Paradigm Shifts and Access Controls: An Economic Analysis of the Anticircumvention Provisions of the Digital Millennium Copyright Act

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer’s ‘fair use” of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material that would otherwise be legal as fair use. Additionally, access controls can be used to lock up uncopyrighted public domain material. The Note thus argues that the DMCA should be reformed so that access controls are not applied to noninfringing uses. Part I of this Note discusses the origins of the DMCA and its anticircumvention provisions. Part I discusses how United States copyright doctrine has evolved away from a balancing approach and toward one where copyrights are treated more like private property. Part III discusses the economic arguments in favor of access control provisions and why they are not completely effective in achieving optimal levels of production and utilization of copyrighted works. Finally, Part IV suggests how the DMCA should be modified.