Contract or License? (DMCA)

Wendy Seltzer wendy at
Sat Sep 15 00:55:09 UTC 2001

At 08:31 PM 09/14/2001 -0400, Rod Dixon, J.D., LL.M. wrote:
>Hmm... You were on much better footing before when you appeared to stay
>close to traditional copyright. Your statements below about 1201 of the DMCA
>are not accurate. I doubt that the word "content control" appears anywhere
>in 1201; that section focuses on access controls and the circumvention of
>access controls, which have nothing to do with section 106 rights.

As it's been interpreted by Judge Kaplan at least, 1201 does act as the 
"use control" Karsten describes.  If "authorized" access devices (licensed 
DVD players) permit only certain limited uses (play on a straight 
television or Windows machine, without skipping commercial previews) and 
it's a circumvention violation to make or use an alternate means of access, 
then 1201 effectively prohibits alternate uses of copyrighted 
content.  Even if those uses would be fair or not even covered by copyright 
pre-DMCA.  I'd agree 1201 is not "copyright" per se, but if it's justified 
under the commerce power instead, that's scant help to the people who want 
to make alternate uses -- the statute is still a use control masquerading 
as part of Title 17 (Copyright).

>If your point is that blocking access to a work effectively means all uses
>of the work are subsumed under copyright, I cannot agree with that point. As
>you will recall, copyright law must be anchored by its constitutional basis
>set forth at Art. I sec. 8, cl. 8.

Unfortunately, we've seen that the DMCA's drafters didn't feel constrained 
by that purpose, nor the D.C. Circuit in considering the challenge to 
copyright term extension.

I hope that these persistent use controls are stopped in their tracks, but 
they have plenty of proponents in Congress and the courts.

Wendy Seltzer -- wendy at
Fellow, Berkman Center for Internet & Society at Harvard Law School

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