Thursday, January 19, 2006

DMCA and Anti-trust

Prior to the DMCA, courts held that software was a literary work that contained expressive content and could be copyrighted under 17 U.S.C. 102(a). See Myron Hecht, Article: Reconciling Software Technology and Anti-Circumvention Provisions in the Digital Millennium Copyright Act, 2004 UCLA J. L. Tech. 3 (2004). Since the passage of the DMCA, courts have enjoined such software distribution. Id. I think that any similar program that others may circumvent is restricted by the DMCA. Thus, a game software company can block the direct competitions by others who want to introduce the similar games into the market. Copyright holders may use the DMCA to stifle innovation and reduce competition in the marketplace by hindering the efforts of legitimate competitors attempting to develop interoperable products. See Derek J. Schaffner, Note: The Digital Millennium Copyright Act: Overextension of Copyright Protection and the Unintended Chilling Effects on Fair Use, Free Speech, and Innovation, 14 Cornell J. L. & Pub. Pol’y 145 (2004). I think DMCA may give too much right to copyright holder. Copyright holder may take advantage of DMCA to monopolize certain market, when anti-trust issue arose.

However, under the DMCA, a successful claim for secondary copyright infringement depends on effective notice of the allegedly infringing activity by the copyright holder. See Diane M. Baker, Notes: Defining the Contours of the Digital Millennium Copyright Act: The Growing Body of Case Law Surrounding the DMCA, 20 Berkeley Tech. L.J. 47 (2005). Maybe, for the copyright holders, any notice of copyright can be a saft harbor against piracy.


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