What Federal Gun Control Can Teach Us About the Dmca's Anti-Trafficking Provisions

Abstract

This article studies the so-called "anti-trafficking provisions" of the Digital Millennium Copyright Act ("DMCA") by drawing insight from federal gun control. Among other things, the anti-trafficking provisions criminalize the distribution of technology that circumvents the encryption schemes sometimes used to protect digital files. This prohibition even applies to the sale of circumvention technology for lawful purposes. Not suprisingly, this result has generated controversy. Consumer advocates and civil libertarians have argued that it is wrong to criminalize the sale of technology that has lawful use, particularly when that criminalization makes it difficult - if not impossible - for the public to make legal, noninfringing use of copyrighted works.

Controversy exists because Congress has refused to amend the DMCA to preserve lawful consumer use of copyrighted works. The argument for this refusal is simple: Digital technology, particularly the Internet, unacceptably threatens the security of copyright. Strong measures must therefore be taken to prevent such misuse of digital technology, even if it means curtailing rights of access and use that the public is supposed to enjoy.

The article questions whether the above described sacrifice of public rights is really necessary. This criticism starts with the observation that both federal gun control and the DMCA's anti-trafficking provisions respond to the misuse of technology. People misuse guns to commit crimes, and people misuse circumvention technology to commit copyright infringement. In both cases, Congress has used criminal law to keep technology away from those who might misuse it. In the case of circumvention technology, Congress has banned such technology at the expense of public of access to such technology for lawful purposes. In the case of guns, Congress has not imposed a ban precisely because it was concerned about preserving access to firearms for lawful purposes.

The article uses this observation to challenge the view that public availability of circumvention technology will destroy copyright. The article studies the regulatory methods used in gun control, and adapts them to propose a general approach for controlling the misuse of circumvention technology while preserving access to such technology for lawful purposes. The article contends that this proposal will provide adequate security to copyright holders, preserve public rights of fair use and access to copyrighted works, and encourage the responsible use of digital encryption schemes.

Keywords: copyright, digital rights management, digital millennium copyright act, fair use, public domain, circumvention, circumvention technology, internet, law, consumers