Page:Fair Circumvention.djvu/3

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substance, even if it has not been so labeled by the courts, an emerging doctrine of “fair circumvention.”

My aims herein are both descriptive and normative. As to the former, I believe that the reference to an emerging judge-made common law of fair circumvention more accurately describes what the courts are doing in fact when confronted with cases that test the limits of the statutory ban on circumventing or trafficking in circumvention devices. To decide DMCA disputes, the courts are borrowing—sometimes expressly, sometimes not—from copyright law principles, including fair use. As to the latter, I conclude that further development of legal doctrine in this area ought to rest on the forthright acknowledgment and evolution of an express judge-made “fair circumvention” exception to the DMCA through the ordinary means of case-by-case adjudication. As I will discuss below, acknowledging the link between the existing fair use doctrine and the emerging “fair circumvention” doctrine would offer a far more robust analytical toolset than exists under the courts’ current approach, which involves divining (or, more accurately, imputing) legislative intent in the face of statutory silence. Indeed, several of the factors the courts have seized upon as most salient, such as the nature of the underlying expressive work and the threat of economic harm to the plaintiff, are as clearly encompassed within the historical contours of copyright’s fair use doctrine as they are detached from the actual statutory text of the DMCA.

An analytical caveat is in order, however: it is not my contention that the courts have imported copyright’s fair use exception wholesale into the DMCA. Although the statute states Congress’s intention to preserve fair use,[1] the anti-circumvention provisions of the DMCA make no express exceptions for fair uses,[2] and some courts have rejected the notion that a party accused of a DMCA violation may interpose a fair use defense.[3] Although some language in more recent court decisions is more hospitable to the possibility that a fair use defense may exist in the DMCA context,[4] no court has yet gone so far as to hold that circumventing a technological protection measure is permissible under the DMCA in order to make a fair use of the underlying copyrighted work.[5] My contention, rather, is that courts are borrowing (and should

  1. See 17 U.S.C. § 1201(c)(1), discussed infra notes 29, 62-65 and accompanying text.
  2. See, e.g., David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 727-39 (2000) (demonstrating that DMCA’s purported safeguards for users fail to accommodate existing fair use doctrine); id. at 739 (“The result of these juxtapositions seems to be a conscious contraction of user rights.”).
  3. See, e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 321-24 (S.D.N.Y. 2000) (analyzing the doctrine of fair use), aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). See infra Part II.B.1.
  4. See, e.g., infra note 153 and accompanying text.
  5. I have previously suggested that such a decision would represent only a modest extension of currently existing doctrine and would be potentially desirable insofar as it would eliminate the discrepancy that presently exists between the extent of lawful fair uses of works that are protected by DRM mechanisms and those that are not. See Timothy K. Armstrong, Digital Rights Management and the Process of Fair Use, 20 Harv. J.L. & Tech. 49, 114-16 (2006). As suggested in the remainder of this paragraph, however, my goal in this Article is somewhat broader and is not limited to ensuring adequate protection for fair use of copyrighted works that exist in digital form. Cf., e.g., Robert D. Denicola, Access Controls, Rights Protection, and Circumvention: Interpreting the Digital Millennium Copyright Act to Preserve Noninfringing Use, 31 Colum. J.L. & Arts 209, 220-32 (2008) (arguing that courts should interpret the DMCA with specific focus on preserving fair uses); YiJun Tian, Problems of Anti-Circumvention Rules in the DMCA & More Heterogenous Solutions, 15 Fordham Intell. Prop. Media & Ent. L.J. 749, 779-81 (2005) (same).