IT시장에서 DRM의 반경쟁적 이용사례와 경쟁법의 적용

In this article, I will focus simply on one narrow and specific part likely to emerge from IT markets in the United States: the implications of the combination of technologies known as Technology Protection Measures (“TPMs”) and Digital Right Management (“DRM”) measures with the U.S. anti-circumvention legal regime governed by the Digital Millennium Copyright Act (“DMCA”). Then, this article provides the harms from these legal regime and gives implications for regulating the IT market in Korea. While traditional markets has the common characteristics which are measured with the general competitive analyses, Information Technology (“IT”) markets are characterized by special and unique features that are discussed in this article. That is, competition in IT markets is dynamic; nonmarket based information production models (“peer production”) play a significant role in IT markets; and IT markets are usually data markets rather than product markets. The combination of the legal rule prohibiting circumvention of technological measure under the DMCA and the use of DRMs, created a new regime, the DRM/DMCA regime, which bestows the entertainment industry with a new and strong right to control the access to and use of the copyrighted work. Under the some circumstances, the use of such a strong right under the DRM/DMCA regime may have anti-competitive impacts in IT markets. A recent examples for such allegedly anti-competitive use of the DRM/DMCA regime can be found in the litigations initiated by movie studios and the DVD CCA against two IT companies, Kaleidescape and RealNetworks. These cases demonstrate the attempts of the entertainment industry to block the marketing of technological devices or software products that allow their end users to upload the content of their DVD to the device's hardware and replay it afterwards from the device itself or their own PC. The key question addressed in this article is the limits of the conceptual framework of antitrust law and of copyright law for regulating possible anti-competitive effects of the DRM/DMCA regime on competition in IT markets in the U.S., given the unique features of IT markets. In conclusion, given the setbacks in the regulation under copyright law, it seems necessary to conduct further study on the application of antitrust enforcement standards. Under this study, it would be necessary to examine how antitrust enforcement standards should be changed in order to adequately address the unique features of IT markets discussed in this article.