© 1999 Pamela Samuelson.

Professor of Information Management and of Law, University of California at Berkeley; Co-Director of the Berkeley Center for Law and Technology. This paper is an outgrowth of work initially done for an Emory Law School conference on the law of cyberspace held in February 1996. The draft article produced for that conference entitled Technical Protection for Copyrighted Works discussed a 1995 legislative proposal for regulating the circumvention of technical protection systems. I am deeply indebted to Benjamin Black who was my research assistant during preparation of this draft. He subsequently collaborated with me on a derivative work of that paper. Although that project was never completed, this article builds on the base of that collaboration. I am also grateful for comments on this draft from Hal Abelson, Jonathan Band, Yochai Benkler, Julie Cohen, Gideon Frieder, Joan Feigenbaum, Bob Glushko, Peter Huang, Laurel Jamtgaard, and Kurt Opsahl.

1. See WILLIAM J. CLINTON & ALBERT GORE, JR., A FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE (1997), available at <http://www.iitf.nist.gov/eleccomm/ecomm.htm> [hereinafter FRAMEWORK].

2. See id. at 2-4.

3. See U.S. GOV'T WORKING GROUP ON ELEC. COMMERCE, FIRST ANNUAL REPORT (1998), available at <http://www.doc.gov/ecommerce/E-comm.pdf> [hereinafter FIRST ANNUAL REPORT].

4. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).

5. See FIRST ANNUAL REPORT, supra note , at 2.

6. See WIPO Copyright Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/94 (Dec. 23, 1996) [hereinafter WIPO Copyright Treaty]. There were actually two treaties concluded at this diplomatic conference. The other was the WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/95 (Dec. 23, 1996). Because the U.S. protects the interests of producers and performers of phonograms largely through copyright law and because the phonograms treaty was not materially different in its requirements as regards issues covered in this article, the article will, for the sake of simplicity, focus on the WIPO Copyright Treaty provisions.

7. See generally Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. INT'L L. 369 (1997) (discussing the negotiations leading to conclusion of the WIPO Copyright Treaty).

8. See infra notes - and accompanying text for a discussion of these norms.

9. See FIRST ANNUAL REPORT, supra note , at 10-11.

10. See, e.g., Pamela Samuelson, Big Media Beaten Back, WIRED, March 1997, at 64 (explaining that U.S. law was in compliance with almost all norms of the treaty). Only the treaty provision calling for protecting the integrity of rights management information needed legislative implementation in U.S. law. WIPO Copyright Treaty, supra note , art. 12; see also infra notes - and accompanying text.

11. WIPO Copyright Treaty, supra note , art. 11. The DMCA anti-circumvention provision can be found at 17 U.S.C.A. 1201 (West Supp. 1999). See infra notes 66-70 and accompanying text for a discussion of why the treaty did not require the DMCA provisions.

12. See infra Part III for an articulation of these principles. See infra Parts V-VIII for an analysis of why these provisions may be harmful to digital economy interests.

13. See FIRST ANNUAL REPORT, supra note , at 14.

14. See infra Part V.

15. See U.S. DEP'T OF COMMERCE INFO. INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (1995) [hereinafter White Paper]. Numerous articles have criticized this and an earlier draft report because of its imbalance heavily tilted in favor of publisher interests. See, e.g., Peter A. Jaszi, Caught in the Net of Copyright, 75 OR. L. REV. 299 (1996); Leslie Kurtz, Copyright and the National Information Infrastructure, 18 EUR. INTELL. PROP. REV. 120 (1996); Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L. 29 (1994); Charles R. McManis, Taking TRIPS on the Information Superhighway: International Intellectual Property Protection and Emerging Computer Technology, 41 VILL. L. REV. 207 (1996); Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134.

16. See infra Parts V-VII.

17. See, e.g., WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary 105th Cong. 78-82 (1997) [hereinafter Judiciary Hearing] (statement of Jack Valenti, President and CEO, Motion Picture Ass'n of America); id. at 256-65 (statement of Edward J. Black, President, Computer and Communications Industry Ass'n ). It should be noted that the Business Software Alliance, whose principal member is Microsoft, supported Hollywood's preferred bill for reasons which may become apparent later in this article. See infra notes - and accompanying text. See also Judiciary Hearing, supra, at 68-77 (statement of Robert W. Holleyman II, President, Business Software Alliance).

18. See, e.g., Judiciary Hearing, supra note , at 78-82 (statement of Jack Valenti); id. at 204-12 (statement of Allan R. Adler, Vice President for legal and governmental affairs, Ass'n of American Publishers).

19. See infra notes - and accompanying text. Other groups opposed to the broad anti-circumvention legislation of H.R. 2281 included librarians and educators. See infra notes - and accompanying text.

20. The Digital Future Coalition-whose members include the Computer & Communications Industry Association, among other high tech industry groups-endorsed H.R. 3048, 105th Cong. (1997), which proposed such a narrow circumvention provision. See Introduction of the Digital Era Copyright Enhancement Act, 55 BNA PAT., TRADEMARK & COPYRIGHT J. 68, 70-71 (1997) (describing the anti-circumvention provision of H.R. 3048). See also Judiciary Hearing, supra note , at 256-65 (statement of Edward J. Black) (critical of the Administration's anti-circumvention proposal); id. at 249-56 (statement of Chris Byrne, Director of Intellectual Property, Silicon Graphics, Inc., on behalf of the Info. Tech. Indus. Council) (critical of H.R. 2281).

21. See, e.g., Judiciary Hearing, supra note , at 260 (prepared statement of Edward J. Black); see also id. at 154-55 (prepared statement of Prof. Robert L. Oakley, Georgetown University Law Center).

22. See infra Part V.

23. See infra Part III.

24. See FRAMEWORK, supra note , at 3. For further criticism of the DMCA's anti-circumvention provisions on constitutional grounds, see Yochai Benkler, Free As the Air To Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999).

25. See infra Part VI.

26. See infra Part VII.

27. See infra Part VIII.

28. U.S. DEP'T OF COMMERCE, SECRETARIAT ON ELEC. COMMERCE, THE EMERGING DIGITAL ECONOMY 1 (1998) [hereinafter EMERGING DIGITAL ECONOMY].

29. See id. at 4.

30. See id. at 6.

31. See id.

32. See id. Of course, it is fair to observe that some of this growth has occurred by virtue of acquisitions of other substantial firms, such as Compaq's acquisition of Digital Equipment Corp.

