Anti-Circumvention Misuse

The anticircumvention provisions of the Digital Millennium Copyright Act penalize both the circumvention of technical protection measures, and supplying the means for such circumvention. These prohibitions are entirely separate from the exclusive rights under copyright, causing some commentators to dub the anti-circumvention right as "paracopyright." Such "paracopyright" effectively grants copyright holders sweeping new ability to impose terms of access on content users: consumers who access content without accepting the content owner's terms would violate the owner's "paracopyright" even if the material accessed is not itself copyrighted or copyrightable.At some point, such leveraging of access control seems certain to overstep the bounds militated by sound policy or intended by Congress. In the past, abuse of intellectual property rights has been curtailed under the doctrine of misuse. Misuse claims first arose in the patent context, where the patent might be leveraged into licensing terms that exceeded the proper scope of the patent grant. More recently, overreaching in copyright licensing has been recognized to constitute a form of misuse. This paper argues that because DMCA "paracopyright" is ripe for abuse, limits on overreaching may be imposed by applying the misuse doctrine in this new area. Just as improper leveraging of patent and copyright may be curtailed by application of the misuse doctrine, so improper leveraging of paracopyright should be curtailed by application of misuse. This new application of misuse doctrine may be guided by the standards established in previous applications to patent and copyright law, and may serve a similar function in regulating the excesses invited by the anticircumvention right.