Technology and the Changing Nature of Copyright Enforcement
Matt Jackson mattj@psu.edu
Assistant Professor of Communications
Penn State University
Presented to TPRC September, 2000

Abstract


This paper examines the trend toward technological enforcement of copyright and its potential impact on free speech. Copyright owners are increasingly turning to regulation of technology rather than behavior as a means of controlling content. An early sign of this trend was Universal and Disney's lawsuit against Sony's Betamax VCR. In that case the copyright owners lost when the Supreme Court limited the liability of technology distributors for contributory infringement. However, that same year Congress passed the Cable Communications Policy Act of 1984, which banned technology designed to facilitate cable piracy. Copyright owners gained more control over technology with passage of the Audio Home Recording Act of 1992 (AHRA) which required the use of anti-copying technology to prevent the serial digital reproduction of sound recordings.
The Digital Millennium Copyright Act of 1998 (DMCA) is the most dramatic attempt to give copyright owners complete technological control over their content. The DMCA essentially bans the development of anti-circumvention tools. In doing so, it significantly limits the reach of the Sony holding. In Universal City Studios v. Reimerdes, one of the first cases applying the new anti-circumvention measures of the DMCA, the district court exemplified this shift from law to technology by refusing to consider any standard copyright defenses.
Laws like AHRA and DMCA signal an attempt by the copyright industries to convert copyright from a legal concept to a technological concept. This trend toward technological protection gives copyright owners extralegal control over their works, allowing them to expand their control beyond the constitutional limitations of the Copyright Act and threatening important free speech interests. The end result could be an Internet designed for the one-way flow of commerce rather than the two-way flow of communication.