The DMCA's Anti-Device Provisions: Impeding the Progress of the Useful Arts


This Article raises two points about the anti-circumvention provisions. First, these provisions seem inconsistent with the culture of intellectual property. In the world of proprietary boundaries and public domains, there is something special about access to protected works and the use of limits to avoid infringement, whether we are talking about fairly using copyrighted works or designing-around patented technology. Indeed, cultural enrichment and technological advancement are achieved by fairly using artistic expression and building upon technical knowledge. The focus of this Article is on the access and use of artistic expression in patent law.

Second, the anti-circumvention provisions of the DMCA, which aim to protect digital expression by erecting technological fences, have both an expressive and a technical component. These provisions are meant to prevent unauthorized access to and usage of expressive content by prohibiting: (1) access per se to works protected by technological measures, and (2) the manufacture and trafficking of devices primarily designed to circumvent technological restrictions. Thus, patent law, as well as copyright law, addressed this issue of circumvention-enabling technology. Circumvention-enabling technology, such as software, comprises patentable subject matter, and, resultantly, raises questions about the effect of the anti-circumvention provisions on patent law's constitutional mission to promote the progress of the useful arts. In particular, assuming patent protection is important to the manufacturers of circumvention-enabling technology, one must consider the effect that the anti-device provisions have on the research and development decisions of these manufacturers and, more generally, to patent law's delicate incentive dynamic. Although the answer to this dilemma is beyond the scope of this Article, this issue is something that scholars should pursue further.


Digital Millennium Copyright Act, Anti-Device Provisions

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Place of Original Publication

Washington University Journal of Law and Policy

Publication Information

8 Washington University Journal of Law and Policy 19 (2002)

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COinS Craig Allen Nard Faculty Bio