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Abstract

The Digital Millennium Copyright Act (DMCA) has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products recently have attempted to use the DMCA to prevent commercial competitors from developing and marketing interoperable replacement parts in competition with them in relevant after-markets. Despite recent judicial determinations against such manufacturers, the potential for future manufacturers to argue for the application of the DMCA in these kinds of cases remains a matter of some concern as an unintended consequence of the legislation. This Article advocates the development and implementation of a legislative "carve out" to the DMCA in cases involving interoperable replacement parts for tangible goods where copyrightable software code is incorporated incidentally into either the original good or the authorized replacement part or both. DMCA liability should not arise in situations where copyright infringement is not a central commercial concern of the plaintiff.

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