Clark D. Asay (Brigham Young Law) has posted “An Empirical Study of the DMCA’s Anti-Circumvention Provisions” on SSRN. Here is the abstract:
The DMCA has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is Section 1201. Among other things, Section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about Section 1201 empirically. While certain aspects of the broader DMCA have received empirical assessments, Section 1201 has not. Our understanding of Section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. But this anecdotal evidence is hardly a solid basis for ongoing discussions about how Section 1201 is performing and whether it needs revising. In this Article, we seek to address these and other issues.
To do so, we conducted a broad-based search of Westlaw to collect every issued opinion, whether reported or not, where a court purported to apply some part of Section 1201. We then reviewed these cases to glean as much useful information about Section 1201 as possible. This review led to a number of important and, in some cases, surprising results. First, Section 1201 opinions are a relative rarity. In the nearly quarter of a century since the DMCA’s enactment, we could find only a little over 200 opinions, with only about sixty of those being published. The average number of opinions during the DMCA’s existence has been around nine annually, which pales in comparison to other types of copyright cases. Second, despite the Second Circuit receiving much attention in anecdotal accountings of Section 1201, courts within it issue Section 1201 opinions infrequently. The Ninth Circuit is the dominant Section 1201 court, both in terms of citations to its opinions and overall number of opinions, and the Sixth and Eleventh Circuits both issue more Section 1201 opinions than the Second Circuit. This result stands in contrast to other types of copyright litigation, where the Second Circuit is a behemoth. Third, the most common subject matter in dispute in Section 1201 cases is computer software, followed distantly by audiovisual material such as movies. Music stands in last place, showing up in only a couple issued opinions. Debates at the time of the DMCA’s enactment were informed by widespread fears of copyright infringement relating to digital music and other types of digital content. Yet Section 1201 has resulted in but few litigations involving those subject matters. Fourth, suits and defaults against individuals happen frequently in the Section 1201 context, with courts often assessing large statutory damages against those individuals. As we discuss in the paper, this result raises important equity issues. Fifth, despite Section 1201 including a number of statutory exceptions, these exceptions basically never make their way into issued opinions. Fair use, too, only infrequently enters courts’ Section 1201 discussions. This means, effectively, that the primary way to escape Section 1201 liability is through administrative exceptions granted by the Library of Congress on a triennial basis. But as we shall see, this process has significant holes. Finally, plaintiffs disproportionately win Section 1201 cases. This result is somewhat bloated because of the frequency of defaults against individuals. Setting these aside, plaintiffs still enjoy tremendous success under Section 1201. However, when looking at opinions only outside of the Ninth Circuit, win rates become mostly even.
I conclude with several calls for DMCA reform. These include bolstering statutory exceptions and more closely tying Section 1201 to copyright infringement. Pursuing these reforms, I argue, will more faithfully align Section 1201 with its purported objectives.