That’s the question I’ve been asking myself (and, occasionally, others) for most of the last year. (As some of you know, I’ve spent quite a bit of that time working on a new paper about the DMCA, and I’m not jaded enough yet not to feel a twinge of regret at the prospect that the point I’ve written about may be on its way to becoming moot). The DMCA (in relevant part, 17 U.S.C. § 1201) protects digital rights management (“DRM”) schemes against circumvention, and forbids the creation or distribution of circumvention tools. Do those protections still amount to much in the real world? Consider the state of play in the courts and in the market:
- Reported decisions are down. The years 2000–2005 are beginning to look like the golden age of DMCA litigation. Big cases were litigated and important decisions rendered — Reimerdes and Corley, Chamberlain, Lexmark. Since then, what have we learned? By my reading, most of the more recent DMCA decisions are trial court opinions that mostly involve comparatively narrow, technical issues — the principal exception being last year’s Healthcare Advocates decision, which rejected a dubious attempt to portray a malfunction in an online archive as an incident of “circumvention.” We haven’t had an appellate court opinion on Section 1201 since 2005, and it’s difficult to spot really meaty issues in the current crop of district court decisions.
- Public opposition to DRM has reached influential heights. The crude varieties of DRM that have dominated the marketplace so far have tended to alienate consumers, and word of their alienation has spread. Steve Jobs has suggested dropping DRM, and even Bill Gates has gone squishy. Online music sellers are complaining that DRM is bad for consumers and hurts their business, and even some recording industry executives may be coming around. It hasn’t helped the recording industry, either, that poorly engineered DRM systems have actually infected and damaged innocent purchasers’ computers.
- Content providers are abandoning DRM. We are beginning to see more stories about former DRM advocates changing their stripes. Large audiobook publishers recently walked away from DRM, joining some of the major record labels. And heavily DRM-encumbered services, like Wal-Mart’s unlamented movie download site, have shut down.
So is the marketplace passing the law by? There’s precedent for this in copyright, most notably the 1992 Audio Home Recording Act, which mandated copy protections for digital audio tape (DAT) mini-cassettes. The impact of the AHRA’s technology mandate was, predictably, to kill the DAT market. DAT became a niche technology rather than, as planned, the successor to LPs and analog cassette tapes. The AHRA is still on the books, but has little real work to do any more, since the evolution of the market has taken a path that renders the statute mostly irrelevant. It’s surely too soon to declare the DMCA to be a dead letter, but developments in the market seem to suggest, at a minimum, a more circumscribed future role for the statute than in its early heyday.