33. See, e.g., James J. Cramer, TulipMania.com? Despite their soaring prices, the best Internet stocks are still bargains. Here's how to pick 'em, TIME, Aug. 3, 1998, at 77; see generally Steve Mott, Where Eagles Soar: Making Sense of Internet Valuations, BUSINESS 2.0, Nov. 1998.

34. See EMERGING DIGITAL ECONOMY, supra note , chs. 4-5 (discussing digital economy sectors).

35. See id.

36. See id.

37. See id. at 50-51.

38. FRAMEWORK, supra note , at 2; EMERGING DIGITAL ECONOMY, supra note , at 50-51.

39. FRAMEWORK, supra note , at 2-3.

40. See id. at iii-v.

41. See id. at iii, 7 (mentioning passage of the Internet Tax Freedom Act); see also id. at 12 (discussing foreign tax initiatives).

42. See, e.g., ESTHER DYSON, RELEASE 2.0 (1997).

43. See Judiciary Hearing, supra note , at 79-80 (prepared statement of Jack Valenti).

44. See id. (testimony of Edward J. Black; testimony of Chris Byrne); see also The WIPO Copyright Treaties Implementation Act: Hearing on H.R. 2281 Before the Subcomm. on Telecomm., Trade, & Consumer Protection of the House Comm. on Commerce, 105th Cong. (1998) [hereinafter Commerce Hearing].

45. See WIPO Copyright Treaty, supra note . See also Samuelson, supra note (discussing the digital agenda WIPO treaty provisions).

46. There was an explicit provision on the reproduction right in the draft treaty initially considered at WIPO. See Basic Proposal For the Substantive Provisions of the Treaty On Certain Questions Concerning the Protection of Literary and Artistic Works To Be Considered at the Diplomatic Conference, WIPO Doc. CRNR/DC/4, art. 7(1) (Aug. 30, 1996). However, this provision did not attract consensus because of its inclusion of temporary reproductions, which was highly controversial. See Samuelson, supra note , at 382-90. Instead, the diplomatic conference agreed on certain statements of interpretation of the treaty which included a provision on the reproduction right. See Agreed Statements Concerning the WIPO Copyright Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/96 at 1 (Dec. 23, 1996) [hereinafter Agreed Statements]. For a discussion of the tortured history of the draft treaty provision, the Agreed Statements, and what they mean, see Samuelson, supra note , at 382-92.

47. See WIPO Copyright Treaty, supra note , art. 8. While the United States does not have an exclusive right of communication in its copyright law, see 17 U.S.C. 106 (1994) (exclusive rights provisions), its public performance and distribution rights are substantively equivalent to this right. See id.; Samuelson, supra note , at 392-98 (discussing negotiations concerning digital communications).

48. See Agreed Statements, supra note , at 2. This agreed statement was in striking contrast to the proposed treaty language and proposed comments on exceptions and limitations to copyright in the draft treaty considered at the WIPO diplomatic conference. See Samuelson, supra note , at 398-409 (discussing the draft and final provisions on fair use and other exceptions). Although the White Paper had expressed doubts about the viability of fair use in the digital environment, the Clinton Administration was ultimately persuaded that the WIPO Copyright Treaty should contain a more positive statement about fair use in the digital environment. See White Paper, supra note , at 82; Samuelson, supra note , at 406.

49. See Agreed Statements, supra note , at 2. This issue had been highly contentious, both in the U.S. and at the diplomatic conference, because the Clinton Administration supported holding online service providers strictly liable for infringing acts of their users. See White Paper, supra note , at 114-24; Samuelson, supra note , at 385-88 (discussing controversy at diplomatic conference). The DMCA included a provision substantially limiting on online service provider liability. See 17 U.S.C.A. 512 (West Supp. 1999).

50. See WIPO Copyright Treaty, supra note , art. 12. For a discussion of the history and meaning of this provision, see Samuelson, supra note , at 415-18.

51. See WIPO Copyright Treaty, supra note , art. 11. The draft treaty considered at WIPO included a provision quite similar to the anti-circumvention provision endorsed by the Clinton Administration in the White Paper which sought to outlaw technologies, the primary purpose or effect of which was to circumvent technical protection measures. The draft treaty provision, like the White Paper's proposed anti-circumvention regulation, was highly controversial within the United States and even more so at the diplomatic conference. Many delegations expressed concern about the impact of such regulations on fair uses and public domain information. As a consequence, the final treaty included only a very general norm on anti-circumvention. See Samuelson, supra note , at 409-15.

52. Other factors besides uncertainties about the application of copyright law in the digital environment may be responsible for the slower-than-anticipated growth in the market for digital versions of copyrighted works. See, e.g., Pamela Samuelson, Authors' Rights in Cyberspace: Are New International Rules Needed?, FIRST MONDAY (Oct. 1996), available at <http://www.firstmonday.dk/issues/issue4/samuelson/index.html>. However, there is a better case for such uncertainties being an impediment on an international scale than in the United States. That U.S. copyright law protects authors against unauthorized digital reproductions of their works has been clear since 1979. See NATIONAL COMM'N ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT (1979). In some countries, however, this was not as clear. Insofar as the WIPO Copyright Treaty clarified this on an international basis, it did contribute to the legal infrastructure for global e-commerce. See Samuelson, supra note , at 382-85 (discussing lack of clarity about the reproduction right in the digital environment).

53. See, e.g., FIRST ANNUAL REPORT, supra note , at 13-14.

54. FRAMEWORK, supra note , at 3.

55. See List of Participants, WIPO Doc. No. CRNR/DC/INF.2 (Dec. 20, 1996).

56. The WIPO Copyright Treaty, as finally concluded, was actually far more consistent with U.S. copyright law than the draft treaty with which the negotiations had begun (and which was substantially based on proposals by U.S. officials). See Samuelson, supra note , at 434-37.

57. See, e.g., Sega Enterprises, Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994).

58. See, e.g., Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).

59. See, e.g., Lewis Galoob Toys, Inc. v. Nintendo of America, 964 F.2d 965 (9th Cir. 1992) (software enabling temporary changes in the play of Nintendo games held fair use).

60. See, e.g., Religious Tech. Center v. Netcom Online Comm. Corp., 907 F. Supp. 1361 (N.D. Cal. 1995) (online service provider should not be held strictly liable for user infringement of which it had no knowledge).

61. See Clinton Administration Is Undecided On Implementing Steps For WIPO Treaties, 53 BNA PAT., TRADEMARK & COPYRIGHT J. 241 (1997).

