Anti-circumvention misuse, or, how I learned to stop worrying and love the DMCA

The anti-circumvention provisions of the Digital Millennium Copyright Act grants owners of technologically protected content a new right of access entirely separate from the protection of content under copyright law. This new right of access, which some commentators have dubbed "paracopyright," has already been employed in litigation arguably calculated to suppress competition in uncopyrighted items related to the sale of copyrighted works. Such use of the anti-circumvention statute reaches well beyond the Congressional purpose of preventing unauthorized copying. In the past, such leveraging of patent rights or of copyright has been curbed by the equitable doctrine of misuse. An extension of the misuse doctrine to "paracopyright" may be the proper remedy to curtail overreaching uses of the anti-circumvention right.