Page:Fair Circumvention.djvu/12

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12
[Vol. 74:1
BROOKLYN LAW REVIEW

creation of the circumvention tool at issue: DeCSS circumvented what was “effectively” an access control mechanism because the copyright holder had provided an avenue for authorized decryption of the protected content (to wit, purchase of a license from the DVDCCA) with which the designers of DeCSS had failed to comply.[1] Because there was no “authority of the copyright owner” for the creation of such a tool, the court reasoned, the dissemination of DeCSS by the defendants necessarily violated the DMCA.[2]

The court rejected the defendants’ argument that circumvention of a technological measure for the purpose of making a fair use of the underlying copyrighted work would be permissible under the DMCA.[3] The court’s reasoning began with the truism that copyright infringement and violations of the anti-circumvention provisions of the DMCA are distinct offenses.[4] A defense to the former, accordingly, was not automatically a defense to the latter. The statutory text, however, was silent on the question whether fair use could be raised as a defense to a claim under the DMCA. The court construed this silence as an implicit legislative rejection of the fair use defense, reasoning that “[i]f Congress had meant the fair use defense to apply to such [DMCA] actions, it would have said so.”[5] Rather than “saying so,” however, Congress gave indications that the court found adequate to conclude that fair use of the underlying copyrighted work could not immunize a party from liability for circumventing an access control mechanism. The court pointed, first, to the fact that authorization by the copyright holder was a complete defense to a DMCA violation; second, to the fact that Congress delayed the statute’s effective date; and third, to the enumeration of some exceptions to liability in the DMCA itself.[6] The court found the DMCA “crystal clear” in providing no fair use defense to a trafficking claim[7] and refused any suggestion that it should construe the statute in favor of such an exception. “In such circumstances,” the court concluded, “courts

  1. See id. at 317-18.
  2. See Reimerdes, 111 F. Supp. 2d at 317 (quoting 17 U.S.C. § 1201(a)(3)(B)) (“[A] technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires . . . the authority of the copyright owner, to gain access to [the] work.”).
  3. Id. at 321-24. The defendants raised this argument in an ultimately unsuccessful effort to bring DeCSS within the “safe harbor” announced in Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984), for technologies “capable of substantial noninfringing uses.” See Reimerdes, 111 F. Supp. 2d at 323-24. In general, the courts have resisted importing the Sony analysis, which arose originally in the context of a claim for contributory copyright infringement, as a defense to claims under the DMCA. See, e.g., RealNetworks, Inc. v. Streambox, Inc., No. 2:99CV02070, 2000 WL 127311, at *8 (W.D. Wash. Jan. 18, 2000).
  4. Reimerdes, 111 F. Supp. 2d at 322. But see infra Part III.A.
  5. Reimerdes, 111 F. Supp. 2d at 322.
  6. Id. at 323.
  7. Id. at 324.