62. See Samuelson, supra note , at 427-32 (arguing that U.S. efforts at WIPO conference were aimed at bypassing contention over domestic legislative proposals).

63. See WIPO Copyright Treaty, supra note , art. 12. Had this treaty defined the term "rights management information" ("RMI") only as "information which identifies the work, the author of the work, the owner of any right in the work," the U.S. could have relied on section 43(a) of the Lanham Act to assert that it was in compliance with the norms of this Article as well. See Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 BERKELEY TECH. L.J. 161, 169 n.31. However, the treaty defines RMI as including "information about the terms and conditions of use of the work, or any numbers or codes that represent such information...." WIPO Copyright Treaty, supra note , art. 12. Section 43(a) would not seem to cover misrepresentations of this sort. See 15 U.S.C. 1125(a) (1994); see also Cohen, supra, at 169 n.31. In addition, it appears that some technical amendments to U.S. law were necessary to change the terminology about which foreign nationals could claim rights under U.S. law. See Section-by-Section Analysis of H.R. 2281 As Passed By the United States House of Representatives on August 4, 1998, 105th Cong., at 3-4 (1998) [hereinafter House Manager's Report].

64. See 17 U.S.C.A. 1202 (West Supp. 1999). Concerns had earlier been expressed that copyright management systems might be intrusive on privacy interests of users. See, e.g., Julie E. Cohen, The Right to Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981 (1996). In response to concerns of this sort, the legislative history of DMCA makes clear that copyright management information ("CMI") does not include digital information used to track or monitor usage of copyrighted works: "It would be inconsistent with the purpose and construction of this bill and contrary to the protection of privacy to include tracking and usage information within the definition of CMI." House Manager's Report, supra note , at 20.

65. It is far more plausible that the U.S. is in compliance with the WIPO treaty anti-circumvention norm than that it is in compliance with the moral rights provision of the Berne Convention, which is one of the minimum standard rules required of Berne Union members. See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, art. 6bis (Paris Text, 1971, amended 1979), reprinted in 1 BASIC DOCUMENTS OF INT'L ECON. L. (CCH) 715 (1994). See also Jessica Litman, The Tales That Article 2B Tells, 13 BERKELEY TECH. L.J. 931, 932 (1998) (discussing the U.S. rationale for claiming to be in compliance with the Berne Convention's moral rights provision, and expressing skepticism about the adequacy of this rationale). See also Jonathan Band & Taro Isshiki, The New Anti-Circumvention Provision in the Copyright Act: A Flawed First Step, 3 CYBERSPACE LAW. 2 (1999) (explaining that the DMCA's anti-circumvention regulations were not required for compliance with the WIPO Copyright Treaty).

66. See White Paper, supra note , at 232-34 (discussing statutes); Sega Enterprises, Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994) (finding copyright liability for providing tools to enable game software to be removed from disks and posted on the Internet).

67. See, e.g., Judiciary Hearing, supra note , at 78 (statement of Jack Valenti) (citing $60 billion in annual U.S. revenues from international sales of intellectual property and naming copyright industry as single greatest contributor to U.S. economy); Motion Picture Ass'n of America Research Dep't, MPAA 1998 U.S. Economic Review (visited Apr. 22, 1999) <http://www.mpaa.org/useconomicreview/1998/index.htm> (demonstrating steadily increasing U.S. box office receipts between 1991 and 1998).

68. See, e.g., Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. REV. 557, 561-62 (1998); David Friedman, In Defense of Private Orderings, 13 BERKELEY TECH. L.J. 1151, 1163-64 n.31 (1998).

69. See Ejan Mackaay, The Economics of Emergent Property Rights on the Internet, in THE FUTURE OF COPYRIGHT IN A DIGITAL ENVIRONMENT 13, 21 (P. Bernt Hugenholtz ed., 1996). "It is this restraint," says MacKaay, "that guards us from sliding into rent-seeking." Id. at 22.

70. See H.R. 3048, 105th Cong. 8 (1997). Northern Virginia Representative Rick Boucher (whose district includes America Online) cosponsored this bill.

71. This was how most previous regulations of circumvention technologies had been framed. See, e.g., Thomas C. Vinje, A Brave New World of Technical Protection Systems, 8 EUR. INTELL. PROP. REV. 431 (1996).

72. See supra note .

73. The anti-circumvention regulations are one of a number of amendments to the Copyright Act of 1976 that are contributing to its becoming increasingly unreadable. See, e.g., 17 U.S.C. 104A (1994) (restoration of copyright in foreign works that had fallen into the public domain for lack of compliance with U.S. formality rules in effect until 1989). This is not to say that the 1976 Act was a model of comprehensibility in all respects. See, e.g., 17 U.S.C. 111-112 (1994) (effective Jan. 1, 1978) (exceptions permitting passive retransmission of broadcast signals by cable systems and ephemeral recordings during broadcast transmission). However, these incomprehensible provisions had at least been negotiated by affected industry sectors who understood what the provisions meant, even if virtually no one else could comprehend them. In contrast, the restoration of foreign copyright and the new anti-circumvention regulations affect a broad range of industries. This makes the incomprehensibility of the provisions more troublesome.

74. See Samuelson, supra note (discussing the copyright maximalist agenda the Clinton Administration has supported).

75. The potential for broad anti-circumvention regulations to give copyright owners power to control the design of consumer electronics products was recognized in Geneva. See John Browning, Africa 1, Hollywood 0, WIRED, March 1997, at 61, 186 ("Japan and other Asian nations were up in arms about proposals that would effectively have turned the consumer electronics industry into a branch of publishing."). Indeed, some unnoticed provisions of the DMCA will require the makers of consumer videotape recorders to build in anti-copying technology in subsequent models. See 17 U.S.C.A. 1201(k).

76. 17 U.S.C.A. 1201(a)(1)(A).

77. See id.; infra notes - and accompanying text.

78. See id. 1201(d)-(j), discussed infra notes - and accompanying text.

79. Id. 1201(a)(2); see also id. 1201(a)(3) (defining the phrases "circumvent a technological measure" and "effectively controls access to a work").

80. Id. 1201 (b)(1); see also id. 1201(b)(2) (defining the terms "circumvent protection afforded by a technological measure" and "effectively protects a right of a copyright owner under this title").

