The DRM Dilemma: Re-Aligning Rights Under the Digital Millennium Copyright Act


The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred on the side of harm-prevention to the detriment of potentially legitimate uses of circumvention devices. Unlike previous scholarship, this article suggests that the answer to this dilemma is not necessarily to amend the DMCA to bolster legitimate use exceptions to the anti-circumvention provisions. Instead, this article advocates resolving the problem through a new approach that takes socially beneficial uses of circumvention technologies outside the scope of the DMCA altogether. The idea is to create a new administrative complaints mechanism that would support those seeking to make such uses of digitally encrypted copyright works by imposing legal obligations on copyright holders to facilitate those uses. This approach has the added benefit of generating a significant amount of data about emerging social norms relating to the boundaries of the fair use doctrine that could be fed back into legislative and judicial processes as copyright law develops in the future.


Computer Law | Dispute Resolution and Arbitration | Intellectual Property Law | International Law | International Trade Law | Internet Law | Law and Society | Science and Technology Law

Date of this Version

May 2005