[1]See, e.g., Mike Yamamoto and Jeff Pelline, Battle lines drawn for control of Net, NEWS.COM, May 10, 1999, (visited January 27, 2000) <http://www.news.com/SpecialFeatures/0,5,36312,00.html>; Sandeep Junnarkar, Can Lycos compete without USA Networks?, NEWS.COM, May 10, 1999 (visited January 27, 2000) <http://www.news.com/News/Item/0,4,36334,00.html>.

[2]See Yamamoto & Pelline, supra note 1.

[3]See, e.g., RIAA threatens to sue Lycos over MP3, NEWS.COM, March 25, 1999 (visited January 27, 2000) <http://www.news.com/News/Item/0,4,34250,00.html>.

[4]Such devices have typically been the bread and butter of successful Internet technology. Previous killer apps such as email, ftp, and web browsers essentially function as low-cost, high quality means to receive and access content from others. The PalmPilot and other mobile desktop apps promise the same revolutionary gain for technology users.

[5]One may be able to picture this clash better through the metaphorical imagery of Manuel Castells' information cities. See FRANK WEBSTER, THEORIESOF THE INFORMATION SOCIETY 200-202 (Routledge 1995) [hereinafter WEBSTER]. While technologists and content providers are not all located in distinct geographically cities, one can imagine Los Angeles representing content providers and Silicon Valley representing technologists, each linked to the other via proximity and economy, yet having drastically divergent cultures and political manifestations.

[6]Digital Millennium Copyright Act [hereinafter DMCA], Pub. L. No. 105-304, 112 Stat. 2860 (1998) § 1201 [hereinafter 1201].

[7]For a detailed analysis of this political battle, see Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 BERKELEY TECH L. J. 519 (1999) [hereinafter Samuelson].

[8]See 17 U.S.C. § 1201(a)-(b) (1999).

[9]Seeid. § 1201(d)-(j).

[10]Seeid. § 1201(a)(2), (b)(1).

[11]The main sponsor of the DMCA was Rep. Coble. Other sponsors included Sen. Hatch and Reps. Hyde, Frank, Conyers, Bono, McCollum, Berman, Paxon, and Pickering.

[12]See Samuelson, supra note 7, at 521-22.

[13]SeePresidential hopefuls mine Silicon Valley, NEWS.COM, May 3, 1999, (visited December 22,1999) <http://www.news.com/News/Item/0-1005-200-341992.html>.

[14]See infra notes 34-38 and accompanying text.

[15]See 17 U.S.C. § 1201(a)(1)(A). To circumvent a TPM means to "descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner . . . ." Id. § 1201(a)(3)(A). A TPM effectively controls access to a work if it "in the ordinary course of operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." Id. § 1201(a)(3)(B). The 1201(a)(1)(A) prohibition will not take effect for two years from enactment, due to the rule-making proceedings in 1201(a)(1)(B)-(D), but for purposes of this paper, I will ignore the effect of the moratorium except as an indication of rationale.

[16]See 17 U.S.C. § 1201(a)(2) (prohibiting the manufacture, import, offer to public, provision, or otherwise trafficking of circumvention technology that undermines TPMs that effectively control access to copyrighted works); Id. § 1201 (b)(1) (prohibiting similar activities regarding circumvention technology that effectively protects any right of a copyright owner). Section 1201's ban applies if the anti-circumvention device is "primarily designed or produced for the purpose of circumventing," or "has only limited commercially significant purpose or use other than to circumvent," or "is marketed by [a manufacturer or an associate known to the manufacturer] for use in circumventing" TPMs or the protection they offer. 17 U.S.C. § 1201(a)(2)(A)-(C), (b)(1)(A)-(C).

[17]See U.S. DEP'TOF COMMERCE INFO. INFRASTRUCTURETASK FORCE, INTELLECTUAL PROPERTYAND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OFTHE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 230 (1995).