81. Id. 1201(a)(2), (b)(1).

82. Id. 1201(a)(2)(A), (b)(1)(A). There is no definition of "primarily designed or produced" in the statute; nor are any criteria for determining it provided in the statute.

83. Id. 1201(a)(2)(B), (b)(1)(B). This subsection may be the broadest and most dangerous of the three conditions because it would seem to put at risk "freeware" or "shareware" programs that, by their very nature, have no commercial uses. MIT Professor Hal Abelson has informed me that he expressed his reservations about this subsection to Rep. Barney Frank who serves on the House Intellectual Property Subcommittee. Prof. Abelson said that this provision should outlaw technologies having "only limited legitimate uses." He reports that Rep. Frank agreed with this assessment. Yet the final provision retains the "limited commercial purposes" construction with which it began. Email correspondence with Hal Abelson (Feb. 28, 1999) (on file with author).

84. 17 U.S.C.A. 1201(a)(2)(C), (b)(1)(C).

85. See id. 1201(g)(4), (j)(4).

86. See H.R. 2281 1201, 105th Cong. (1997) (as introduced in the House of Representatives on July 29, 1997), reprinted in 54 BNA PAT., TRADEMARK & COPYRIGHT J. 270 (1997).

87. See, e.g., Judiciary Hearing, supra note , at 256-61 (statement of Edward J. Black).

88. See Letter from Dr. Charles Brownstein, Chair of the Public Policy Committee of the U.S. Chapter of the Association for Computing Machinery, to Rep. Thomas J. Bliley, Chairman of the House Commerce Committee (Sept. 29, 1998) (on file with author) (expressing concern about impact of broad anti-circumvention regulations on computer security research). See also FRAMEWORK, supra note , 6 (emphasizing the importance of computer security to the growth of global economic commerce).

89. See infra Part V.

90. See Commerce Hearing, supra note , at 32-33 (prepared statement of Chris Byrne, Director of Intellectual Property, Silicon Graphics, Inc., on behalf of Info. Tech. Indus. Council); id. at 28-30 (statement of Jonathan Callas, Chief Technology Officer, Network Assocs., Inc.); id. at 58-63 (statement of Seth Greenstein, Esq., on behalf of the Digital Media Ass'n); id. at 46-49 (statement of Walter H. Hinton, Vice President, Storage Tech. Corp., on behalf of the Computer and Communications Indus. Ass'n); id. at 18-27 (statement of Gary J. Shapiro, Chairman, Home Recording Rights Coalition, and President, Consumer Elecs. Mfrs. Ass'n).

91. See 17 U.S.C.A. 1201(f), (g), and (j).

92. See id. 1201(c)(3); 144 CONG. REC. H7093, H7095 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley).

93. See id. at H7094-95 ("This provision is not aimed at products that are capable of commercially significant noninfringing uses...."). See also id. at H7097 ("[I]t is not enough for the primary effect of the device to be circumvention. It, therefore, excludes legitimate multipurpose devices...."); House Manager's Report, supra note , at 9 ("[Section 1201(a)(2)] is carefully drafted to target 'black boxes' and to ensure that legitimate multipurpose devices can continue to be made and sold."); infra note and accompanying text.

94. See infra notes -and accompanying text.

95. See, e.g., House Subcommittee Holds Hearings on WIPO Treaty Bills, OSP Liability, 54 BNA PAT., TRADEMARK & COPYRIGHT J. 414 (1997).

96. See, e.g., Judiciary Hearing, supra note , at 204-12 (statement of Allan Adler).

97. See, e.g., id. at 229, 235-36 (testimony of Michael K. Kirk, executive director, American Intellectual Property Law Ass'n).

98. See 17 U.S.C.A. 1201(d)-(i) (West Supp. 1999).

99. See id. 1201(c)(1)-(4).

100. See id. 1201(a)(1)(A)-(C).

101. See id. 1201(f) (reverse engineering exception), 1201(g) (encryption research), and 1201(j) (computer security testing). See also Judiciary Hearing, supra note , at 260-61 (prepared statement of Edward J. Black) (expressing concern about reverse engineering); Commerce Hearing, supra note , at 29-30 (prepared statement of Jonathan Callas) (expressing concern about encryption and security research).

102. See infra Part V.B.

103. See supra note .

104. See Band & Isshiki, supra note (indicating that Patent and Trademark Office (PTO) officials had initially sought to outlaw circumvention of copy controls, as well as of access controls, and that lobbying by library and educational groups had persuaded Commerce Department officials to drop this provision of the PTO's preferred bill).

105. See H.R. 2281 1201(e), 105th Cong. (1997) (as introduced in the House of Representatives on July 29, 1997). The DMCA version of 1201 has such a provision, although it has been expanded to enable government agencies to test the vulnerabilities of their computer systems or networks. See 17 U.S.C.A. 1201(e) (West Supp. 1999).

106. Virtually all such records would likely embody a modicum of originality that would enable these actors to claim copyright protection in fixations of these records. If these persons used technical protection systems to prevent unauthorized access to these records, any act of the government to circumvent such systems would, strictly speaking, run afoul of 1201(a)(1).

107. H.R. 2281 1201(d) (as introduced in the House of Representatives on July 29, 1997). See 17 U.S.C.A. 1201(c)(1).

108. An extremely narrow interpretation of the provision might suggest that fair use could be raised as a defense to an infringement claim based on activities engaged in after a circumvention had taken place (e.g., reproducing a portion of the work for fair use purposes), even if the act of circumvention itself would not be excused. See Judiciary Hearing, supra note , at 235-36 (testimony of Michael K. Kirk).

109. See also White Paper, supra note , at 231 (indicating that copyright owners have no obligation to make their works available in a form that will enable fair uses to be made of them).

110. Judiciary Hearing, supra note , at 208 (prepared statement of Allan Adler). This same speaker went on to say that "[t]he Declaration of Independence is in the public domain, but there is nothing wrong with the National Archives keeping it in a vault and punishing anyone who tries to break through security to get hold of that copy." Id.

111. See House Manager's Report, supra note , at 5 (characterizing circumvention to get unauthorized access as "the electronic equivalent to breaking into a locked room to obtain a copy of a book"). But see, e.g., Friedman, supra note , at 1163 n.31 (arguing against the treatment of technologies capable of circumventing technical protection systems as "the digital equivalent of burglar's tools").

112. See Cohen, supra note , at 174-76 (discussing lawful circumvention); see also Julie E. Cohen, Copyright and The Jurisprudence of Self-Help, 13 BERKELEY TECH. L.J. 1089, 1142 n.200 (1998) (finding in copyright's fair use doctrine an affirmative right to "hack" technical protection systems to make fair uses).

