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Since they were enacted . . . , the 'anti-circumvention' provisions of the [DMCA] have not been used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works . . . . In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright piracy. As a result, the DMCA has developed into a serious threat to several important public policy priorities.1I. IntroductionImagine that you buy a television set, and after a few years, you lose the remote control. You need to replace it, and you find that you have a choice of buying an expensive new control from the manufacturer of the original television or a cheaper control from a competitor. Presumably, you select the cheaper control.But what if you buy the cheaper control and then get a letter from the television manufacturer that says you have been involved in a contributory infringement of its copyright in some channel-tuning software? This software is installed in the original manufacturer's remote control unit and has been duplicated in the cheaper universal version. The letter directs you to return the universal control to its manufacturer and to purchase a replacement at a higher cost from the original television manufacturer. You also have been accused of contributory involvement in trafficking of a device-the cheaper universal control-intended to circumvent encryption software that controls access to the copyrighted tuning software. Is such an allegation likely to happen? Probably not, but what if you never get the initial choice between the cheaper universal control and the more expensive replacement from the original manufacturer because the company that had been marketing the cheaper control has been put out of business by the television manufacturer on the grounds that the cheaper universal control was infringing the anti-trafficking provisions2 of the Digital Millennium Copyright Act (DMCA)?3If this does not sound like the work of the copyright act to you, think again. At least two recent cases have run arguments like this-one involving laser printer toner cartridges4 and one involving electronic garage door openers.5 To date, the argument has been unsuccessful in each case, despite its initial success at the district court level in the printer toner cartridge litigation.6 Nonetheless, the troubling issue is not the outcome of these specific cases. Rather, it is the potential for the DMCA to be used to quash commercial competition in contexts such as these, where a copyright work-usually software code incorporated into a replacement product such as a toner cartridge or garage door opener-is a purely incidental facet of the product in question. Despite recent judicial determinations against manufacturers of toner cartridges and garage door openers running such arguments, the current legislative and judicial framework leaves a number of avenues open for these arguments to resurface in the future with the potential for success.In passing the DMCA, Congress intended to protect copyright holders against digital piracy in copyright works.7 Congress did not intend to impact significantly the usual rules and policies relating to commercial competition in tangible goods. These rules and policies generally are provided by contract, supplemented by legislation and case law dealing with commercial transactions,8 and also regulated to a significant extent by antitrust laws.This Article argues for the development of a legislative presumption9 against DMCA liability that covers situations where a complainant is attempting to utilize the anti-circumvention10 or anti-trafficking provisions,11 or both, against a commercial competitor in relation to the manufacture and distribution of competing physical goods that incorporate copyrightable software code incidentally. Such an exception is necessary to ensure that future applications of the DMCA do not adversely impact the rules and policies underlying general commercial competition in markets for tangible goods. …
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