Page:Fair Circumvention.djvu/14

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[Vol. 74:1

DMCA, truly rest upon a careful construction of the statute rather than on the judge’s manifest visceral dislike of the defendants.[1]

That the court’s hostile rhetoric provides the key to understanding its analysis is further evidenced by the fact that, considered on its own terms, Reimerdes articulates a facially dubious construction of the statutory text. Section 1201(c)(1) of the DMCA, for example, states Congress’s intention not to constrict the scope of the fair use doctrine.[2] According to the Reimerdes court, this provision signified only that fair use remained a defense to a claim for copyright infringement but did not provide a defense to a claim arising under the DMCA.[3] As so construed, however, Section 1201(c)(1) is mere surplusage, adding nothing to the statutory fair use defense to copyright infringement already provided in Section 107 of the Copyright Act.[4] Settled principles of interpretation counsel against a construction that renders statutory language superfluous.[5]

Still more troubling is the tension between the court’s interpretation of the text of the DMCA and the provisions of the copyright treaties that the DMCA was enacted to implement. As the Reimerdes court noted,[6] Congress passed the DMCA to implement the United States’ obligations under the WIPO Copyright Treaty.[7] Article 11 of that Treaty requires signatory nations to prohibit circumvention of technological measures “that restrict acts . . . which are not authorized by the authors concerned or permitted by law.”[8] Fair use of copyrighted

  1. See also Mark Deffner, Note, Unlawful Linking: First Amendment Doctrinal Difficulties in Cyberspace, 3 Minn. Intell. Prop. Rev. 111, 133-34 (2002) (noting that “[e]lements of the Reimerdes court’s opinion would seem to point towards picking a conclusion first and then finding reasons to support it” and identifying other “aspects of the court[’]s decision” that “also suggest a predisposition against the defendant”).
  2. 17 U.S.C. § 1201(c)(1) (2006) (“Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”).
  3. See supra notes 51-55 and accompanying text. The court of appeals also read § 1201(c)(1) in a similar fashion. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001).
  4. See 17 U.S.C. § 107 (2006); see also Landau, supra note 20, at 299-300 (“If fair use only applied to acts of copying once access was authorized, the language under section 107 would cover the defendant’s activities. Adding a fair use provision in section 1201 shows that fair use was meant to be considered in situations involving circumvention technologies.”).
  5. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 476-77 (2003) (“Absent a statutory text or structure that requires us to depart from normal rules of construction, we should not construe the statute in a manner that is strained and, at the same time, would render a statutory term superfluous.”); Duncan v. Walker, 533 U.S. 167, 174 (2001) (“We are thus ‘reluctan[t] to treat statutory terms as surplusage’ in any setting. . . . We are especially unwilling to do so when the term occupies so pivotal a place in the statutory scheme as does the word ‘State’ in the federal habeas statute.”) (citations omitted); Bailey v. United States, 516 U.S. 137, 145 (1995) (relying on “the assumption that Congress intended each of its terms to have meaning”).
  6. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 316 (S.D.N.Y. 2000), aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
  7. See supra note 16 and accompanying text.
  8. WIPO Copyright Treaty, supra note 14, art. 11 (emphasis added). The obligation created under Article 18 of the WIPO Performances and Phonograms Treaty is phrased similarly. See supra note 15 and accompanying text.