Ethics and Information Technology 2: 201–209, 2000.

© 2001 Kluwer Academic Publishers. Printed in the Netherlands.

The Privatization of Information Policy

Niva Elkin-Koren
University of Haifa School of Law, Mount Carmel 31905, Haifa, Israel

Abstract. Copyright law in recent years has undergone a process of privatization. While weakening the enforce-
ability of conventional legislation (copyright rules), cyberspace facilitates alternative types of regulation such as
contracts and technical self-help measures. Regulation by the code is significantly different from traditional types
of public ordering (copyright law) and private ordering (contracts). Norms that technically regulate the use of
information are not merely self-made they are also self-enforced. Furthermore, the law was recruited to uphold
the superiority of such technical self-help measures. The recently adopted U.S. Digital Millenium Copyright Act
(DMCA) 1998 prohibits the development and use of technologies designed to circumvent copyright management
systems. The underlying assumption of this legislation is that in Cyberspace, the target of regulation should
become the technologies that affect users’ behavior rather than the behaviors themselves. This paper critically
examines this regulatory approach and highlights its shortcomings.

Key words: copyright, information policy, privatization

Introduction ing such systems against any competing technology.

In his 1994 seminal paper “The Economy of Ideas”
John Perry Barlow proclaimed the end of copyright
law. It is inevitable, he argued, that the current system
of intellectual property law would collapse. A law that
is based on the physical parameters in which intel-
lectual property protection has resided is incompatible
with the virtual environment of cyberspace. The chal-
lenges created by digital technology are simply too
great to be overcome by existing laws.
Copyright law, as we know it, may indeed come
to an end, yet for very different reasons than those
predicted by Barlow. Copyright law was never over-
thrown by digital technology. Instead it was recruited
to uphold the superiority of technologies that facil-
itate control over access and use of information.
Digital distribution extensively enhances the ability
of rightholders to control the use of their informa-
tion. Copyright management systems allow owners
to physically control and manage information and
to set the terms of use by means of contracts.
Consequently, the copyright landscape is displaced by
privately generated norms, the enforceability of which
is supported by legislation. The law has never really
abandoned the copyright scene in cyberspace. Indeed
the recently enacted U.S. Digital Millennium Copy-
right Act (DMCA)1 introduces novel rights related
to copyright management systems that are protect-
1 Digital Millennium Copyright Act, Pub. L. No. 105-304,
112 Stat. 2860 (1998) (“DMCA”).
The law prohibits the development and use of tech-
nologies designed to circumvent protection measures
employed by rightholders to control access to infor-
mation distributed digitally. The privileged status
awarded to copyright management systems under the
DMCA gives rightholders much stronger legal protec-
tion than the rights they hold under traditional copy-
right regime.2
Privatization by technology introduces a unique set
of issues. While both contracts and copyright manage-
ment systems are self-help means, contracts must be
enforced by courts, and may therefore be subject to
legal review. Courts could potentially mitigate any
negative effects of contracts on information policy by
applying existing legal doctrines on a case-by-case
basis.3
2 See Pamela Samuelson. The Copyright Grab. Wired, 4.01,
January 1996.
3 Mark A. Lemley. Symposium: Beyond Preemption: The
Law and Policy of Intellectual Property Licensing. California
Law Review, 87: 111–172, 1999; Lorin Brennan. The Public
Policy of Information Licensing. Houston Law Review, 36:
61–119, 1999; this approach was also adopted by the drafters
of UCITA as further discussed below. Elsewhere I argued,
however, that current contract law is ill-equipped for address-
ing the threats raised by such licensing strategies to the public
domain. See Niva Elkin-Koren. A Public Regarding Approach
to Contracting Copyrights. In Rochelle Dryfuss and Dianne
Zimmerman, editors, Expanding the Bounds of Intellectual
Property: Innovation Policy for the Knowledge Society. Oxford
University Press, forthcoming 2000.
202 N IVA E LKIN -KOREN
Right management systems are not subject to any
equivalent legal scrutiny. Quite the contrary. Protec-
tive technologies are self-enforced. Moreover, once
adopted by a rightholder, these technological self-
help means are no longer vulnerable to circumvent-
ing technologies because these technologies are now
prohibited by law.
This paper critically examines the regulatory
approach adopted by the DMCA. It argues that this
law overlooks the unique regulatory environment that
exists in cyberspace. Cyberspace is not merely a
web of interconnected communication networks in the
technical sense. It also constitutes a complex web
of norms that regulate behavior. This web of norms
is comprised of laws generated by territorial states;
contracts that rely on a state’s enforcement institu-
tions, netiquette and, finally, norms embodied in the
technology itself. The technical means that regulate
the use of information in cyberspace are not merely
self-made; they are also self-enforced. As such they
pose distinctive challenges to traditional regulatory
framework.
