempts to extract their normative novelties, especially regarding the relationship between access control regulation and traditional copyright law and limitations. Further, it offers a critical analysis of these decisions and reflects on future application of the anticircumvention scheme in the digital copyright environment. It aims at stirring the discussion surrounding the anticircumvention legislation, in particular in light of the recent Supreme Court's refusal to review the Chamberlain ruling.

Keywords: Digital Millennium Copyright Act , Chamberlain, Lexmark, anticircumvention, Copyright, access right, access control

JEL Classification: K11

Suggested Citation

Efroni, Zohar, A Momentary Lapse of Reason: Digital Copyright, the Dmca and a Dose of Common Sense. Available at SSRN: https://ssrn.com/abstract=669862

Zohar Efroni (Contact Author)

Stanford's Center for Internet and Society ( email )

Stanford, CA 94305
United States

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