Patents give the DMCA needed teeth: salvaging copy protection in the post-Grokster era

The Digital Millennium Copyright Act (DMCA) was enacted to help stem the tide of damage caused by computerized copying, including the provision of protection against circumvention of technological measures used by copyright owners to protect their works. For all its promise, however, the DMCA is significantly limited in its ability to protect copyright owners' rights, particularly in the post-Grokster era. Enter patent law, in which there is no right to fair use. A patent owner has the right to prevent anyone from using the patented technology without permission. Coupled with the DMCA provisions regarding technological measures to prevent unauthorized copying, patent protection for copy protection technologies provides a new and superior way to prevent or at least reduce illegal piracy. In this way, it is unnecessary to rely on technology for copy protection, which can be and almost always is defeated/circumvented in one way or another. This new legal strategy has been used effectively in Macrovision v 321 Studios, which will be discussed in this article.