Anti-Circumvention Misuse

Abstract

The anticircumvention provisions of the Digital Millennium Copyright Act penalize both the circumvention of technical protection measures, and supplying the means for such circumvention. These prohibitions are entirely separate from the exclusive rights under copyright, causing some commentators to dub the anti-circumvention right as "paracopyright". Such "paracopyright" effectively grants copyright holders sweeping new ability to impose terms of access on content users: consumers who access content without accepting the content owner's terms would violate the owner's "paracopyright" even if the material accessed is not itself copyrighted or copyrightable. Additionally, where a particular use would be permissible under copyright law, content owners may be able to exclude the use as a condition of access. For example, the content owner might require that users contractually agree not to engage in reverse engineering or fair uses as a condition for access to the material. Content owners may use "paracopyright" to require purchase or use of related products; for example, DVD access controls require that the disc be played on approved hardware, effectively dictating the consumer's purchase of playback equipment. At some point, such leveraging of access control seems certain to overstep the bounds militated by sound policy or intended by Congress. In the past, abuse of intellectual property rights has been curtailed under the doctrine of misuse. Misuse claims first arose in the patent context, where the patent might be leveraged into licensing terms that exceeded the proper scope of the patent grant. More recently, overreaching in copyright licensing has been recognized to constitute a form of misuse. Abuse of copyright in the context of computer software licensing has been the typical setting for a finding of misuse. Recent cases have held that inclusion of a ninety-nine year non-competition provision as a term of a software copyright license, or the tying of unpatented hardware to the license of copyrighted software, constitute misuse of the copyright. This paper argues that because DMCA "paracopyright" is ripe for abuse, limits on overreaching may be imposed by applying the misuse doctrine in this new area. Just as improper leveraging of patent and copyright may be curtailed by application of the misuse doctrine, so improper leveraging of paracopyright should be curtailed by application of misuse. This new application of misuse doctrine may be guided by the standards established in previous applications to patent and copyright law, and may serve a similar function in regulating the excesses invited by the anticircumvention right.