113. See 144 CONG. REC. H7097 (daily ed. Aug. 4, 1998) (letter from Rep. Howard Coble to Rep. Rick Boucher) (indicating an intent to distinguish between circumvention to get unauthorized access to a work and circumvention to make fair uses).

114. See Harjo v. Pro-Football, Inc., 45 U.S.P.Q.2d (BNA) 1789 (1998); 15 U.S.C. 1052(a) (1994) (excluding scandalous and disparaging matter from trademark protection); See also "Redskins" Mark is Cancelled as Disparaging to Native Americans, BNA PAT., TRADEMARK & COPYRIGHT LAW DAILY (Apr. 12, 1999).

115. See, e.g., 144 CONG. REC. H7093 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley) (indicating that the Commerce Committee understood the legislation to enable consumers to "exercise their historical fair use rights"); see also id. at H7097 (letter from Rep. Coble to Rep. Boucher).

116. But see infra notes - and accompanying text for a discussion about whether this person's development of a technology enabling him to defeat the technical protection system would be similarly privileged.

117. See, e.g., Commerce Hearing, supra note , at 64-66 (statement of Prof. Robert L. Oakley).

118. See 17 U.S.C.A. 1201(d) (West Supp. 1999).

119. See infra notes - and accompanying text, concerning whether the shopping privilege could be undermined by the lack of available tools to enable this circumvention.

120. See, e.g., Judiciary Hearing, supra note , at 148-56 (statement of Robert L. Oakley); id. at 64-68 (statement of M.R.C. Greenwood, chancellor of the University of California, Santa Cruz) (expressing concerns about the impact of technical protection systems on noninfringing uses of protected works-concerns the "shopping privilege" does not address).

121. See, e.g., id. at 256-65 (statement of Edward J. Black) (expressing concern about the impact of the anti-circumvention provisions for achieving interoperability among computer programs).

122. See 17 U.S.C.A. 1201(f) (West Supp. 1999).

123. See id. 1201(c)(3).

124. See id. 1201(c)(2).

125. See Commerce Hearing, supra note , at 1-3 (statement of Rep. Tauzin, Subcomm. Chairman) (explaining the Commerce Committee's reasons for reviewing the WIPO treaty implementation legislation).

126. See Commerce Panel Clears Digital Copyright Bill With Further Concessions on Fair Use, 56 BNA PAT., TRADEMARK & COPYRIGHT J. 326 (1998).

127. This eventually was codified in the DMCA. See 17 U.S.C.A. 1201(g) (West Supp. 1999).

128. These were also eventually codified in the DMCA. See id. 1201(h), (i).

129. See id. 1201(a)(1)(B). See also infra notes - and accompanying text for discussion of this provision.

130. 144 CONG. REC. H7094 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley).

131. See 17 U.S.C.A. 1201(a)(1)(B)-(D). See infra notes - and accompanying text.

132. 144 CONG. REC. H7094 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley).

133. 17 U.S.C.A. 1201(c)(4).

134. Compare H.R. 2281, 105th Cong. (1998) (as passed on Aug. 4, 1998), with Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).

135. See 17 U.S.C.A. 1201(j). This too had been the subject of testimony before the House Commerce Committee. See Commerce Hearing, supra note , at 27-30 (statement of Jonathan Callas).

136. Software developers can embed specialized disabling subprograms in licensed software. These may cause the software to cease operation unless a new code has been made available to the licensee by the licensor. They can also be invoked via a network connection to the licensor's site or by a remote act by the licensor. For a discussion of public policy issues raised by technical self-help systems, see Pamela Samuelson, Embedding Technical Self-Help in Licensed Software, 40 COMM. ACM 13 (1997).

137. A model law to regulate licensing of computer information has proposed to validate, as a matter of contract law, a licensor's use of technical self-help systems as long as certain procedural steps are taken to protect licensee interests. See U.C.C. 2B-716 (Feb. 1999 Draft). See also Memorandum from Susan H. Nycum to Uniform Commercial Code Article 2B Reporter and Drafting Committee regarding Licensor Self-Help Revision of Proposed UCC 2B, at 1 (Jan. 27, 1997) available at <http://www.2bguide.com/docs/nycshelp.html> (expressing objections to proposed validation of technical self-help features in licensed software, speaking of them as a "trap for the unwary-in the extreme"); Memorandum from Michele Kane on behalf of Walt Disney Co. to Prof. Raymond T. Nimmer, Reporter for Article 2B, at 3 (Jan. 27, 1997), available at <http://www.2bguide.com/docs/mkane.html> (strenuously objecting to Article 2B's endorsement of technical self-help provisions in model licensing law as "unnecessary and unfair").

138. See 17 U.S.C.A. 1201(i). For a discussion of the concerns leading to adoption of this exception, see Commerce Hearing, supra note , at 12-18 (statement of Marc Rotenberg, Director, Electronic Privacy Info. Ctr.).

139. See 17 U.S.C.A. 1201(j).

140. See, e.g., John Markoff, Software Security Flaw Puts Shoppers on Internet at Risk, N.Y. TIMES, Sept. 19, 1995, at A1.

141. See 17 U.S.C.A. 1201(c)(4).

142. See supra note (licensor whose self-help feature might be defeated by a licensee).

143. See 17 U.S.C.A. 1204.

144. See id. 1201(c)(1).

145. Section 1203(a) requires that a person be "injured by a violation of section 1201" in order to bring a suit to challenge a violation of this provision. Id. 1203(a).

146. Professor Julie Cohen, in commenting on the structure of section 1201, observed that this provision is almost European in its construction. Typically, European legislators formulate laws as though all contingencies can be foreseen and the rule can be established for all time. Europeans typically provide a broad rule and only limited exceptions to the rule. American laws more typically have some openness that allow the laws to adapt to new circumstances. This may provide American law with needed flexibility in times of rapid technological change. Yet, section 1201 deviates from this general American approach. Conversation with Julie E. Cohen (Jan. 1999).

147. See 17 U.S.C.A. 1201(c)(1), (c)(4), discussed supra notes , , - and accompanying text. This same subsection indicates that it also does not intend to enlarge or diminish vicarious or contributory copyright infringement. See id. 1201(c)(2).