[18]See WILLIAM J. CLINTON & ALBERT GORE, JR., A FRAMEWORKFOR GLOBAL ELECTRONIC COMMERCE 9 (1997), (visited December 22, 1999) <http://www.iitf.nist.gov/eleccomm/ecomm.htm>.

[19]See Samuelson, supra note 7, at 521 (citing U.S. GOV'T WORKING GROUPON ELEC. COMMERCE, FIRST ANNUAL REPORT (1998)). The anti-circumvention provisions were supposedly included as an additional element of compliance with the World Intellectual Property Organization Copyright Treaty. However, it appears as if such provisions are vastly excessive, given the WIPO "adequate protection" standards for such laws. See id. at 530-31.

[20]While the Senate report claims legislation prohibiting circumvention devices is not unprecedented, previous legislation was limited to very narrow circumstances in particular industries. See 105 S. Rpt. 190 (citing 17 U.S.C. § 1002(c)) (prohibiting devices whose primarily purpose is to circumvent digital audio Serial Copy Management Systems); 47 U.S.C. § 605(e)(4) (prohibiting devices that primarily assist decryption of satellite signals); North American Free Trade Agreement, Dec. 8, 1992, Art. 1707, 32 I.L.M. 605 (1993) (same).

[21]See 17 U.S.C. § 106(4)-(6) (1999).

[22]See, e.g., Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 716 (2nd Cir. 1992) (holding state trade secret law is not pre-empted by 17 U.S.C. § 301 because it has the "extra elements" of improper access and improper disclosure of information). However, query now whether, after 1201, the Copyright Act does not provide de facto preemption of state trade secret law under the Second Circuit test. For example, circumventing a TPM would almost certainly be seen as "improper means" under the Uniform Trade Secrets Act. See Uniform Trade Secrets Act, 14 U.L.A. 433, 437-38 (1990). Or if a former employee brought an encrypted software program with him to a new job, accessing such a work would be both a breach of his confidential duty to his former employer and a circumvention of the encryption without consent of the owner. See id.; 17 U.S.C. § 1201(a)(1). Even though Section 301 explicitly limits preemption to rights analogous to Section 106 of the Copyright Act, these actions are qualitatively similar to 1201 violations. Compare 17 U.S.C. § 301, with Computer Assocs., 982 F.2d at 716-17.

[23]See 17 U.S.C. § 106 (defining rights of copyright owners).

[24]See 17 U.S.C. § 109; Quality King Distributors, Inc. v. L'ANZA Research Int'l, Inc., 523 U.S. 135 (1997) (prohibiting copyright owner from controlling secondary sales of copyrighted shampoo bottles from foreign countries). But see Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988).

[25]See Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 CALIF. L. REV. 111, 151-58 (1999).

[26]Section 1201's expansion of copyright beyond Section 106 is similar to the recent effort to expand rights using contract law via shrink-wrap and click-wrap licensing. See generally ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); Symposium, Intellectual Property and Contract Law in the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Information and Electronic Commerce, 13 BERKELEY TECH. L.J. 809 (1998).

[27]See 17 U.S.C. § 106.

[28]See, e.g., 17 U.S.C. § 107 (Factor One - transforming vs. superceding; Factor Three - amount of work taken); Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991); Baker v. Selden, 101 U.S. 99 (1880).

[29]See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984). While Sony dealt with the use of a VCR to record TV programs, the analysis focused mostly on whether using VCRs was fair use or not, not whether the method VCRs used to copy was legal or not. See also Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) (also discussing legality of use but not means).

[30]This kind of "tying" has historically been illegal under the anti-trust laws; therefore we should be even more skeptical of allowing it as an extension of intellectual property monopolies.

[31]For the case in favor of copyright owners enforcing per use charges versus one-time sales for digital works, see generally Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. REV. 557 (1998).

[32]See U.S. CONST., art. I, § 8, cl. 8.

[33]For example, reverse engineering in the software industry. See Sega Enters. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).

[34]See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 285-302 (Peter Laslett ed., 2d ed. 1967); See also Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).

[35]See U.S. CONST. art. I, § 8, cl. 8.

