Throughout the history of the United States, copyright law, the fair use doctrine, and other non-infringement doctrines have limited copyright holders' right to prevent certain uses of their works. Nowadays, however, copyright holders can prevent users from engaging in non-infringing use of works on digital media by incorporating technological protection measures, such as an encryption code that prevents a CD from being played on a personal computer. Furthermore, the Digital Millennium Copyright Act prohibits circumvention of a technological protection measure that "effectively controls access" to a copyrighted work. This combination of new technological and legal tools gives copyright holders the de facto ability to prevent fair use and other non-infringing uses if such uses would require circumvention of an access-control measure.
To combat the negative effects of this new techno-legal paradigm, sellers of digital media products should be required to label their products at the point of purchase, clearly disclosing any technological protection measures incorporated into their products and the uses that such measures prevent or limit. Such a regulatory system would discourage industrial copyright holders from abusing their newly realized power to prevent non-infringing use of their works, increase the efficiency of the digital media marketplace and its responsiveness to consumer needs, and protect reasonably developed consumer expectations regarding non-infringing uses of purchased digital media products.
Michael P. Matesky II,
The Digital Millennium Copyright Act and Non-Infringing Use: Can Mandatory Labeling of Digital Media Products Keep the Sky from Falling?,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol80/iss1/20