Document Type

Article

Publication Date

2012

Abstract

Over ten years ago, in the pages of this Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the U.S. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, U.S. authors’ moral rights remain in their infancy, still in need of a guardian ad litem. Nor is it clear what legal institution can assume that role. Judicial interpretation of the Digital Millennium Copyright Act (“DMCA”) underscores that text’s limited utility as a legal basis for attribution rights. Moreover, the U.S. Supreme Court’s 2003 decision in Dastar Corp. v. Twentieth-Century Fox Film Corp. has probably left authors worse off because the Court precluded recourse under the Lanhamrights.2 If statutes and caselaw afford no general basis of moral rights, might the convergence of contract law and digital communications yield agreements, private in form but public in impact, that collectively approximate attribution and integrity rights? Or will the shortcomings of “viral” contracts temper cyber-utopian enthusiasms, once again disappointing expectations in the ability of the regulation of digital media to secure authors’ rights?

This assessment of developments in moral rights in the U.S. since 2001 will first analyze the caselaw construing § 1202 of the DMCA, which prohibits removal or alteration of “copyright management information.” It will next summarize the damage Dastar has done to the development of moral rights. Finally, I will consider the extent to which online contracts and practices may supply an effective basis for the assertion of attribution and integrity rights.

Disciplines

Entertainment, Arts, and Sports Law | Intellectual Property Law | Law

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