Section 1201: A Failed Statute
Jay Dratler, CYBERLAW: INTELLECTUAL PROPERTY LAW IN THE DIGITAL MILLENIUM, Law Journal Press 2006
Posted: 16 Feb 2006
Adopted in 1998 as part of the Digital Millennium Copyright Act, 17 U.S.C. Section 1201 prohibits circumventing technological "locks" on copyrighted works and providing others with means to do so. So far four federal courts of appeals have addressed it. The first case involved the section's central purpose: protecting technologically "locked" works from digital piracy. That case was simple enough to resolve decisively at the trial-court level; only constitutional challenges were appealed. The other three appellate decisions addressed the statute's unintended consequences, namely, its application to producers' attempts to control aftermarkets for printer toner cartridges, garage-door-opener transmitters, and interactive on-line services for PC-based video games. Three-quarters of the appellate decisions have thus addressed the statute's unintended consequences. Moreover, the decisions have produced widely differing theories of what Section 1201 means and how it operates.
Apart from its legendary opacity, Section 1201 has three main flaws: overreaching by copyright owners, technology dependence, and consequent failure to coordinate sensibly with copyright. Subsection (a) addresses technological access controls. It is mindlessly absolute and intended to be so, but nothing in the two WIPO treaties that were an ostensible impetus for adopting Section 1201 requires it to be so. Subsection (b), which addresses technological use controls, has explicit language that permits sensible coordination with copyright, including fair use. Applying the two subsections requires some understanding of computer technologies, and the resulting focus on technological detail has distracted courts' attention from important business, social, and economic consequences. Only one lone district court appears to have parsed the two subsections correctly; all other courts interpreting Section 1201 have virtually ignored subsection (b), its distinction from subsection (a), and its textual basis for coordination with copyright. Courts might help restore balance by construing subsection (a) narrowly and subsection (b) broadly, or by using the developing federal common law of secondary liability for copyright infringement to make an "end run" around Section 1201 entirely. Repeal, however, might be a quicker and cleaner solution, for the law of copyright and secondary liability is fully capable of handling the legitimate issues that Section 1201 purports to address with far less cognitive dissonance vis-a-vis copyright.
Keywords: copyright, secondary liability, digital millennium, fair use, Section 1201, circumvention, anticircumvention, trafficking, technological measure, WIPO Treaty, access control, use control, failed statute
JEL Classification: K29, K49, L82, O33, O34, O38
Suggested Citation: Suggested Citation