Page:Fair Circumvention.djvu/15

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2008]
15
FAIR CIRCUMVENTION

works, however, is expressly “permitted by law” in the United States.[1] To the extent that the DMCA is interpreted to implement the treaty obligations that prompted its enactment,[2] accordingly, the statute cannot plausibly be read to forbid circumvention for fair use.[3] Although the Reimerdes court recognized that its interpretation of the DMCA “le[ft] technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so,” it declared that this problem was “a matter for Congress.”[4] A court less animated by hostility to the defendants in the case at bar might more readily have perceived such an absurd consequence as evidence of error in its interpretation of the statute.[5]

2. The Durable Goods Cases

In a trio of more recent cases—Chamberlain Group, Inc. v. Skylink Technologies, Inc.,[6] Lexmark International, Inc. v. Static Control Components, Inc.,[7] and Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc.[8]—two federal courts of appeals refused to apply the DMCA to prevent circumvention of access control mechanisms embedded in durable goods.

  1. 17 U.S.C. § 107.
  2. On the general principles applicable to the interpretation of statutes and treaties, see 1A Norman J. Singer, Sutherland Statutes & Statutory Construction § 32:6 (6th ed. 2008).
  3. The Clinton Administration’s 1995 White Paper, which also prompted the enactment of the DMCA, suggested this very solution to the possible conflict between copyright’s fair use doctrine and its proposed anti-circumvention law. The White Paper recommended the enactment of legislation prohibiting circumvention of copy controls “without authority of the copyright owner or the law[.]” White Paper, supra note 12, at 230 (emphasis added). It then reasoned that “if [a] circumvention device is primarily intended and used for legal purposes, such as fair use, the device would not violate the provision, because a device with such purposes and effects would fall under the ‘authorized by law’ exemption.” Id. at 231.
  4. Reimerdes, 111 F. Supp. 2d at 324.
  5. The Second Circuit affirmed the trial court’s decision on appeal. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). The appellate court’s decision adds little to our understanding of the DMCA, however, because the appellants elected to rely primarily on constitutional, rather than statutory, arguments. See id. at 444-45, 458-59. The appellants first argued that limitations on fair use offended First Amendment principles. U.S. Const. amend. I. The Court of Appeals reasoned that the functional characteristics of the DeCSS code disentitled it to the full extent of First Amendment protection that attaches to ordinary speech, and that the DMCA was a content-neutral regulation that served a substantial governmental interest unrelated to the suppression of free expression and was not unduly burdensome. See id. at 452-54. I have previously expressed doubt as to the ongoing viability of this portion of the court’s analysis. See Armstrong, supra note 11, at 68 n.87. If we conceptualize fair use as protecting First Amendment values, as the Supreme Court did in Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003), then constructions of the DMCA that work to restrict fair use in practice may become constitutionally suspect. More recent cases may suggest greater judicial willingness to subject copyright legislation to First Amendment scrutiny. See, e.g., Golan v. Gonzales, 501 F.3d 1179, 1187-96 (10th Cir. 2007). The Court of Appeals further rejected any argument grounded on the Progress Clause, U.S. Const. art. I, § 8, cl. 8, rather than the First Amendment. See Corley, 273 F.3d at 458-59.
  6. 381 F.3d 1178 (Fed. Cir. 2004). See infra notes 77-104 and accompanying text.
  7. 387 F.3d 522 (6th Cir. 2004). See infra notes 105-145 and accompanying text.
  8. 421 F.3d 1307 (Fed. Cir. 2005). See infra notes 146-154 and accompanying text.