block the technologies, arguing that they vio-lated copyright law. And in each case, thecourts rebuffed the industry’s efforts, holdingthat copyright law is designed to promote, notimpede, technological progress.The DMCA puts its thumb on the scales of justice on the side of copyright holders.Digital rights management technologies givecopyright holders complete control over every aspect of how their products are used. And theDMCA gives DRM technologies the force of law. As a result, when the next VCR or iPod isinvented, the content industry may use itspowers under the DMCA to refuse to allow itscontent to be used on the new device.If new inventions are prevented from evenentering the marketplace, there will never bean opportunity for a public debate abouttheir benefits. Most consumers will not evenknow what they are missing.
High-Tech Challenges forCopyright Law
Copyright law gives authors, artists, musi-cians, and other creators broad, exclusiverights to commercial exploitation of theircreations. With certain limitations, the copy-right holder is granted the exclusive right tomake and distribute copies of its works.Thus, copyright is designed to promote cul-tural progress by encouraging the produc-tion of new creative works.Congress has been mindful of the dangerthat copyright could itself become an obstacleto progress by unduly inhibiting the free flow of ideas. To forestall that threat, Congressplaced careful limits on the scope of creators’rights under the law. For example, facts cannotbe copyrighted, although a particular descrip-tion of facts can be. Copyrights are granted forlimited times, after which the material fallsinto the public domain. The first sale doctrinegives consumers the right to resell legitimately purchased copies of copyrighted material toothers. And the doctrine of fair use holds thatcertain kinds of innocuous copying—such asincluding a short excerpt in a book review orrecording a TV program for later viewing—arenot violations of copyright.Technological progress has thrown ques-tions about the limits of copyright into starkrelief. Digital technologies give ordinary con-sumers far greater abilities to make unauthor-ized copies than ever before. Sorting out whichof those copies are infringing under copyrightlaw has not been easy. Fortunately, the courtshave consistently risen to the challenge, devel-oping nuanced legal doctrines that protect therights of intellectual property holders withoutunduly burdening high-tech innovation.
Important recent intellectual property deci-sions demonstrate that the courts have strucka sensible balance that protects both innova-tion and intellectual property.
Copyrighted Software and “Clean Room”Design
One frequent subject of copyright litiga-tion is the practice of reverse engineering.Reverse engineering is disassembling a hard-ware or software product from another com-pany to find out how it works with the inten-tion of duplicating some or all of its functionsin another product. For decades high-techcompanies have sought to use intellectualproperty law to create proprietary technology platforms over which they would have com-plete control. Almost from its inception in the1970s, the computer industry has seen bitterlegal feuds in which entrenched incumbentshave sought to use copyright law to preventcompetitors from building products compati-ble with their systems. An early example of that fight was in themarket for “IBM-compatible” computers inthe 1980s. IBM created that market in 1981with the release of the IBM PC, its response tothe popular Apple II personal computer.Thanks to the strength of the IBM brand, itquickly became a leading business computer.Every IBM PC contained software knownas the Basic Input Output System (BIOS), andno IBM-compatible PC could function with-out a BIOS of its own. When other companiesbegan making unauthorized “clones” of thecomputers, most of them simply put a copy of
The courts havedeveloped nuanced legal doctrines that protect the rightsof intellectual property holderswithout unduly burdeninghigh-techinnovation.