Journal of Intellectual Property Law


In 1998, Congress passed the Digital Millennium Copyright Act with the express intention of protecting the intellectual property of copyright holders from the growing threats of digital piracy and information sharing brought about by an increasingly digital society.

Among the law’s many provisions is §1201, which works to prohibit circumnavigation of digital protections copyright holders may put on protected works—in essence, innovators or competitors would be unable to develop technology or programs to bypass security measures put into place by primary creators. While this provision seems facially reasonable, it has effectively served as a means to quash adversarial interoperability.

Adversarial interoperability is the development of a product intended to interact with or function alongside another, without that creator’s permission. This practice of interoperability allowed many of today’s tech giants to reach their current heights, and these measures taken to stop those practices only serve to maintain the status quo.

Without meaningful challenges through adversarial interoperability, giants like Facebook are under very little threat from would-be competitors, and consequently, feel very little pressure to make systemic changes which could benefit the common consumer. The status quo allows dominant players to buy out potential competition, and many investors are hesitant to put money on a horse racing against an established power.

This paper looks at the history of interoperability and how §1201 serves to protect the interests of already powerful players in the tech space, and looks at advantages and disadvantages to expanded use of adversarial interoperability. It also examines potential avenues for moving forward by looking at the French example of a law that aims in the right direction, but does not pack powerful enough a punch to make a lasting difference.

In the end, this paper advocates for a change of course in how America deals with adversarial interoperability and competition. America should reverse its position and legitimize interoperability as a foundational tool in the entrepreneurial economic system it purports to champion.