Page:Fair Circumvention.djvu/28

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[Vol. 74:1

promise in developing a rational and consistent body of DMCA case law. Rather than ignoring provisions of the DMCA that suggest decisions contrary to the ones they wish to reach, we should prefer instead that the courts acknowledge the necessity of venturing beyond the four corners of the enacted text. Although such an acknowledgement is potentially controversial largely for political reasons,[1] the foreseeable benefits to both the courts and public from considering additional indicia of meaning beyond the bare text of the DMCA suffice to outweigh the risks. The benefits to be gained include rationality and predictability, and ultimately a DMCA regime that more closely resembles the world Congress believed it was creating in 1998.

The discussion that follows will begin by situating the DMCA within the broader corpus of federal copyright law. Although the DMCA created new obligations beyond those that already existed under the copyright statute, it nevertheless drew heavily upon copyright concepts, language, and policies in delimiting those obligations. Because of the multiple interconnections between the DMCA and the remainder of federal copyright law, the analysis then turns to the question how those connections can and should illuminate judicial decisions. Finding the DMCA to be unclear or internally inconsistent at a number of key junctures, I conclude that the courts should play the same policy-making role that they have historically performed in guiding the evolution of copyright. Finally, by way of illustrating some consequences that might follow if the courts were to proceed along the lines identified herein, I consider whether existing copyright principles of fair use may serve to guide future decisions in DMCA cases.

A. Reading the DMCA as a Copyright Statute

One identifiable source of the courts’ varying readings of the DMCA lies in their disagreements about the relevance, or lack thereof, of the remaining provisions of the Copyright Act. As some courts (and some litigants) have portrayed it, the DMCA stands entirely apart from preexisting copyright law.[2] Congress, on this reading, created a sui generis regulatory regime for technological protection systems, just as it had previously done for semiconductor chips,[3] digital audio recording devices,[4] bootleg recordings,[5] and boat hulls.[6] The courts, on this

  1. Although not, as I will suggest below, overly so. Cf. infra Part IV and notes 274-277 and accompanying text.
  2. See supra notes 51-55, 90 and accompanying text.
  3. See Semiconductor Chip Protection Act of 1984, Pub. L. No. 98-620, 98 Stat. 3335 (codified as amended at 17 U.S.C. §§ 901-914 (2006)).
  4. See Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237 (codified as amended at 17 U.S.C. §§ 1001-1010 (2006)).
  5. See Uruguay Round Agreements Act, Pub. L. No. 103-465, § 512(a), 108 Stat. 4809, 4974 (1994) (codified at 17 U.S.C. § 1101 (2006)).
  6. See Vessel Hull Design Protection Act, Pub. L. No. 105-304, §§ 501-505, 112 Stat. 2860, 2905-18 (1998) (codified at 17 U.S.C. § 1301 (2006)).