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Hastings Communications and Entertainment Law Journal

Authors

Dave Hauser

Abstract

With the support of recent case law, statistics, and legal analysis, this note defends the Digital Millennium Copyright Act (DMCA) and its copyright protection mechanisms. The DMCA should be readily acknowledged as a push toward the privatization of copyright. Furthermore, the vast amount of criticism surrounding the DMCA wrongly shifts the focus away from what its provisions have accomplished.

This note addresses three main challenges to the DMCA's constitutionality: (1) that it exceeds the scope of Congressional authority as restrained by the Intellectual Property Clause, (2) that it oversteps the boundaries of First Amendment protection, and (3) that the doctrine of fair use is unconstitutionally intruded. This note concludes that privatization of copyright under the DMCA is a constitutionally sound response to technology's outpacing of the law. Additionally, society should encourage the privatization of copyright to allow for optimal progress of the digital media industry.

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