Eric Maher
In the aftermath of Napster and Pirate Bay’s shameless disregard for copyrights, DRM strategies are necessary to protect the incentives that encourage artists and programmers to create and publicly display their works. Yet the security risks associated with DRM levy a high cost on the public, on whose patronage the content creators depend. By restricting research and investigation into security risks in popular public technologies, U.S. copyright law, particularly under the anti-circumvention provisions of the Digital Millennium Copyright Act (“DMCA”), removed necessary safeguards for the public. The large influx of new consumer electronics demands exemption from the anti-circumvention provision of the DMCA for good faith research into security flaws and vulnerabilities in DRM. This Note discusses the current state of American copyright law under the Digital Millennium Copyright Act. The main thesis addresses whether the current rule-making procedure allowing for a triennial determination for exemptions to the DMCA is adequate to protect the best interests of the public. This Note focuses on the 2010 rule-making under the DMCA allowing for circumvention of access controls for good faith research in investigating and correcting security vulnerabilities in video games is the focal point. Creating a statutory exemption allowing for circumvention of a broader class of works for good faith research into software defects would better suit the interests of the general public, while also preserving the rights of copyright holders. This argument is followed by a discussion of the current risks that DRM software associated with audio-visual works poses for the general public and the benefits that a broader exemption would provide.