Intellectual Property, Copyright
Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on the particular audience profile consuming the relevant asset. Authors can most cost-effectively manage access through a mixture of these two tactics. Given the attributes of the parties competing over use of and access to expressive assets - authors and consumers - one should expect to observe sustained racing behavior. Such racing constitutes an undesirable exercise in inefficient wealth-redistribution, eroding the benefits of authors’ traditional ability to choose the lowest-cost, most effective mix of copyright enforcement and self-help. Although the proposition that copyright protection substitutes for self-help is not a new one, the precise ways in which it does so - as well as the inefficiencies associated with arms races - remains dramatically undertheorized. Legal rules should seek to minimize wasteful investment in protection and circumvention measures, but citing the Digital Millennium Copyright Act (DMCA) as the first institutional attempt to do so is misleading. For some time, courts and legislatures have addressed racing behavior over a variety of intangible assets - copyrightable expression, patented inventions, and unprotected information. This sample of institutional responses reveals an identifiable pattern of controlling technological arms races, one to which the DMCA largely conforms.
81 Indiana Law Journal 917 (2006).
Lee Kovarsky, A Technological Theory of the Arms Race, 81 Indiana Law Journal 917 (2006) (Copyright 2006 by the Trustees of Indiana University. Reprinted with permission).