[36]For example, labor improvements to land you own do not give you a stronger property right in that land. Nor do we give stronger patent rights to those who utilize their patents more economically over those who do not.

[37]For example, an inventor of a life-saving drug could patent the drug and then deny access to it unless patients paid exorbitant fees, disregarding the social benefit of saving the lives of those who cannot afford the price.

[38]"Thus, from the outset, federal patent law has been about the difficult business 'of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.' " Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 148 (1989) (quoting 13 WRITINGS OF THOMAS JEFFERSON 335 (Memorial ed. 1904)).

[39]See Sherman Act, 15 U.S.C. § 1, 2 (1998).

0]See MODEL PENAL CODE AND COMMENTARIES (American Law Institute) (1985) , § 1.02(1) ("The general purpose of the provisions governing the definition of offenses are: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens to inflict substantial harm to individual or public interests;"); New York Penal Law § 1.05 (1998) ("The general purposes of the provisions in this chapter are: . . . 6. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized . . . when required in the interests of public protection.").

[41]See SANFORD H. KADISHAND STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 115 (6TH ED. ASPEN 1997).

[42]See id.

[43]See id.

[44]JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 2.03 [B] (Mathew Bender 2nd ed.) (quoting Jeremy Bentham, Principles of Penal Law, in J. Bentham's WORKS 396, 402 (J. Bowring ed. 1843)).

[45]Id.

[46]See Michael S. Moore, LAW AND PSYCHIATRY 238-43 (1984) (discussing net social gain as a necessary prerequisite for criminal punishment).

[47]See, e.g., Mannillo v. Gorski, 241 A.2d 276, 282 (N.J. Super. Ct. Ch. Div. 1968) (holding that encroachment of fence onto neighbor's property, even if only by 15 inches, entitled neighbor to demand removal under law). But see, e.g., Reese v. Borghi, 216 Cal. App. 2d 324 (1963) (holding that when "strictly necessary" to allow public access to land otherwise inaccessible, law requires mandatory easement over private property). While necessity can function as a limitation on private property rights, it is extremely disfavored and requires the court to find that there are absolutely no other reasonable avenues of access available to the public. See id.

[48]See Manillo at 282 (holding that infringement of property right, even unintentionally, mandated injunctive relief). Some would argue that necessary is also a circumstantial defense to trespass. However, necessity defenses are similar to fair use copyright defenses in the sense that they balance the need for public versus private use of a resource and the proper allocation of its value to all. Criminal law, on the other hand, focuses on the social benefit of a specific actor's behavior in light of the unique circumstances of that behavior, distinguishing one actor's culpability from another's.

[49]Those that do are usually either minor "taxable" offenses such as speeding or offenses where the social harm is so great that deterrence must come at any cost. See, e.g., MODEL PENAL CODE § 213.1(1)(d) (statutory rape).

[50]See The WIPO Copyright Treaties Implementation Act: Hearing on H.R. 2281 Before the Subcomm. on Telecomm., Trade, and Consumer Protection of the House Comm. on Commerce, 105th Cong. 37 (1998) (Statement of Robert W. Holleyman, President and CEO, Business Software Alliance)[hereinafter Holleyman testimony] (asserting that U.S. implementation of the WIPO treaties would "improve our ability to fight back against those who would steal computer programs.").

[51]The Copyright Act does have criminal provisions for willful and for-profit infringement. See 17 U.S.C. § 506 (1999). The criminal theory here is one of deterring social harm; the willful actor knows his act is infringing and without significant social benefit. Therefore the penalty is not based on loss of value but disregard for the law.

[52]Except for willful infringement treble damages. See 35 U.S.C. § 284 (1999).

[53]Except for a very narrow experimental use exception. See Elizabeth v. Pavement Co., 97 U.S. 126 (1877). Yet query whether the experimental use exception is really a criminal law rationale for socially beneficial use in disguise.

[54]See 35 U.S.C. § 271 (1999).