148. See id. 1201(a)(1)(B)-(D).

149. See id. 1201(f). This exception preserves the fair use privilege recognized in Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992), that permits the intermediate copying of computer programs when necessary to obtain information in order to achieve interoperability among independently developed computer programs.

150. See Benkler, supra note , at 416 ("If the act of circumvention were privileged to users, particularly if it were privileged as a matter of free speech, it would be difficult to sustain a prohibition on manufacture and sale of the products necessary to enable users to engage in circumvention.").

151. See, e.g., James R. Davis, On Self-Enforcing Contracts, the Right to Hack, and Willfully Ignorant Agents, 13 BERKELEY TECH. L.J. 1145, 1147 (1998) (questioning whether a "right to hack" for fair use would be meaningful, given that most users would be unable to overcome technical protection systems without tools designed for that purpose).

152. See 17 U.S.C.A. 1201(f)(2), (g)(4).

153. See id. 1201(e), (i). There is, however, a better textual argument for inferring a tool-making privilege for law enforcement activities than for inferring tool-making authority to enable privacy protection. Section 1201(i) limits the application of section 1201(a)(1)(A), whereas 1201(e) indicates that "this section does not prohibit any lawfully authorized investigative ... activity" of a government agent.

154. See id. 1201(f)(2).

155. See id. 1201(g)(4), (j)(4).

156. See Cohen, supra note , at 174-78 (discussing lawful tampering with technical protection systems and its implications for the availability of tools to accomplish this).

157. See supra note - and accompanying text.

158. See 17 U.S.C.A. 1203(c)(3). This researcher would likely be spared from criminal liability for violation of 1201(b) because he was serving as a pro bono publico expert witness in this case. Section 1204(a) requires that a violation of 1201 not only be willful, but done for commercial advantage or private financial gain for criminal liability to be imposed. See id. 1204(a).

159. Id. 1201(b)(1).

160. See House Manager's Report, supra note , at 9-13.

161. Alternatively, the court could find only a technical or de minimis violation of the statute in this instance.

162. 17 U.S.C.A. 1201(b)(1).

163. 775 F.2d 638 (5th Cir. 1985).

164. In essence, this and other "spoofing" software generally operate by emitting a signal which will be interpreted by the other firm's copy-protection software (or conceivably hardware) as an indication that the system is operating effectively.

165. Vault also claimed direct copyright infringement, trade secret misappropriation, and breach of contract. See Vault, 847 F.2d at 257-58.

166. See id. at 262 (relying on the Supreme Court's decision in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), which rejected a claim that Sony had contributorily infringed Universal's movie copyrights by selling Betamax machines which enabled home copying of these movies off the broadcast television because of noninfringing uses of the Betamax machine).

167. Quaid could probably argue that Ramkey was primarily designed to enable bypassing of the Prolok system for lawfully acquired copies of protected programs. This would seem to make 1201(a)(2) inapplicable to the Vault v. Quaid-like controversies.

168. An interesting question is who could sue Quaid under 1201(b)(1). The Clinton Administration's Green Paper on Intellectual Property and the National Information Infrastructure suggested that the maker of a protective technology, such as Vault, would not have standing to challenge the maker of circumvention technologies. See U.S. GOV'T WORKING GROUP ON INTELLECTUAL PROPERTY, GREEN PAPER ON INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE 130 (1994). Copyright owners who used technical protection systems to protect their works would seem to have standing to initiate the suit. This could mean that a firm such as Quaid would thus be faced, not just with one lawsuit, but potentially thousands to defend. As will be discussed further, see infra note and accompanying text, in none of these lawsuits would the plaintiff have to demonstrate that any underlying act of infringement actually took place. The White Paper was silent on the issue of standing. Nor is the issue expressly dealt with in the DMCA. Proposals by representatives of Macrovision Corp., which makes technical protection systems, to change 17 U.S.C.A. 1203(a) to facilitate its ability to obtain standing in such a suit were not heeded by Congress. See Judiciary Hearing, supra note , at 271-77 (statement of Mark S. Belinksy, Vice President, Copy Protection Group, Macrovision Corp.).

169. See 17 U.S.C.A. 1201(a)(2), (b)(1).

170. See id. 1201(c)(1), discussed supra notes , , -, and accompanying text.

171. See 17 U.S.C. 117 (1994).

172. Even they, of course, may have to manufacture a technology or provide a service to make backup copies, in apparent violation of section 1201's anti-device rules. See Benkler, supra note , at 416.

173. 17 U.S.C.A. 1201(c)(3). Recall that the main claim made by Vault against Quaid was a contributory infringement claim, and it was unsuccessful. See supra note - and accompanying text.

174. See Judiciary Hearing, supra note , at 57 (statements of Hon. Bruce A. Lehman, Commissioner of Patents and Trademarks, Patent and Trademark Office).

175. See Commerce Hearing, supra note , at 54-58 (prepared statement of Steven J Metalitz on behalf of the Motion Picture Ass'n of America) (objecting to proposals that would require copyright owners to prove that circumvention or circumvention devices would cause infringement).

176. There is no "authority of law" exception in the DMCA's anti-device provisions, as there was in the White Paper's original proposal for an anti-device regulation. See White Paper, supra note , app. 1 at 6. How, if at all, this might affect the scope of the DMCA's anti-device provisions remains to be seen.

177. See Peter H. Lewis, Whoosh! The Next Pentium Chip Is On Its Way, N.Y. TIMES ON THE WEB (Jan. 14, 1999) <http://www.nytimes.com/library/tech/99/01/circuits/articles/12pete.html>.

178. See Jeri Clausing, Privacy Groups Seek Recall of Intel Chip, N.Y. TIMES ON THE WEB (Jan. 29, 1999) <http://www.nytimes.com/library/tech/99/01/cyber/articles/29privacy.html>. Although the threat the Intel processor ID poses for privacy has gotten the most attention in the press, the potential for the Intel processor ID to be used to prevent "piracy" of software has also been recognized. See Peter Wayner, Debate on Intel Chip Misses Piracy Issue, N.Y. TIMES ON THE WEB (Jan. 30, 1999) <http://www.nytimes.com/library/tech/99/01/cyber/articles/30chip.html>.

179. See Jeri Clausing, Intel Alters Plan Said to Undermine PC Users' Privacy, N.Y. Times, Jan. 26, 1999, at A1.

180. "Trusted system" is a term used to describe a computer and software system constructed to make it impossible (or at least very difficult) to make unauthorized copies or uses of legally protected works. See Mark Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us To Rethink Digital Publishing, 12 BERKELEY TECH. L.J. 137 (1997).

