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Rethinking Anticircumvention's Interoperability Policy

  • Author(s): Perzanowski, Aaron K.
  • et al.
Abstract

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and a narrow textual focus on software-to-software interoperability render those safeguards largely ineffective.

Subjecting restrictions on interoperability to antitrust scrutiny, and the resulting mandatory disclosure of technical information, is one approach to holding anticircumvention law in check. But a number of considerations suggest antitrust is a poor tool for lessening the DMCA's impact on interoperability. Whether characterized as tying, denial of essential facilities, or refusal to deal, the use of anticircumvention law to impede interoperability is unlikely to consistently trigger antitrust enforcement. In part, the limits on the ability of antitrust to address the impact of the DMCA stem from its deference to the legislative process. Antitrust rarely interferes with the exercise of legitimately acquired IP rights.

Rather than relying on antitrust to limit the DMCA's restriction of interoperability, this Article proposes a solution that addresses that restriction at its source. Expanding the DMCA's existing interoperability exemption would create an environment more hospitable to interoperable technologies. But in order to preserve the protections the DMCA offers copyright holders, this expanded exemption must disaggregate restrictions on the use of interoperable software and devices from the restrictions on access and copying that Congress intended to enable. The former can be ignored only to the extent the latter are respected.

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