[55]See, e.g., MODEL PENAL CODE § 221 (defining burglary as entering a building at night with intent to commit a felony); Cal. Penal Code § 244.5 (West 1999) (specifically outlawing assaults upon police officers or firefighters with a stun gun or taser).

[56]See Hardin, supra note 34 (The Tragedy of the Commons).

[57]For purposes of this example, assume the Mona Lisa is still protected by copyright and not in the public domain.

[58]For instance, private collectors are often willing to purchase famous paintings for their home galleries for more money than public museums. Therefore, the number of viewers is a less significant indicator of value in comparison to the number of copies of the work available.

[59]Unlike copyright infringement, where damages are estimated based on the loss of a work's value, or the fair use defense where the market for the copyrighted work is taken into account, 1201 violations pay no attention to infringement damages or market effect. Compare 17 U.S.C. § 1201 with Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 566 (1985).

[60]See, e.g., 17 U.S.C. § 1201(d)-(j); Samuelson, supra note 7, at *543-45 (suggesting many beneficial actions that could violate 1201). See also Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (implying that dissemination of unprotectable phone numbers was an appropriate displacement of valuable information under the copyright laws).

[61] 17 U.S.C. § 1201(a)(1)(A).

[62]Or as Professor Benkler described the provisions of 1201, "their primary institutional attribute is prohibiting the use and communication of information." See Yochai Benkler, Free As the Air To Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 413 (1999) (challenging 1201 on constitutional grounds).

[63] 17 U.S.C. § 106.

[64]Also, compare the focus on the behavior of the actor in 1201(a)(1)(A) with Section 210.1 of the Model Penal Code: Criminal Homocide ("A person is guilty of criminal homicide if he . . . causes the death of another human being.").

[65]According to Hollywood's lobbyists, however, it appears that copyright owners should control every facet of what Americans do with digital information, thus assuming that any and all circumventions are socially harmful and none beneficial. See Pamela Samuelson, The Copyright Grab, WIRED, Jan. 1996, at 134. While this argument technically still has a behavior-based criminal law rationale, the refusal to acknowledge any social benefit from circumvention provides such a lopsided imbalance so as to appear to be a property-based "rights against the world" rationale.

[66]See 17 U.S.C. § 1201 (d)-(j).

[67]See id. However, these are not the only socially beneficial instances of circumvention. See supra note 60 and accompanying text.

[68] 17 U.S.C. § 1201(f).

[69] S. Rpt. 190.

[70]There is no mention in the legislative history of 1201 regarding how these efforts might affect the property values of the underlying copyrighted work, except for a citation to Sega v. Accolade, discussed infra notes 114-17 and accompanying text, a case holding that infringing research necessary for interoperability was fair use. While the Sega court did conduct an analysis of the economic effect of interoperability research (concluding displacement of value was proper and did not have a material effect on the value of the copyright), the Senate report provides no discussion of this analysis nor draws any connection between TPMs and their effect on property values.

[71] 17 U.S.C. § 1201(h).

[72] S. Rpt. 190.

[73]See MODEL PENAL CODE § 3.07.

[74]See 17 U.S.C. § 1201(e).

[75]H.R. Conf. Rpt. 105-796 (Oct. 8, 1998) (emphasis added).

[76]MODEL PENAL CODE § 3.07.

[77] 17 U.S.C. § 1201(a)(1)(C).

[78]See Samuelson, supra note 7, at 547.

[79] 17 U.S.C. § 1201(a)(1)(C)(i-v).

[80]The study is to take into account the effect of circumvention on the market and value of copyrighted works, but this is only one factor and seems to be more of a concern over social benefit versus harm than loss of value.

[81]The U.S. was substantially in compliance already, however. See Samuelson, supra note 7, at 528 n.47.

[82]See id. at 529.

[83]The rationale for deterring willful infringement is based on criminal law as a means of maintaining social order and respect for the law. See supra note 51.

[84]See KADISH AND SCHULHOFER, supra note 41, at 115-19.