The privatization of copyright law
Copyright law in recent years has undergone a process
of privatization. The use of information is no longer
governed by legislation alone; it is also regulated by
private parties acting in the market.
Not long ago it was copyright alone that defined
the terms of use for information. Copyright law itself
is a property rule defined by the legislative bodies
of territorial states and applied by their enforcement
systems. It provides owners with the legal power to
control access to their works by granting them a set
of exclusive rights to use their copyrighted materials.4
The standard justification of copyright law perceives it
as a response to a market failure.5 This instrumental-
ist perspective views the purpose of law as providing
sufficient incentives to invest in the production of
content. The traditional copyright narrative assumes
that since authors cannot effectively control the use of
4 Section 106 of the 1976 Copyright Act defines the set of
exclusive rights granted to copyright owners under the law: the
exclusive right to reproduce, prepare derivative works, distrib-
ute copies to the public, publicly perform, and publicly display
the copyrighted work. See 17 U.S.C. § 106 (1976).
5 See Paul Goldstein. Copyright (2nd ed.). Little, Brown,
Boston, 1996, §§ 1.14–1.15, pp. 1:40–1:45. Other justifications
emphasize the natural rights of the author in her work reflecting
her personality or her entitlement to receive just reward for her
labor. See Kevin Garnett, Jonathan Rayner, Gillian Davies, edit-
ors. Copinger and Skone James on Copyright (14th ed., volume
one), Sweet & Maxwell, London, 1999, para. 2–04, p. 29.
their works, they would lack sufficient incentives to
create. While the narrative of the individual author is
still proclaimed, the modern reality of copyright law
is concerned with providing incentives to the content
industries.6
Copyright law secures incentives by granting copy-
right owners the legal right to exclude others from
using their materials. For instance, distributing copies
of a computer program by email may infringe upon
the exclusive rights of copyright owners to repro-
duce and publicly distribute the work. Copyright law
further affects access to information by defining the
privileges of users with respect to copyrighted works.
For instance, the use of copyrighted materials for the
purpose of criticism would usually be privileged under
fair use doctrine.
Cyberspace challenges traditional regulation by the
territorial state. Conventional enforcement by the state
is much less effective in cyberspace, where it is
always possible to cross geographical boundaries or
to disguise the physical identity of the infringer.7 The
enforcement of copyright law becomes particularly
difficult due to the low cost of copying and distribut-
ing information on the net. Tracking down copyright
violators and taking legal action becomes prohibitively
expensive.
Yet while weakening the enforceability of conven-
tional legislation (copyright rules), cyberspace facilit-
ates alternative types of regulation. The terms of use
for information in cyberspace are increasingly defined
by contracts. Content providers are increasingly rely-
ing on standard form contracts for expanding the rights
granted to them under copyright law. The pervasive
use of form contracts for distributing content is chan-
ging the terms of access to information. Contracts
are employed to restrict or prohibit altogether certain
uses of the work that are otherwise permissible under
copyright law.
For instance, a contractual provision may limit
the use of search results, which are factual infor-
mation that may not be copyrighted.8 Copyright law
currently offers limited protection to search engines.
The results returned by a search engine in response to
a user’s query are facts indicating the URLs of web
pages that match the user’s request. Facts, as such,
are not protected by copyright law and are purposely
left in the public domain. Metacrawlers, which enable
6 Debora J. Halbert. Intellectual Property in the Informa-
tion Age: The Politics of Expanding Ownership Rights. Quorum
Books, Westport, Connecticut, 1999.
7 I. Trotter Hardy. The Proper Legal Regime for ‘Cyber-
space’. University of Pittsburgh Law Review, 55: 993–1055,
1994.
8 Feist Publications v. Rural Tel. Services, 499 U.S. 340, 111
S.Ct. 1282, 113 L.Ed.2d 358 (1991).
 T HE P RIVATIZATION OF I NFORMATION P OLICY
users to submit their query to several search engines
simultaneously, threaten to reduce potential revenues
received by search engines from advertisers who pay
according to the number of hits on the page where the
banner is posted. Thus, search engines seek to restrict
the use of their output by Metacrawlers. Therefore,
many license agreements of search engines limit the
license to personal use and prohibit automated queries
and use for commercial purposes.9 Similarly, soft-
ware licenses may prohibit reverse engineering of the
computer program. Such provisions, if enforceable,
may restrict users from accessing unprotected parts
of the program or developing legitimate compatible
products.10
The pervasiveness of license agreements reflects
one form of privatization of information policy.
