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Abstract

The recent coincidence of new technology and new legislation in the United States may have enhanced the ability of U.S. copyright owners to wield electronic protective measures to control the exploitation of their works. The legislation, which reinforces the technology, has led many to perceive and to deplore a resulting imbalance between copyright owners and the copyright-using public. Critics assert that the goals of copyright law have never been, and should not now become, to grant “control” over works of authorship. Instead, copyright should accord certain limited rights over some kinds of exploitations. Economic incentives to create may be needed to achieve the goal of public instruction, but those incentives should be as modest as possible. Copyright, the argument goes, has not historically covered every way of making money from, or of enjoying, a work of authorship; anything uncovered belongs in the public domain. Thus, when new technologies spawn new markets for copyrighted works, we should not simply assume that copyright owners ought to control those new markets. This article does not attempt to gauge future technology, whether protective or anarchic. Rather, it addresses a basic premise underlying many of the current critiques of copyright law in the wake of the 1998 U.S. Digital Millennium Copyright Act (DMCA): that the DMCA has vested copyright owners with a power of “control” that is fundamentally at odds with the U.S. copyright scheme articulated in the U.S. Constitution and implemented through 200 years of copyright legislation preceding the 1998 amendments. I disagree. Instead, I contend that the Constitution embodies the concept of author control. I acknowledge that the intervening statutory and case law history until 1976 often elevated claims for enhanced availability of works over copyright owner interest in exercising control over new modes of exploitation. The 1976 Act, however, implements a vision of “exclusive rights” to which control is integral. This does not mean that the control implicit in the author's “exclusive right” must be impregnable. Free uses and compulsory licenses remain appropriate and necessary. But control is still very much a part of the U.S. copyright system. The technological protections, further secured by legal protections, that may be required to preserve control, should also be seen as part of, rather than alien to, that system. In this article, I will explore the concept of control and the meaning of exclusive rights in the constitutional text, the pre-1976 Copyright Act regime, and the 1976 Act.

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