Page:Fair Circumvention.djvu/29

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FAIR CIRCUMVENTION

view, should not look outside the DMCA’s anti-circumvention and trafficking provisions to inquire, when adjudicating a DMCA claim, whether a plaintiff’s copyright interests are at stake.[1]

Taken as a whole, however, the statutory text does not comfortably accommodate the attempts of decisions such as Reimerdes to draw a sharp dividing line between the offense of copyright infringement on the one hand and violations of the DMCA on the other.[2] The two are clearly more closely related, their boundaries more permeable, than these opinions suggest.

First, the DMCA contains multiple provisions that refer explicitly to copyright language and concepts. Reference to the broader corpus of federal copyright law is essential to give these provisions of the DMCA any meaning at all. Liability for both circumvention and trafficking, for instance, exists only where technological measures protect a presently copyrighted work; that is, the existence of a valid copyright is an express statutory precondition both to a claim for copyright infringement and a claim arising under the DMCA.[3] One of the DMCA’s two bans on trafficking in circumvention devices imposes liability only where “a right of a copyright owner” is at stake.[4] The DMCA does not tell us what the “rights of a copyright owner” are; only the Copyright Act can do that.[5] To take another example: although the DMCA refers repeatedly, at critical junctures, to the concept of the authority of the copyright owner,[6] nothing in the DMCA identifies the copyright owner whose “authority” is needed; only the Copyright Act does that.[7] Furthermore, nothing in the DMCA tells us how to determine the scope of the “rights, remedies, limitations, or defenses to copyright infringement, including fair use,”[8] or the scope of “vicarious or contributory liability for copyright infringement,”[9] with which Congress disclaimed any intent to interfere.

The interconnections between copyright and the DMCA are even more substantial and pervasive, however, than the foregoing paragraph might suggest. For example, the remedies Congress provided under the

  1. Cf., e.g., R. Polk Wagner, Reconsidering the DMCA, 42 Hous. L. Rev. 1107, 1125 (2005) (noting that “the DMCA is not really a law about copyright. It is instead a law about technology”).
  2. See supra notes 51-55 and accompanying text.
  3. 17 U.S.C. § 1201(a)(1)(A) and (a)(2) repeatedly refer to “a work protected under this title”—that is, protected by copyright—as the subject matter to which either anti-circumvention or trafficking liability can attach. 17 U.S.C. § 1201(a)(1)(A)-(a)(2) (2006) (emphasis added).
  4. Id. § 1201(b)(1).
  5. See id. § 106 (2006) (defining rights of a copyright owner).
  6. The copyright owner’s authority forms a part of the definitions of both “circumvent” and “effectively controls access.” Id. § 1201(a)(3)(A)-(B) (internal quotation marks omitted).
  7. See id. §§ 201-205 (2006).
  8. Id. § 1201(c)(1).
  9. Id. § 1201(c)(2).