Indeed, contracts apply only to the parties of the agree-
ment. Yet when the content distributed is subject to
standard form contracts, the applicability of such terms
is universal. The technical ability to make access to
informational products contingent upon accepting the
terms of a license allows information providers to
govern the use of information by standardized terms
of use.
Enforcement itself is also privatized. New inter-
mediaries are becoming potential players in the
enforcement process. Online service providers may
often control a gateway to their system or services.
Consequently, providers may technically monitor the
content posted on their facility and detect copyright
infringements. This potential for monitoring made
online service providers a particularly attractive target
for rightholders seeking enforcement of their copy-
rights. Consequently, during the 1990’s online service
providers were increasingly exposed to legal liab-
ility for copyright infringement committed by their
users. Several courts in the United States held online
providers liable under copyright law, primarily under
the legal doctrines of “vicarious liability” or “contrib-
utory liability,” which hold liable a party who helps
someone else infringe copyright under certain circum-
stances.11 Several courts in Europe have reached
similar outcomes.12 The potential copyright liability
9 See, e.g., the terms of service of Google.com at www.
google.com/terms_of_service.html; Yahoo! (docs.yahoo.com/
info/terms – term 10); AltaVista (doc.altavista.com/legal/
termsofuse.html) (last visited on August 2000).
10 Sony Computer Entertainment v. Connectix Corp., 203
F.3d 596 (9th Cir. 2000).
11 Religious Technology Center v. Netcom Online Communi-
cation Services Inc, 907 F. Supp 1361 (N.D. Cal. 1995); Sega
Enterprises v. Maphia, 948 F. Supp. 923 (N.D.Cal 1996).
12 Scientology, President of District Court of Hague, 12
March 1996. See Koelman, Online Intermediary Liability, at
20–21.
203
imposes a heavy burden on providers, requiring them
to exercise legal discretion ascertaining whether any
particular content is infringing. To reduce liability
providers have exercised inspection policies to monitor
and supervise the use of content.
Recent legislation, which created “safe harbors”
for online service providers, further induces private
enforcement policies by intermediaries. Even though
the DMCA imposes no duty to monitor the service
for copyright infringements,13 it requires providers to
implement enforcement policies. Under safe harbor
provisions of the DMCA, online service providers14
are exempt from liability for infringing materials
posted by others on their system, provided that they
undertake some enforcement responsibilities.15 To be
eligible for the exemptions, an online service provider
must accommodate the technical measures adopted by
copyright owners, adapt a copyright policy that would
allow termination of users who are repeat infringers,
and handle infringement complaints by an appointed
Copyright Agent implementing a “Notice and Take-
Down Policy.”16
By implementing copyright enforcement policies,
online service providers are enrolled in protecting the
interests of rightholders. Thus enforcement functions,
once performed exclusively by courts and the police,
are increasingly assigned to online service providers.17
Aware of the downsides of delegating such discretion
and monitoring responsibilities, the U.S. Congress and
courts limited the liability of online service providers
for other types of harm caused by their users, such as
harm caused by defamatory statements.18
13 17 U.S.C.A. § 512(m) (“Nothing in this section shall
be construed to condition the applicability of subsections (a)
through (d) on – (1) a service provider monitoring its service or
affirmatively seeking facts indicating infringing activity, except
to the extent consistent with a standard technical measure
complying with the provisions of subsection (i);”).
14 Online Service Providers are broadly defined by the
DMCA to cover “(a) An entity offering the transmission, rout-
ing, or providing of connections for digital online communica-
tions between or among points specified by a user, of material
of the user’s choosing without modification as to the content
to the material as sent or received; and (b) Provider of online
services or network access, or the operator of facilities therefor”
17 U.S.C Section 512(k)(1) (1998).
15 17 U.S.C Section 512 (1998) (“Limitations on liability
relating to material online”).
16 17 U.S.C Sections 512(a)–(d), and (i) (1998).
17 See, for instance news.cnet.com/news/0-1007-200-
1995157.html?tag=st.ne.1.srchres.ni (reporting claims against
eBay for censoring the sale of products copyrighted by
Microsoft).
18 Communications Decency Act 1996, 47 U.S.C 230(c)(1)
(“no provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
204 N IVA E LKIN -KOREN
Finally, the technology itself is employed to set
limits on the use of information. Digital distribu-
tion allows information providers to define the terms
of use for informational products, in the code that
provides them. The computer programs, communi-
cation design and network architecture that consti-
tute cyberspace, define the potential choices of action
available to information users. The same system that
provides the service (such as the computer program
that facilitates access to a website) also defines the
terms of access and usage by preventing some uses,
such as copying, and permitting other uses, such as
browsing. The distribution system may allow access to
information only after payments have been made. A
computer program may prevent the creation of copies
or may disable unauthorized copies. Only uses that are
licensed by providers become technically available to
users.
