Page:Fair Circumvention.djvu/18

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[Vol. 74:1

Copyright Act’s balancing of the interests of content creators on the one hand and consumers and users of copyrighted works on the other.[1] Furthermore, it neatly sidesteps the often-debated question whether the DMCA is inherently inimical to fair use.[2]

The court’s interpretation, however, makes a sufficiently poor fit with the text of the DMCA as enacted to raise challenging questions concerning the decision’s persuasive force in future cases. Nothing in the text of Section 1201, for example, expressly conditions a defendant’s anti-circumvention or trafficking liability upon a prior showing of copyright infringement.[3] Articulating the contrary view, the Copyright Office has suggested that, while circumvention of a copy control mechanism for a noninfringing purpose would survive scrutiny under the DMCA, circumvention of an access control mechanism for the same purpose would be illegal.[4] The Chamberlain court’s apparent assumption that the defendant must have either infringed, or at least helped contribute to the infringement of, plaintiff’s copyrights also coexists uneasily alongside Congress’s express disavowal in the DMCA of any intention to alter the existing contours of secondary liability for copyright infringement.[5] In short, by purporting to rest its decision upon

  1. The notion of a proper balancing of interests as between creators and consumers of content has been recognized as essential to serving the broader public interest in the creation and dissemination of new works, a process that could readily be stifled if creators’ rights grew too powerful. See, e.g., Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (copyright law “reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”); White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc) (“Overprotecting intellectual property is as harmful as underprotecting it. . . . Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”); Yochai Benkler, The Wealth of Networks 38 (2006) (“If we pass a law that regulates information production too strictly, allowing its beneficiaries to impose prices that are too high on today’s innovators, then we will have not only too little consumption of information today, but also too little production of new information for tomorrow.”).
  2. See, e.g., Nimmer, supra note 8; Armstrong, supra note 11, at 51 n.5. The court in Chamberlain was careful to reserve judgment on this question. See Chamberlain, 381 F.3d at 1199 n.14.
  3. Indeed, legislative proposals to amend the DMCA to expressly permit circumvention for noninfringing purposes tend to negate any suggestion that the existing statutory text already embraces such a rule. See H.R. 1201, 109th Cong. (1st Sess. 2005), § 5(b)(1) (proposing to amend 17 U.S.C. § 1201(c)(1) by adding the following text: “and it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work”).
  4. U.S. Copyright Office, The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary 4 (1998), available at (“[S]ince the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited.”). As noted above, nothing in the DMCA forbids circumvention of copy controls, although such circumvention may be punishable under ordinary copyright law where it results in copyright infringement. See supra note 20 and accompanying text.
  5. See 17 U.S.C. § 1201(c)(2) (2006); see also Zohar Efroni, Towards a Doctrine of “Fair Access” in Copyright: The Federal Circuit’s Accord, 46 IDEA 99, 107 (2005) (“[T]he text of neither the anti-circumvention nor the anti-trafficking provisions conditions liability with showing a link to activity that interferes with traditional copyrights.”).