The DMCA and Researchers' First Amendment Rights

Amy E. McCall


 The Digital Millennium Copyright Act, or DMCA, was enacted by Congress in October of 1998.1 Section 1201(a)(1) of the Act, known as the "anti-circumvention" provision, states that "[n]o person shall circumvent a technological measure that effectively controls access to a [digital] work protected under this title.".2 Sections 1201(a)(2) and 1201(b) combine to form the "anti-trafficking" provisions, which provide that no one shall distribute technology that can accomplish this circumvention.3 Congress constructed a two-year delay in implementation of these provisions, thus, on October 28, 2000, circumvention of effective technological controls became punishable by both civil and criminal actions.4 Unfortunately, the presence of these provisions, along with courts refusal to recognize traditional copyright privileges and defenses in this area of "paracopyright,"5 chills programmers' speech.

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