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2002 Stan. Tech. L. Rev. 1 (2002)

handle is hein.journals/stantlr2002 and id is 1 raw text is: _Stanford Technology Law Review Preserving the Aftermarket in Copyrighted Works: Adapting the First Sale Doctrine to the Emerging Technological Landscape JUSTIN GRAHAM' CITE AS 2002 STAN. TECH. L. REV. 1 I. INTRODUCTION Technological copyright protection in the form of access controls and copy controls has existed for decades, but the current epidemic of digital piracy only recently has occasioned the next step in copyright protection: anticircumvention laws. Against the backdrop of explosive parallel growth in digital and Internet technology, § 1201 of the Copyright Act (the anticircumvention arm) holds out antipodal promises of copyright utopia and dystopia. In an ideal world, legally enforceable access and copy controls will offer copyright proprietors adequate protection to make their works widely available at prices commensurate with the greatly reduced reproduction and distribution costs that digitization and the Internet afford. In the most feared of scenarios, a world in which information is totally commercialized, these same protections will be used to gouge consumers with exorbitant pay-per-view fees for access to copyrighted material as well as ideas, facts and other elements outside the scope of copyright protection, all to the impoverishment of the public treasury of ideas and information. With an eye to forestalling eventual dystopia, the U.S. Copyright Office has commissioned numerous studies and has widely solicited comments from copyright proprietors, legal experts and consumers' rights groups regarding possible exemptions to § 1201's ban on circumvention as well as amendments to the Copyright Act itself. In June 2000, the Copyright Office issued a notice of inquiry seeking comments in connection with the effects of Title I of the Digital Millennium Copyright Act (DMCA) on § 109 and 117 of the Act.' That notice inspired the undertaking of this paper, which considers amendments to § 109 in light of evolving technologies. A cursory review of § 109 and 117 reveals a common theme of ownership of copies of copyrighted works. U.S. copyright law embodies the insight that a short-term restraint on speech to protect the property interests of authors serves a vital speech -enhancing function in the long run. So premised, the copyright is a bundle of temporal incorporeal rights - or covenants that run with the work - that together give the copyright holder exclusive control over the market for his work. The exclusive rights to control the reproduction, adaptation, distribution, performance and display of a work for the duration of the copyright monopoly offer authors an important economic incentive to create and disseminate new works destined for the public *J.D., Duke University School of Law, 2001; B.A., University of California, Los Angeles, 1997; Senior Editor, Duke Law & Technology Review, 2000-1; Editor, Duke Environmental Law & Policy Forum, 1999-00; Legal Intern, U.S. Copyright Office, Summer 2000. Appreciation is extended to Robert Kasunic of the U.S. Copyright Office, who struggled diligently through my first draft. 1 See REPORT TO CONGRESS PURSUANT TO SECTION 104 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, 65 Fed. Reg. 35,673-74 (June 5,2000); 17 U.S.C. 109, 117 (2001). Copyright © 2002 Stmford Technology Law Review. A/I &ghs Reserved.

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