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Anti-Circumvention Misuse

Authors: Dan L. Burk;

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.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. 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.

Country
United States
Keywords

copyright management, DMCA, Digital Rights Management, TPM, Social and Behavioral Sciences, Intellectual Property, patent misuse, unclean hands, Law and legal studies, DRM, Copyright, Technical Protection Measures, bepress|Social and Behavioral Sciences, SocArXiv|Social and Behavioral Sciences, copyright misuse, fair use, Law, encryption

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    selected citations
    These citations are derived from selected sources.
    This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
    12
    popularity
    This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
    Average
    influence
    This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
    Top 10%
    impulse
    This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
    Average
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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
12
Average
Top 10%
Average
Green
hybrid