181. This is no mere conjecture. Microsoft is reportedly intending to deploy trusted system software with the next version of Windows. See Jason Chicola et al., Digital Rights Architectures for Intellectual Property Protection 99 (1998), paper prepared for Ethics and Law on the Electronic Frontier, Massachusetts Institute of Technology, available at <http://swissnet.ai.mit.edu/6805/student-papers/fall98-papers/trusted-systems/trustsys.doc> (MS Word document). This is especially worrisome since Microsoft has a monopoly position in the market for operating systems software, making it largely immune from competitive pressures that might limit its ability to impose trusted system technology on the market.

182. Another important policy initiative affecting the enforceability of mass-market licenses of this sort is proposed Article 2B of the Uniform Commercial Code. See generally Symposium, Intellectual Property and Contract Law in the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Transactions in Information and Electronic Commerce, 13 BERKELEY TECH. L.J. 809 (1998); Symposium, Intellectual Property and Contract Law for the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Information and Commerce, 87 CALIF. L. REV. 1 (1999).

183. If the Pentium III chip ID is designed to allow for copyright protection, as Intel claims it is, it might be a technology which effectively controls access to copyrighted works under 1201. If so, it would seem that a hardware device which disables the Processor Serial Number could be subject to the anti-device provisions. Take, for example, IBM's new hardware disablement feature: "IBM plans to go the extra step and disable the processor ID feature at the BIOS (or hardware) level in our Pentium III client systems," Letter from Chistopher G. Caine on behalf of IBM Corp. to Jerry Berman, Executive Director of the Center for Democracy and Technology (Jan. 24, 1999), available at <http://www.cdt.org/privacy/ibmletter.shtml>.

184. Posting information on the website might be seen as providing a service to the circumventors.

185. See 17 U.S.C.A. 1201(i) (West Supp. 1999). This provision is extremely complicated and would seem to be very narrow. It is not clear it would apply to the Microsoft example.

186. See supra note and accompanying text and infra note .

187. See Benkler, supra note , at 416.

188. See White Paper, supra note , at 230-36.

189. See id., app. 1 at 6.

190. See supra note .

191. Professor Benkler likens this strategy to banning VCRs in order to stop home taping. See Benkler, supra note , at 416. Speaking of VCRs, little noticed in DMCA were its provisions requiring consumer electronics companies to build specific anti-copying technologies into future VCRs. See 17 U.S.C.A. 1201(k) (West Supp. 1999).

192. See Judiciary Hearing, supra note , at 212-16 (statement of Gail Markels, General Counsel and Senior Vice President, Interactive Digital Software Ass'n) (relying on example of circumvention device with no legitimate purpose that had been used to pirate games); id. at 273-77 (prepared statement of Mark Belinsky on behalf of Macrovision Corp.) (emphasizing the need to outlaw pirate devices). See also NII Copyright Protection Act of 1995 (Part II): Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. 23 (1996) (prepared statement of Jack Valenti, President and CEO, Motion Picture Ass'n of America) ("But all security measures, no matter how sophisticated, can be circumvented by clever hackers. Therefore, the law must provide clear and effective sanctions against those who would violate the security of the NII. This requires more than mere civil remedies. Criminal sanctions are essential. Too many NII bandits, some operating totally in the underground economy, will scoff at the threat of civil damages, which many regard as simply a cost of doing business. There must be criminal penalties attached to deliberate, systematic acts of circumvention if such acts are to be seriously lessened.").

193. Some commentators even perceive the anti-device rules of 1201 as threatening the distribution of many widely used editing and related software tools. See Peter Wayner, The Copyright Boomerang, SALON MAGAZINE (Nov. 20, 1998) <http://www.salonmagazine.com/21st/feature/1998/11/20feature.html> (considering whether "cutting and pasting" will be rendered unlawful).

194. See Complaint, Sony Computer Entertainment, Inc. v. Connectix Corp., Civ., No. 99-0390 (N.D. Cal., filed Jan. 27, 1999) [hereinafter Sony Complaint]. For a discussion of this lawsuit, see Band & Isshiki, supra note .

195. See Sony Complaint, supra note , at 7-8. This lawsuit is particularly disturbing because the software at issue was named "Best of Show" at Macworld Expo shortly before the lawsuit was filed. See Best of Show, MACWORLD ONLINE (visited Apr. 21, 1999) <http://macworld.zdnet.com/expo/report/bestofshow.html>.

196. A predictable, minimalist, consistent, and simple anti-device norm might outlaw the manufacture and distribution of technologies intended to facilitate copyright infringement or of technologies with limited legitimate uses.

197. See H.R. 2281, 105th Cong. (1997) (as originally introduced into Congress on July 29, 1997); Judiciary Hearing, supra note 17, at 34-42 (statement of Bruce Lehman) (endorsing legislation but not asking for a study provision).

198. See Judiciary Hearing, supra note , at 148-56 (statement of Robert L. Oakley); id. at 64-68 (statement of M.R.C. Greenwood).

199. One of the few concrete examples of a device claimed to have contributed to international piracy was that offered in Judiciary Hearing, supra note , at 213-216 (statement of Gail Markels) (discussing "Game Doctor" said to have been used to pirate game software in Hong Kong and Taiwan).

200. See Letter from Andrew Pincus, General Counsel of the U.S. Dep't of Commerce, to Sen. Patrick Leahy 3 (Aug. 4, 1998) (on file with author) [hereinafter Pincus Letter]. After the House passed the Collections of Information Antipiracy Act, H.R. 2652, 105th Cong. (1998), Mr. Pincus wrote to Senator Leahy to express the Administration's reservations about the wisdom of this bill and about its constitutionality. See Pincus Letter, supra, at 1.

201. Pincus Letter, supra note , at 3. The letter proposed that "such a study might be conducted under the auspices of the Secretary of Commerce in consultation with the Office of Science and Technology Policy and the Register of Copyrights." Id.

202. See 145 CONG. REC. S322 (daily ed. Jan. 19, 1999) (provision entitled "Report to Congress," from one of three potential database bills referred to by Sen. Hatch).

203. See 17 U.S.C.A. 1201(a)(1)(B)-(D) (West Supp. 1999). Section 1201 also contains a provision for studying the impact of the encryption research provision. Id. 1201(f)(5).