[85]See Samuelson, supra note 7, at 539 n.110 and accompanying text.

[86]See Holleyman Testimony, supra note 50.

[87]Here is a perfect example of where the analogy of physical property to intellectual property breaks down. In order to obtain a fair use copy of a digital work, you do not need to invade the physical property of the copyright owner. See David Friedman, Comment, In Defense of Private Orderings: Comments on Julie Cohen's "Copyright and the Jurisprudence of Self-Help." 13 BERKELEY TECH. L.J. 1151 (1998). You could simply access the work through a computer network and make a copy without disturbing the original data. In fact, many times the original data may be on a computer memory device which you have purchased (CD, diskette) or on your own personal property (hard drive). The examples of stealing a newspaper or the Declaration of Independence are even more absurd. There, the crime would be the taking of the physical paper embodying the information, not the information itself. I doubt the National Archives would care if you copied a digital .pdf file of the Declaration off their web site, but they would certainly care if you took the original paper copy from the vault because they would no longer have it. If these takings were only to make fair use copies and then to return the original, one could not say that any harm had come to the value of the property; the only reasonable justification for prohibiting these acts is a criminal justification of keeping the peace. If people were allowed to break into private physical property in order to make fair use, there would be increased social disorder and increased fears of diminished personal security and privacy. It is for these reasons that the aforementioned examples seem socially harmful, not because of their effect on the property values of the works in question.

[88]See Samuelson, supra note 7, at 539 n.111 (citing House Manager's Report on 1201, which characterizes circumvention to get unauthorized access as "the electronic equivalent to breaking into a locked room to obtain a copy of a book").

[89]See supra Part IV.A.I.

[90]See 17 U.S.C. § 1201(c)(1); Samuelson, supra note 7, at 539-40.

[91]The traditional fair use doctrine is based on two property theories. First, that the use does not significantly devalue the property. See 17 U.S.C. § 107 (factor four); Lawrence v. Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869) ("[I]f so much is taken, that the value of the original is sensibly diminished . . . that is sufficient . . . to constitute a piracy pro tanto.") (Story, J.); Second, fair use furthers the constitutional goal of promoting the sciences by creating new works. See Rosemont Enters. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966).

[92]See Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984).

[93]Peter D. W. Heberling, Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 COLUM. L. REV. 914, 916 (1975).

[94]DRESSLER, supra note 44, at § 16.03 [B] (quoting J.L. Austin, A Plea for Excuses, Freedom and Responsibility 6 (Herbert Morris ed. 1961)).

[95]See Greenawalt, supra note 92 at 1897. Other theories such as Moral Forfeiture, Moral Rights, and Superior Interest have been used to rationalize justifications, but these are essentially variations of the net social benefit theory. See DRESSLER, supra note 44, at § 17.02. For simplicity, I will confine my discussion to the net social benefit theory.

[96]See MODEL PENAL CODE § 3.03 (justifying violation of the criminal laws when required to execute specific public duties).

[97]See MODEL PENAL CODE §§ 3.01 - 3.11.

[98]MODEL PENAL CODE § 3.04(1) (emphasis added).

[99]See generally Robert F. Schopp, et al., Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse, 1994 U. ILL. L. REV. 45 (1994).

[100]See generally LENORE E. WALKER, THE BATTERED WOMAN SYNDROME (1984).

[101]See id.

[102]See Schopp, supra note 99, at 45-6.

[103]See id. at 47 n.8.

[104]See MODEL PENAL CODE § 3.06(1).

[105]See Greenawalt, supra note 92, at 1899-1900.

[106]See id.

[107]See id.

[108]See Heberling supra note 93.

[109]See Sony Corp. of Am. v. Universal City Studios, Inc. 464 U.S. 417, 451 (1984) (analyzing fair use by assuming that if allowed, the use will become widespread).

[110]See 17 U.S.C. § 107; Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

[111] 464 U.S. 417.

[112]See id. at 442.

[113]See id. at 436 ("Respondents argue that . . . supplying the 'means' to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement. This argument rests on a gross generalization that cannot withstand scrutiny.").

