A Technological Theory of the Arms Race

54 Pages Posted: 20 May 2012

See all articles by Lee Kovarsky

Lee Kovarsky

University of Texas School of Law

Date Written: 2006

Abstract

Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on the particular audience profile consuming the relevant asset. Authors can most cost-effectively manage access through a mixture of these two tactics. Given the attributes of the parties competing over use of and access to expressive assets - authors and consumers - one should expect to observe sustained racing behavior. Such racing constitutes an undesirable exercise in inefficient wealth-redistribution, eroding the benefits of authors’ traditional ability to choose the lowest-cost, most effective mix of copyright enforcement and self-help. Although the proposition that copyright protection substitutes for self-help is not a new one, the precise ways in which it does so - as well as the inefficiencies associated with arms races - remains dramatically undertheorized. Legal rules should seek to minimize wasteful investment in protection and circumvention measures, but citing the Digital Millennium Copyright Act (DMCA) as the first institutional attempt to do so is misleading. For some time, courts and legislatures have addressed racing behavior over a variety of intangible assets - copyrightable expression, patented inventions, and unprotected information. This sample of institutional responses reveals an identifiable pattern of controlling technological arms races, one to which the DMCA largely conforms.

Keywords: technology, arms race, intellectual property, patent, copyright, trade secret, public choice, telecommunications, DMCA, law and economics

Suggested Citation

Kovarsky, Lee, A Technological Theory of the Arms Race (2006). Indiana Law Journal, Vol. 81, No. 917, 2006, Available at SSRN: https://ssrn.com/abstract=2061472

Lee Kovarsky (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

HOME PAGE: http://https://law.utexas.edu/faculty/lee-kovarsky/

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