This type of regulation (by the code) is signific-
antly different from traditional types of public order-
ing (copyright law) and private ordering (contracts).
Rather than defining undesirable behaviors by law, or
providing incentives for a desirable behavior, regula-
tion by the code makes it possible to prevent certain
behaviors while allowing others.19 Copyright law
prohibits the creation of copies without authorization
by the copyright owner. A copier will pay the owner
damages for the infringing copies she has made. In
by another information content provider”); Zeran v. AOL, 985 F.
Supp. 1124 (E.D.Va 1997), aff’d 129 F. 3d 327 (4th Cir. 1997);
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
19 See Lawrence Lessig. Symposium: Surveying Law and
Borders: The Zones of Cyberspace. Stanford Law Review, 48:
1403–1411, 1996, 1407-08; Joel R. Reidenberg. Lex Inform-
atica: The Formulation of Information Policy Rules Through
Technology. Texas Law Review, 76: 553–593, 1998. These
differences between the traditional system of law enforcement
and enforcement by the code raise conceptual issues regarding
the notions of enforcement and regulations. The literature on
technological self-enforcement, regards the code as a type of
regulation. A preliminary question is whether it is justified to
talk about regulation by the code and enforcement by the code
as part of the law. Economic theory may treat technology as
simply design or an architectural constraint because the notion
of regulation under economic analysis of law assumes a choice.
The underlying assumption of the economic approach to rules
is that rational agents are able to control their behavior. They
are motivated by their wish to maximize their utility. Rules are
sometimes necessary to correct an otherwise distorted set of
incentives (due to market failures), and provide individuals with
appropriate incentives so they will choose to act efficiently. If
a design simply prevents a certain behavior we can no longer
talk about regulations and incentives since there is no longer a
choice by individuals for the law to promote or prevent. See
Niva Elkin-Koren and Eli M. Salzberger. Law and Economics
in Cyberspace. International Review of Law and Economics, 19:
553–581, 1999.
cyberspace a computer program may simply prevent
the creation of uncompensated copies by employing
copyright management systems,20 encryption, digital
watermark or other types of technologies that restrict
access. Such means may substitute reliance on copy-
right laws.
Technology in cyberspace allows efficient enforce-
ment to a degree that never existed in the non-virtual
world. Enforcement by the code involves relatively
lower costs than enforcement by the legal system. It
avoids the costs of identifying, seizing and prosecuting
violators and the administrative costs of maintaining
the legal enforcement system, such as the police and
the courts. While the costs of self-enforcement by
the code are usually borne by users, the burden of
administrative costs involved in enforcing copyright
law via the legal system would be distributed among
taxpayers.21
Means for technological self-help also entail
perfect performance. Such means do not offer users
a choice of whether to go by the rule or to violate it.22
Terms of use implemented by technological means
are automatically enforced. The architecture simply
prevents any undesirable behavior from occurring in
the first place. Consequently, the level of enforce-
ment and its success do not depend on the extent to
which the public comprehends and internalizes the
rules.23 Compliance is particularly crucial for copy-
right law that creates abstract “fences” around virtual
informational goods (such as musical compositions
and television broadcasts), which often lack phys-
ical boundaries. Copyright law is therefore very much
dependent on compliance and self-restraint.24
20 See Tom W. Bell. Fair Use v. Fared Use: The Impact
of Automated Rights Management on Copyright’s Fair Use
Doctrine. North Carolina Law Review, 76: 557–619, 1998.
21 Niva Elkin-Koren and Eli M. Salzberger. Law and
Economics in Cyberspace. International Review of Law and
Economics, 19: 553–581, 1999.
22 Joel R. Reidenberg. Lex Informatica: The Formulation
of Information Policy Rules Through Technology. Texas Law
Review, 76: 553–593, 1998; Lawrence Lessig. Symposium:
Surveying Law and Borders: The Zones of Cyberspace. Stan-
ford Law Review, 48: 1403–1411, 1996.
23 Somewhat similar questions are addressed by social norms
economic literature, see in Cass R. Sunstein. Emerging Media
Technology and the First Amendment: The First Amendment in
Cyberspace. Yale Law Journal, 104: 1757–1804, 1995; Mark A.
Lemley. The Law and Economics of Internet Norms. Chicago-
Kent Law Review, 73: 1257–1294, 1998.
24 See Debora J. Halbert. Intellectual Property in the Infor-
mation Age: The Politics of Expanding Ownership Rights.
