It would take many, many blog posts to fully articulate all the ways that modern copyright law threatens innovation. But one notable way is through Section 1201 of the copyright statute.
As discussed previously, Section 1201 is ostensibly supposed to minimize copyright infringement by making it its own offense to bypass the technical protective measures (TPMs) controlling access to a particular copy of a copyrighted work. (Sometimes these sorts of TPMs are referred to as DRM, or Digital Rights Management.) It is a fair question whether forbidding the bypass of TPMs is at all an effective approach to minimizing infringement, but it’s an even more important question to ask whether the portion of the copyright statute that forbids the bypassing of TPMs does so at the expense of other sections of the statute that specifically entitle people to make certain uses of copyrighted works.
The answer to this latter question is clearly no, and in fact Congress anticipated that it would be “no,” when it put into Section 1201 the requirement that the Copyright Office consider afresh, every three years, whether certain types of TPM bypassing should be deemed specifically permissible, notwithstanding Section 1201’s general prohibition against it. Unfortunately these triennial rulemakings are an extremely cumbersome, expensive, and ineffective way of protecting the non-infringing uses of copyrighted works the public is entitled to make. But the even bigger problem, and the one that I will focus on here, is that Section 1201’s prohibition against bypassing TPMs is increasingly standing in the way of not just non-infringing uses of copyrighted works but non-infringing uses of computing devices as a whole.
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