Document Type
Article
Abstract
In 1998 Congress passed the Digital Millennium Copyright Act (DMCA) in response to perceived evils unleashed upon copyright holders by the advent of affordable digital technology allowing consumers to make perfect serial copies of works encoded in digital media with little difficulty and little cost. A panicked entertainment industry convinced Congress that, unless a new law was passed to prevent this sort of copying, it would be the end of the entertainment industry as we know it. Industry members claimed that, without broad protection outlawing new copying technologies, illegal copies would be freely traded with little to no control. They painted a picture of a world where digital copying technology was the evil inside Pandora’s Box and was starting to get out. They believed it had to be stopped before those evils were fully unleashed and could never be contained.
In response to these concerns, Congress passed the overly comprehensive DMCA to decisively close the lid on that box and keep all digital copying technologies locked up so that new technology would never foster its evil upon the poor and innocent copyright holders. In doing so, however, Congress unleashed a far greater evil: the DMCA itself. The DMCA is an unconstitutional law that violates Article I, § 8 of the U.S. Constitution in that the DMCA: (1) allows copyright holders to prevent the public from ever copying a work, which is in direct contravention of the limited times provision of that article; and (2) hinders the process of the sciences and useful arts of copying and storage technology which is also in direct contravention of the same section. The DMCA also has the additional effect of shrinking and practically eliminating fair use which is a hallmark of copyright law, by eliminating many of the innovative technological means by which fair use copies may be made.
This Article will address the foregoing issues with respect to the DMCA. With fewer and fewer movies and CDs being released in non-digital format each year, where can consumers get audio visual works that do not fall under the DMCA? Except for the most ardent Luddites, all will be affected by the overreaching powers of this act.
For the purposes of this Article, I have chosen to use the term “entertainment producers” to describe copyright holders, as well as those actors in the market that actually produce the physical copy of the entertainment product. Often, those two groups are one and the same.
Recommended Citation
Joshua Schwartz,
Thinking Outside the Pandora's Box: Why the DMCA is Unconsitutional Under Article I, § 8 of the U.S. Constitution,
10 J. Tech. L. & Pol'y
(2005).
Available at: https://scholarship.law.ufl.edu/jtlp/vol10/iss1/4