Quorum Books, Westport, Connecticut, 1999, pp. 93–94
(discussing the significance of copyright narrative for establish-
ing a public basis for compliance, self-restraint and enforce-
ment).
 T HE P RIVATIZATION OF I NFORMATION P OLICY
To the extent self-enforcement is perfect, it may
reduce the price of information products. Consider, for
instance, the price of copyrighted works. The price
has to cover not only the large investment in creating
and marketing the work, but also the cost of enforce-
ment and the expected loss from failure to enforce the
rights of the copyright holder. If the expected market
for a music publisher is substantially reduced due
to the creation of unauthorized copies, the publisher
will raise the price per copy in order to cover its
expenses. If enforcement by the code prevents the
creation of unauthorized copies, it will reduce the price
of copyrighted works.25
What are the implications of self-enforcing means
for the legislators of territorial states? Should this
privatization leave the legislators out of the regulatory
picture? The law is deeply involved in the enforce-
ment of contracts. For a contract to be enforceable
it must comply with (minimal) legal requirements.
Thus courts will not enforce an illegal contract or a
contract that jeopardizes public welfare. Regulation by
the code seems, however, free from such legal scru-
tiny since it is not dependent on a state’s enforcement
procedures. Self-help technological means would not
normally provide an opportunity for legal review. They
do not require any law enforcement institutions such as
courts and the legal system. They are self-executed and
self-implemented. Since terms of use are automatically
enforced, they are not subject to legal review.
Nevertheless, regulators did address self-help tech-
nological means in the DMCA. The underlying
rationale of this legislation was that enforcement by
technology can be violated by technology of counter
coding. The development of exclusion measures is
likely to encourage users to develop counter code-
breaking and hacking tools. For every protection meas-
ure there is always a counter-technology to crack it.
Therefore the efficacy of technological protection of
copyrighted works depends on the absence of circum-
vention means.
After reviewing the legal approach toward self-help
technologies reflected in the DMCA, I will discuss the
appropriate scope of regulating self-help technological
means.
Regulating technologies: the anti-circumvention
legislation
In October 1998 the U.S. Congress passed the Digital
Millennium Copyright Act. This legislation sought to
25 See Tom W. Bell. Fair Use v. Fared Use: The Impact
of Automated Rights Management on Copyright’s Fair Use
Doctrine. North Carolina Law Review, 76: 557–619, 1998.
205
implement the anti-circumvention provisions in the
1996 Geneva Internet Treaties. The DMCA prohib-
its the circumvention as well as manufacturing and
distribution of technologies designed to circumvent
protection measures employed by copyright righthold-
ers.26 The underlying assumption of this legislation
is that in cyberspace, the target of regulation should
become the technologies that affect users’ behavior
rather than the behaviors themselves.
Indeed, considering the significant market power of
the American Internet industry, the anti-circumvention
provisions are likely to become prevalent and shape the
online legal regime. Even if foreign legislators fail to
adopt the new law, industry is likely to comply with the
U.S. legal requirements to minimize its legal exposure.
Title I of the DMCA amends U.S. copyright law
by adding section 1201, which addresses circumven-
tion of copyright protection systems. This section
prohibits unauthorized access by circumvention and
the manufacturing and distribution of technological
means designed to circumvent either access control or
copyright control. It provides for civil remedies and in
addition imposes criminal penalties for willful viola-
tions committed for commercial advantage or private
financial gain.
In essence the law prohibits the following:
A. Gaining unauthorized access to works by cir-
cumventing27 a technological protection meas-
ure put by the copyright owner.28
B. The manufacturing or making available “tech-
nology, product, service, device, component”
26 This approach is also reflected in the World Intellec-
tual Property Organization (WIPO) Copyright Treaty and the
WIPO Performances and Phonograms Treaty, adopted at the
WIPO Diplomatic Conference in December 1996. Under the
treaty contracting parties are required to provide legal remedies
against circumventing protection measures and against tamper-
ing with copyright management information.
27 Circumventing a technological measure is defined by the
law as “to descramble a scrambled work, to decrypt an encryp-
ted work, or otherwise to avoid, bypass, remove, deactivate,
or impair a technological measure, without the authority of the
copyright owner;” 17 U.S.C. Section 1201(a)(3)(A)(1998).
28 “No person shall circumvent a technological measure that
effectively controls access to a work protected under this title”.
Indeed this provision will only become effective two years after
enactment during which Librarian of Congress is to conduct a
rulemaking proceeding to determine the appropriate exceptions
to the prohibitions. However, other provisions that prohibit the
manufacturing and making available of technologies that are
used to defeat technological measures controlling access, and
other rights of a copyright owner, took immediate effect. 17
U.S.C. Section 1201(a)(1)(1998).
