Page:Fair Circumvention.djvu/9

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2008]
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FAIR CIRCUMVENTION

the statute’s liability provisions by listing a number of countervailing policies and rights with which it disclaimed any intention to interfere, including fair use[1] and freedom of expression.[2] Congress similarly stated that it did not intend the DMCA to alter the traditional judge-made contours of secondary liability[3] or to force technology manufacturers to include any particular form of technological protection measure in their products.[4]

B. The DMCA in the Courts

The cases that have delineated the boundaries of the anticircumvention cause of action may be divided, without undue oversimplification, into two categories. On one side fall the cases that have construed the DMCA broadly, enlarging its remedial reach by construing uncertainties in the statutory text against accused violators. On the other side are the cases that have given the statute a narrow reading, enunciating principles that support limits on the scope of DMCA liability. Both sets of cases, however, give the statute a reading that is at once rigidly formalistic and highly selective—that is, the courts simultaneously insist that their interpretations are commanded by the statutory text while disregarding or construing away other provisions that actually appear in the DMCA.

1. The DeCSS Case

One of the earliest judicial applications of the DMCA, and still the high-water mark of the expansive view of the statute, was the socalled “DeCSS” litigation.[5] DeCSS was a computer program written to enable users to decode the audiovisual content of DVD-Video discs

  1. 17 U.S.C. § 1201(c)(1) (“Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”).
  2. Id. § 1201(c)(4) (“Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.”).
  3. Id. § 1201(c)(2) (“Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.”).
  4. Id. § 1201(c)(3) (“Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).”).
  5. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000), aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).