The Pros and Cons of Strengthening Intellectual Property Protection: Technological Protection Measures and Section 1201 of the Us Copyright Act

The recent announcement (in late November 2006) of the Copyright Office\u27s triennial rulemaking to identify classes of works exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works\u27 users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers of devices or providers of services seek to leverage into de facto monopolies over utilitarian articles the protection of access controls on computer programs that in turn control the function of these objects, then the courts and the Librarian of Congress through the Copyright Office will need to exercise countervailing vigilance in interpreting the statute. Fortunately, Section 1201 is not so hermetically drafted as to resist all attempts to introduce flexibility; this article suggests some approaches to offset overly literalist statutory construction. Notably, the emergence of fair use as a limiting norm of extra-copyright application, as evidenced in the Trademark Dilution Revision Act of 2006, suggests that judges may yet devise ways of reconciling broader intellectual property rights with principles of free expression. Those who interpret the statute should nonetheless bear in mind the many new business models that Congress foresaw and that digital rights management measures (some of them author-empowering) have in fact enabled, lest insecurity dampen the prospects for these models\u27 development