206 N IVA E LKIN -KOREN
that is used to defeat technological measures’29
controlling access.30
C. The manufacturing or making available the
means of circumventing protection afforded by
technological measures that effectively protect
the rights of a copyright owner.31
The limitation on manufacturing (or otherwise
making available) circumventing devices applies only
to devices that are “primarily designed or produced for
the purpose of circumventing”; have only a “limited
commercially significant purpose or use other than
to circumvent”; or are marketed “for use in circum-
venting”. The DMCA further prohibits tampering with
Copyright Management Information (CMI).32 This
includes the terms and conditions for using the work.33
The law also covers circumvention under circum-
stances that do not otherwise constitute a copyright
infringement. This would be the case, for instance,
when a particular use of the work is privileged
under the fair use doctrine.34 A defense to a copy-
right infringement is not a defense to the prohib-
ition established under the DMCA. This view was
recently adopted by the court in one of the first cases
which applied the anti-circumvention legislation. This
case involved the distribution of a computer program
designed to decrypt a DVD encryption system CSS
(Content Scrambling System). The DeCSS allowed
a non-CSS-Compliant DVD player to play copies
with DVD content. In Universal City Studios, Inc v.
Reimerdes, an action filed by film distributors against
DeCSS distributors, the court found the defendants
liable under the anti-circumvention provisions. Judge
Kaplan rejected the defendants’ claim that their actions
constitute fair use and therefore could not be illegal
under the anti-circumvention laws. While stating that
this argument could be correct in some cases, it held
that Congress intentionally left anti-circumvention
outside of the reach of fair use doctrine.35
The law recognizes a limited number of exemp-
tions, narrowly defined, in which circumvention would
29 A technological measure that effectively controls access to
a work is defined as a measure that “in the ordinary course of its
operation, requires the application of information, or a process
or a treatment, with the authority of the copyright owner, to gain
access to the work.” 17 U.S.C. Section 1201(a)(3)(B)(1998).
30 17 U.S.C. Section 1201(a)(2) (1998).
31 17 U.S.C. Section 1201(b)(A) (1998).
32 This includes providing false copyright management infor-
mation and removing or altering CMI. 17 U.S.C. Section 1202
(a)(b)(1998).
33 17 U.S.C. Section 1202 (1998).
34 17 U.S.C Section 107.
35 Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294
(S.D.N.Y. 2000).
be allowed when it is done for a legitimate cause.36
The broad prohibition and limited scope of exceptions
create a comprehensive all-encompassing protection to
rightholders.
The DMCA sought to adopt copyright law to the
novel needs of the digital era. The anti-circumvention
legislation protects the right to control access to copy-
righted works, which some believe should be an
integral part of the copyright in the digital era.37
Digital distribution is no longer dependent on material
copies but rather on constant availability of works in
a non-material form. The law should therefore award
rightholders with the right to control the manner in
which the work is accessed. Nevertheless, in contrast
to the classic exclusive rights, the scope of which is
explicitly defined by legislation, the so-called “right
to control access” is a by-product of regulating tech-
nologies. Even if one agrees that copyright owners
should be accorded the right to control access, such
right could have been simply added to the bundle of
rights defined by law. Yet, the DMCA went further
and prohibited any act of circumvention for acquiring
access, and restricted the manufacturing and distribu-
tion of technologies that enable it.
Others believe the DMCA is designed to serve
an economic purpose. The economic rationale for
the DMCA anti-circumvention provisions seems pretty
simple. The development of exclusion measures is
likely to encourage users to develop counter code-
breaking and hacking tools. This in turn will lead to
sophistication of the exclusion tools and a continuous
technology race between the two sorts of devices. Such
a race increases the cost of employing protection meas-
ures by requiring rightholders to invest in preserving
their technological superiority. This may divert funds
that might otherwise be invested in more productive
directions; in other words, so it is argued, this infertile
36 The exceptions include reverse engineering. 17 U.S.C.
Section 1201(f). Reverse engineering was recognized by U.S.
courts as “fair use” and therefore does not constitute a copyright
infringement even if unauthorized by the copyright owner. Note,
however, that the exception defined by the law is very limited
and does not cover all types of circumvention that were found by
the courts as fair use. Other exceptions include an exception for
law enforcement and intelligence activities, encryption research
(if it satisfies a fairly strict requirements defined by the law),
security testing, the manufacture of circumvention measures for
the sole purpose of supervising the use of the internet by minors,
protection against invasion of privacy, nonprofit libraries and
educational institutions for the purpose of determining whether
to acquire a work.
