"Strong Wills, Weak Locks: Consumer Expectations and the DMCA Anticircumvention Regime"
Krzysztof Bebenek · bepress Legal Repository · 2011
The anticircumvention regime of the Digital Millennium Copyright Act, which operates in the background of our everyday interactions with the technologies used to distribute copyrighted works, relies on a combination of digital rights management systems that restrict certain interactions and capabilities, and legal rules that impose liability for defeating these protections. Because the DMCA’s anticircumvention regime relies on a combination of complex law and porous technology that fails to reflect consumer expectations, there is good reason to believe that it is ineffectual. Rather than actively complying with the DMCA’s abstruse provisions or passively accepting the narrow range of interactions that DRM technologies typically allow, many copyright consumers seem to have a different lodestar—their own beliefs and intuitions about the kinds of interactions with copyrighted works that are desirable, appropriate, or natural. Following these intuitions, users do with works as they see fit. They may copy for personal use, to remix and criticize, to share with others, or to avoid paying a price. Should a DRM barrier stand in their way, they may very well circumvent it or they may not, but neither law nor technology seems to bear heavily on the choice. This paper argues that such intuitions or norms may play a greater role than many suspect in governing copyright consumers’ behavior; that they may undermine the efficacy of both legal and technological restraints; and that market participants and lawmakers alike would do well to take them seriously.