The following passage is from the introduction to my forthcoming paper on the DMCA. I thought it was particuarly relevant to the discussion below about legal versus non-legal barriers:
As Robert Frost famously noted, good fences make good neighbors. Fences demarcate property lines, enhance privacy, and prevent unauthorized entry. No one would dispute that fences are vital to protecting private property rights.
Yet Congress would be rightly ridiculed if it made it a crime to hop over a fence. Sometimes, hopping a fence is unobjectionable–when you lose a baseball on your neighbor’s property, see your stolen bicycle in someone’s yard, or know that a fenced lot has been abandoned, for example. More importantly, such a law would be completely unnecessary, because the common law of trespass already protects property owners against intrusions on their rights. Because it was developed over centuries by judges considering real-world controversies, the law of trespass is flexible, sensible, and predictable, ensuring that individuals can enjoy their property without unduly impeding the people who might have legitimate reasons to cross their property lines.
Digital rights management (DRM) technologies are the fences of the intellectual property world. They control access to digital media to discourage copyright infringement. For example, when a customer purchases a song over the Internet using Apple’s iTunes Music Store, Apple’s DRM system enforces rules about how the song may be copied. The system permits the customer to copy the song to his iPod, share it with others on his local network, or burn a single copy onto a CD, but it does not permit him to upload it to a peer-to-peer file-sharing network, transfer it to a Sony Walkman, or burn a dozen copies of the song to CDs.
In 1998, Congress gave DRM schemes explicit statutory protections when it passed the Digital Millennium Copyright Act. The DMCA not only made it a crime to “circumvent” DRM technologies–to hop intellectual property’s fences–but it also prohibited creating or distributing “circumvention devices.” It is illegal under federal law to build digital stepladders.
This section of the DMCA was every bit as unnecessary as a federal ban on fence-jumping would be. The courts had already successfully addressed several high-tech challenges for copyright law. A body of law analogous to trespass was providing robust, sensible, and flexible protection for intellectual property rights.
In passing the DMCA, Congress short-circuited that evolutionary process. It threw out the accumulated wisdom of legal precedent and replaced it with a rigid and sweeping anti-circumvention rule.
The relevant issue here isn’t whether “technological barriers” are a good idea–they very well might be. The issue is whether it’s a good idea to enact a statutory ban on all tinkering with such barriers. I think the answer is no, because not all tinkering is harmful. But unfortunately, Congres preembted the common law process that might have otherwise generated more nuanced and flexible rules. Instead we get absurd results such as iTunes software that doesn’t allow me to transfer legally purchased DVDs to a Video iPod.
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