37 Jane Ginsburg. From Having Copies to Experiencing
Works: the development of An Access Right in U.S. Copyright
Law. In Hugh Hansen, editor, U.S. Intellectual Property: Law
and Policy. Sweet & Maxwell (forthcoming 2000).
 T HE P RIVATIZATION OF I NFORMATION P OLICY
race is sheer waste. It may require central intervention,
which is very different from government intervention
in the form of copyright law. Central legislation is
no longer necessary to create copyright, namely to
provide the legal means of exclusion to make possible
the production of information products by private
firms. Central intervention may now be necessary to
stop the wasteful technological race between exclu-
sion tools and their counter technologies.38 In other
words, intervention by regulation might be needed as
a second-degree enforcement control.39
The DMCA thus demonstrates a new regulatory
strategy in information policy. Rather than directly
regulating the behavior of users (prohibiting unau-
thorized copying of a copyrighted work) the DMCA
regulates technologies. It seeks to govern the use of
content by directly regulating the technologies that
enable access and use of informational products. Regu-
lation thus focuses on the technologies that affect
users’ behavior rather than the behaviors themselves.
A major concern in regulating technology is
the risk of throwing out the proverbial baby with
the bathwater. Regulating technology may impede,
rather than induce, technological development.40 The
DMCA’s regulatory approach overlooks the signific-
ance of a technology race and competition between
protective systems and hacking technologies as the
driving forces of technological innovation. In fact,
development of circumventing means to bypass,
remove or disable other technological measures is an
integral part of the hacker culture that contributed to
the development of cyberspace. Investments in devel-
oping measures and anti-measures may contribute to
technological development, in that some inventions
sometimes have other uses. The purpose of intellectual
property laws is to promote the development of new
technologies. Regulating technological development
may impair this objective.
But the danger reflected in such regulation goes
beyond its impact on technological development. A
38 Kenneth. W. Dam. Self-help in the Digital Jungle. The
Journal of Legal Studies, 28: 393–412, 1999 (arguing that it
is inevitable that counter technologies which defeat self-help
system will arise. Dam believes that such a race requires govern-
ment intervention in prohibiting circumventing means, though
suggesting that such regulation should carefully drafted to avoid
hindering technological development altogether).
39 Niva Elkin-Koren and Eli M. Salzberger. Law and
Economics in Cyberspace. International Review of Law and
Economics, 19: 553–581, 1999.
40 See Pamela Samueslon. Intellectual Property and the
Digital Economy: Why the Anti-Circumvention Regulations
Need to be Revised. Berkeley Technology Law Journal, 14:
519–566, 1999 (arguing that the anti-circumvention regulation
may obstruct the progress of technology).
207
more significant concern raised by the DMCA’s anti-
circumvention provisions has to do with the question
of how, and by whom, terms of access to information
are defined in our society.
Letting the cats watch over the cream
The DMCA allocates decision-making power regard-
ing the most important resource in our information
society in private hands. The law provides a privileged
status to restrictions on access to information that were
defined unilaterally by information providers. Restric-
tions enforced by copyright management systems are
not subject to legal review.
It is the very availability of protective technolo-
gies that gives copyright owners such power to regu-
late the use of information. Yet were it not for the
DMCA, those who are technologically skilled could
resist such restrictions. If it were legal to develop
and distribute circumventing technologies, the market
effect could mitigate the power of copyright owners. A
rule that prevents the development of circumventing
means accords a privileged status to such self-made
regulation.
Suppose that a new technology allows landowners
to prevent an airplane from flying above their land and
ensure that only authorized airplanes are able to pass.
Some landowners may use the new device to collect
fees from airplanes that fly over their plot. Imagine
that air carriers have managed to develop a device that
would circumvent the virtual fee-collecting air-gate.
So, the landlords develop more sophisticated air-gates
and correspondingly air carriers develop circumvent-
ing devices. Then the government decides to prohibit
the manufacture and use of circumventing devices by
air carriers. The property rule that defines the propriet-
ary rights of landowners is intact. It still provides that
ownership in land, in and of itself, does not extend to
the right of passage in the sky. Yet, in fact, landowners
are now able to collect fees for every such use.
The special immunity provided by the law to copy-
right management systems suggests that such systems
will increasingly displace copyright law in governing
the use of information. What are the consequences of
replacing the regulatory regime of copyright law by
terms of access to information generated by informa-
tion providers?
The privatization of information policy under the
patronage of law, not only privatizes the rule-making,
but it is also likely to privatize the information itself.
