Abstract
The Digital Millennium Copyright Act (DMCA) threatens free expression and free competition. The DMCA has two primary parts: (1) the anticircumvention provisions and (2) the safe harbors for Internet and online service providers. First, the DMCA not only makes certain technologies illegal, but also reduces competition among technology makers. The anticircumvention provisions criminalize technology that can be used to legally and legitimately access and disseminate speech. In effect, the DMCA has created a new, shadow copyright regime that gives copyright holders the legal power to dramatically curtail fair use. This is a 300-year step backward for copyright law and freedom of the press, and is ultimately ineffective at preventing piracy. Second, the DMCA’s safe harbor provision fails to sufficiently protect free expression and has been routinely abused by copyright holders and other parties. Safe harbor immunizes providers from liability if they comply with certain requirements, particularly a system known as “notice and takedown.” But the notice-and-takedown regime requires modern-day presses—online service providers—to censor speakers. Because the DMCA is so woefully unprotective of speech and restrictive to competition, it must be reconsidered.
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