204. See supra note and accompanying text.

205. See Commerce Panel Clears Digital Copyright Bill With Further Concessions On Fair Use, 56 BNA PAT., TRADEMARK & COPYRIGHT J. 326, 326 (1998).

206. See id. As Professor Benkler has pointed out, this would not stop copyright owners from employing technical protection systems to inhibit noninfringing uses; it would only allow circumvention to obtain access. See Benkler, supra note , at 428.

207. 17 U.S.C.A. 1201(a)(1)(A) (West Supp. 1999).

208. The first study is to be completed two years after the date of DMCA's enactment. See 17 U.S.C.A. 1201(a)(1)(A) (West Supp. 1999). Follow-on studies are to be conducted every three years thereafter. See id. 1201(a)(1)(C). Given how weak was the showing that gave rise to the DMCA's anti-device provisions, it would seem that the showing of interference with lawful uses ought not to be too rigorous. However, the House Manager's report on the legislation would seem to anticipate a relatively high standard of proof. See House Manager's Report, supra note , at 6-7.

209. See 17 U.S.C.A. 1201(a)(1)(B) (West Supp. 1999). It appears that any moratorium resulting from such a determination will last for three years. Id. 1201(a)(1)(D). The rulemaking procedure set forth in 1201(a)(1)(B)-(D) may, however, be unconstitutional because the Librarian of Congress is not an executive branch official. See Band & Isshiki, supra note , at 7.

210. See 17 U.S.C.A. 1201(a)(1)(A) (West Supp. 1999).

211. Id. 1201(a)(1)(C). Another subsection of the DMCA requires the Register of Copyrights and the Assistant Secretary for Communications and Information of the Commerce Department to study the impact of the encryption research exception. See id. 1201(g)(5).

212. Id. 1201(a)(1)(C).

213. See id. 1201(a)(1)(E).

214. See Benkler, supra note , at 428.

215. The principal value of the study provisions may well lie in deterring some publishers from egregious uses of technical protection systems that would interfere with fair uses..

216. Among the factors likely to limit the effectiveness of the study system devised in the DMCA is the fact that the Librarian of Congress is apparently supposed to initiate studies of the impact of anti-circumvention rules "upon the recommendation of the Register of Copyrights." Id. 1201(a)(1)(C). The Register, in turn, is supposed to consult with an official from the Department of Commerce before recommending a study. See id. It has been a long time since the Register of Copyrights or the Commerce Department have taken more than tepid steps to represent the interests of users of copyrighted works, particularly those from the educational and library sectors. Moreover, because none of the Librarian's findings last for more than a three year period, copyright industry lobbyists will have multiple opportunities to carve back or eliminate any user-friendly exceptions that the Librarian might have the temerity to recommend.

217. See supra note - and accompanying text for examples of legitimate circumvention activities unlikely to be captured by the scope of the intended studies by the Librarian.

218. See supra notes and accompanying text. See also Benkler, supra note , at 416.

219. See supra notes - and accompanying text.

220. See 17 U.S.C.A. 1201 (a)(1)(C) (West Supp. 1999) (setting forth factors); see also Benkler, supra note , at 420 ("[E]nforcement of the anti-device provision is unconstitutional unless and until the Librarian makes a determination that no non-infringing uses will be adversely affected by utilization of technological protection measures.").

221. See supra notes - and accompanying text for examples of other potential deleterious effects.

222. See supra notes -, - and accompanying text.

223. See 17 U.S.C.A. 1203(b) (West Supp. 1999) (civil remedy provision).

224. This potential was recognized in the Congressional debate over the anti-circumvention rules. See 144 CONG. REC., H7096 (daily ed. Aug. 4, 1998) (remarks of Rep. Goodblatte). Although Rep. Goodblatte indicated that computer hacking statutes should be used to deal with computer hacking problems, there is no reason why someone injured by a computer hacker could not seek relief under 1201.

225. See 17 U.S.C. 102 (1994) (copyright protection subsists in all original works of authorship that have been fixed in a tangible medium of expression).

226. See FRAMEWORK, supra note , at 3.

227. See supra notes - and accompanying text.

228. See supra notes , - and accompanying text.

229. See supra note and accompanying text.

230. See supra notes - and accompanying text.

231. See supra notes and accompanying text.

232. See supra notes - and accompanying text.

233. See supra notes - and accompanying text.

234. See supra notes - and accompanying text.

235. See 17 U.S.C.A. 1201(a)(1)(B).

236. See supra notes and accompanying text.

237. See supra notes and accompanying text.

238. See COMPUTER SCIENCE AND TELECOMMS. BD., NATIONAL ACADEMY OF SCIENCES, INTELLECTUAL PROPERTY RIGHTS AND THE EMERGING DIGITAL ECONOMY (forthcoming 1999).

239. See Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12 BERKELEY TECH. L.J. 15, 38-45 (discussing various kinds of systems).

240. See Charles Clark, The Publisher in the Digital World, in INTELLECTUAL PROPERTY RIGHTS AND NEW TECHNOLOGIES: PROCEEDINGS OF THE KNOWRIGHT'95 CONFERENCE 85 (Klaus Braunstein & Peter Paul Sint eds., 1995). See also White Paper, supra note , at 177-90 (foreseeing wide deployment).

241. Carl Shapiro and Hal Varian assert that "[t]rusted systems, cryptographic envelopes, and other copy protection schemes have their place but are unlikely to pay a significant role in mass-market information goods because of standardization problems and competitive pressures." CARL SHAPIRO & HAL VARIAN, INFORMATION RULES 102 (1998).

242. Id. at 98.

243. Benkler, supra note , at 424.

244. See Branko Geravac et al., Electronic Commerce and Intellectual Property-Protect Revenues, Not Bits, 2 IMA INTELL. PROP. PROC. 111 (1996).

245. This, in essence, is what happened when software developers, such as Lotus Development Corp. started distributing copy-protected versions of their programs. Firms with similar products who were willing to sell their products without copy-protection systems attracted enough customers that the leading firms eventually abandoned their technical protection schemes. This is, of course, more likely to occur where markets are competitive and where participants in the market are not acting jointly in deciding on technologies so that consumers will not have a competitive choice.

246. See SHAPIRO & VARIAN, supra note , ch. 4.

247. See id. at 84. Some of these business models may themselves be subject to intellectual property protection. See, e.g., Robert P. Merges, As Many as Six Impossible Patents Before Breakfast: Property Rights for Business Concepts, 14 BERKELEY TECH. L.J. * (1999).