Once a copyright owner uses a technology to restrict
access to his or her materials, it becomes a violation
of the law to attempt to bypass the protective meas-
ures. This legal outcome remains the same even when
208 N IVA E LKIN -KOREN
a user who circumvented the system was entitled to
access the materials under copyright law. The list of
exceptions defined by the law does not cover all legi-
timate uses of information. However, unless permitted
under one of the exceptions, any access to a work by
circumvention becomes illegal.
If terms of access to information are exclusively
defined by rightholders, it is expected that more infor-
mation will be subject to private control. Informa-
tion providers are likely to use technology to maxi-
mize their control over the use of their informational
products, including those currently unprotected under
copyright law. Copyright law leaves out a pool of infor-
mation that is publicly accessible, immune from the
power of any private party to exclude its use. Informa-
tion in the public domain, under a copyright regime, is
therefore legally accessible in the sense that its use is
privileged to all.
The privatization of this public domain may
entail some negative effects for creation and inno-
vation. Information is often developed increment-
ally and therefore widespread access to informa-
tion may increase the chances of further innovation.
Existing cultural artifacts build on the works of the
past.41 Exposure to current innovations may stimu-
late the creation of new technological developments.
So extensive use of information may increase the
likelihood of further innovation. A pay-per-access
regime, in which every access to information is fared,
may impede innovation. That is because innovative
developments are not necessarily tied to any finan-
cial resources and may depend instead on intellectual
capability, circumstances, level of cooperation and
luck.42
Some level of free access to information is further-
more essential for democracy. Information has social
and political significance. It affects the shaping of
preferences and identities and may be essential for
individuals to participate in political deliberation. If we
believe that democracy is not simply about securing
equal voting rights but also requires equal access to
the political process in a more substantial way, then the
tenets of democracy must also apply to these will form-
ation processes. This requires reasonable access to
information and some freedom to transform and shape
informational works so that they reflect one’s political
agenda, belief system and identity. Public access to
information, freed from any veto power of any private
41 William M. Lands and Richard A. Posner. An Economic
Analysis of Copyright Law. Journal of Legal Studies, 18: 325–
363, 1989, p. 332.
42 See Jessica Litman. The Public Domain. Emory Law
Journal, 39: 965–1023, 1990, fn 264–265 and accompanying
text (arguing that authorship processes may be inadvertent).
party, is currently available for information in the
public domain. It is unlikely that information providers
will preserve such a level of privileged usage.
The new legal regime under the DMCA protects
the claim of rightholders to maximize their profits and
utilize every economic potential related to their work.
If copyright law had once created islands of infor-
mation that were subject to the sovereign control of
copyright owners, these islands are now turning into a
continent leaving little available space in between. The
totality of restrictions on access is what makes such a
regime risky from a democratic perspective.
Where do we go from here?
Information policy that is configured by copyright
owners, enforced by technology and backed by anti-
circumvention rules could not sufficiently protect the
public interest. The DMCA has distorted the long
tradition of balancing the economic interests of owners
and public access to information. I do not intend to
claim here that copyright law necessarily reflects the
right balance under all circumstances. Indeed, it seems
that digital distribution would require us to draw a
different balance – to better accommodate the different
information environment.
Copyright law, however, provided a framework for
balancing in the old regime. It had some legal mech-
anisms for introducing public considerations into the
rules that govern the use of information, such as the
idea/expression distinction, the fair use defense and
other limitations on the owner’s exclusive rights. Such
mechanisms are completely absent under the new legal
regime.
Powerful technologies of exclusion seem to intro-
duce a greater threat to the continuous existence of the
public domain. If the greatest threat in our information
age is blocking – withholding information and restrict-
ing access – we must rethink our rights paradigm. The
challenge for regulators is therefore to secure uncon-
strained access to information in the technologically
regulated environment.
It is one thing to keep your information secret
or physically (and technologically) guard it against
unauthorized use. It is quite another to ask that the
law would enforce such self-help means. When the
(public) legal system is asked to enforce norms created
by private parties (such as in contracts), these norms
would normally be subject to scrutiny. Courts could
make certain that the public enforcement system is
not abused to achieve goals that conflict with public
policy.
Regulation by technology introduces a harder case.
Under the traditional copyright regime, information
 T HE P RIVATIZATION OF I NFORMATION P OLICY
in the public domain was only legally accessible, in
the sense that its use is privileged to all. It was not,
however, physically accessible. Copyright law never
imposed a legal obligation to provide access. Protec-
tive technologies require us to rethink the boundaries
of access rights. How to secure access without forcing
rightholders to provide access to content? To what
extent should the law intervene in securing access?
To what extent should limits on access to information
be permissible? The real challenge for regulators is to
define not merely new access rights of owners but also
access privileges of users.
Acknowledgement
I am indebted to Matan Goldblatt for his useful and
thoughtful research assistance.
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