[114]See Sega Enters. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).

[115]See id. at 1522 (holding copyright did not extend to ideas under the idea-expression dichotomy).

[116]See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995). But consider that MAI may have been decided differently under a social benefit/harm analysis (hence the subsequent modification to section 117 of the DMCA) and that Triad essentially was implicitly decided under this analysis, 64 F.3d at 1336 (use of work for direct competition in service industry with copyright owner sans creation of new work was socially harmful).

[117]SeeSega, 977 F.2d at 1523 (determining that Accolade had made the copies "for a legitimate, essentially non-exploitative purpose").

[118]This is also supported by the exemption for interoperability in 1201 itself. See 17 U.S.C. § 1201(f).

[119] F.2d 255 (5th Cir. 1988).

[120]See id. at 262.

[121] F. Supp. 679 (N.D. Cal. 1994).

[122]See id. at 688.

[123]See id. at 685.

[124] 17 U.S.C. § 107.

[125]See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc. 464 U.S. 417 (1984) (VCRs), Sega Enters. v. Accolade, Inc. 977 F.2d 1510 (9th Cir. 1993) (decompiling object code), Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (rap music parody), Recording Indus. Ass'n of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999) (MP3 digital music archives), American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd. Cir. 1994) (photocopying for private corporate archives).

[126]See, e.g., Assault Weapon Ban Enhancement Act of 1999, H.R. 1809, 106th Cong.

[127]Compare Cal. Health & Safety Code § 12303 (West. 1999) and Cal. Penal Code § 466 (West. 1999) with 17 U.S.C. § 1201(a)(2).

[128]Query whether this might raise a constitutional issue of overlaps between copyright and patent. The Senate report for 1201 begins "Title I encourages technological solutions" to protecting copyrighted works. See 105 S. Rpt. 190. Encouraging technology has traditionally been the province of patent law. It makes one wonder if 1201 would be better suited 18 titles later in the U.S.C.

[129]Seesupra, notes 93-104 and accompanying text.

[130]See Samuelson, supra note 7, at 539.

[131]MODEL PENAL CODE § 3.04(1).

[132]See Samuelson, supra note 7, at 532 n. 151 (suggesting that fair use circumventors may need assistance, even if technically competent, but especially if not).

[133]MODEL PENAL CODE § 3.07(1) (emphasis added).

[134]Samuelson suggests this was Hollywood's real agenda - to extend their monopoly rights into the user realm and into other industries in order to secure their own content. See Samuelson, supra note 7, at 553.

[135]See 17 U.S.C. § 1201(a)(2), (b)(1).

[136]See, e.g., the tragedy in Littleton, Colorado.

[137]There may be some debate as to whether guns and fast cars are marketed specifically for shooting people or speeding, but one could easily see such uses being inferred if not explicitly stated.

[138]Notwithstanding the NRA and its strained defense of the Second Amendment, it is somewhat absurd to think that Congress and the copyright lobby see anti-circumvention technology as a greater threat to society than firearms.

[139]Perhaps we also allow these devices to exist out of respect for individual liberty and the right to choose not to exhibit illegal behavior even when we have the capacity and the capability.

[140]Another possible solution would be to adopt the contributory copyright standard set out by the Supreme Court in Sony. 464 U.S. at 442. Since the Court declared that allowing substantial fair uses is socially beneficial, one could simply change the "substantial non-infringing use" standard to a "substantial legitimate use" standard and insert into 1201(a)(2) and (b)(1), preserving the same balance through analogous language.

[141]See Webster, supra note 5, at 195. If, as Daniel Bell writes, increases in productivity are the key to social change, then 1201 seriously threatens increases in the productivity of access technology. See id. at 34. It is, in essence, protectionism for content industries at the expense of technological productivity. If the Clinton administration truly hopes to foster and promote the advancement of the U.S. economy into the information age, passing laws that inhibit increases in productivity are among the last things they should want to do.