Page:Fair Circumvention.djvu/30

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[Vol. 74:1
BROOKLYN LAW REVIEW

DMCA closely track the remedies available for copyright infringement.[1] The DMCA’s anti-circumvention provisions were enacted alongside provisions creating new defenses to claims for copyright infringement.[2] Both Congress and the President justified the enactment of the DMCA as a necessary measure to deter copyright infringement.[3] The statute gives authority to craft exceptions from its liability provisions in part to the Register of Copyrights.[4] Even the placement of the statute within the United States Code carries colorable significance: although an early version of the legislation that became the DMCA proposed to “move[] the anti-circumvention provisions out of Title 17” on the grounds that “these regulatory provisions have little, if anything, to do with copyright law,”[5] the eventual inclusion of the anti-circumvention provisions alongside the rest of the federal copyright law

  1. Compare id. § 1203(b)(1) (2006) (authorizing a court to grant temporary and permanent injunctions to prevent or restrain a DMCA violation), with id. § 502(a) (2006) (authorizing courts to award injunctive relief to prevent or restrain infringements of copyright); id. § 1203(b)(2) (authorizing a court to impound any device or product it finds was involved in a DMCA violation) with id. § 503(a) (authorizing courts to seize and impound property believed to have been used in infringements of copyright); id. § 1203(c)(2) (authorizing a court to award actual damages for violations of the DMCA) with id. § 504(b) (2006) (authorizing award of actual damages to copyright holders injured through infringements of copyright); id. § 1203(c)(3) (authorizing a complaining party to elect to recover statutory damages any time before final judgment on a DMCA violation) with id. § 504(c)(1) (authorizing award of statutory damages to a copyright owner for copyright infringement violations); id. § 1203(c)(5)(B) (authorizing a court to reduce or remit an award of damages when it finds a library, archives, education institutions or public broadcasting entity innocently violated the DMCA) with id. § 504(c)(2)(i)-(ii) (authorizing reduction in statutory damages awards against innocent infringers, and the remitting of all statutory damages where the copyright infringement was committed by a nonprofit archive, library, educational institution, or public broadcaster, or the employees of such institutions).
  2. The anti-circumvention provisions of the DMCA were added in Title I of the legislation. See Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, § 103, 112 Stat. 2860, 2861-77. Title II enacted what is now 17 U.S.C. § 512, creating a new statutory immunity from liability for copyright infringement for internet service providers in certain circumstances. See id. § 202, 112 Stat. at 2877-84. Title III of the statute amended 17 U.S.C. § 117 to provide a new defense to claims for copyright infringement arising from computer maintenance or repair, superseding court decisions such as MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993). See Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, § 302, 112 Stat. 2860, 2886-87. Title IV of the statute made various other modifications to the Copyright Act. See id. §§ 401-407, 112 Stat. at 2887-2905. The only portion of the DMCA as enacted that is arguably unconnected with copyright is Title V, in which Congress created a form of sui generis intellectual property protection for the design of boat hulls, superseding the Supreme Court’s decision in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 143 (1989). See supra note 163.
  3. See Statement on Signing the Digital Millennium Copyright Act, 2 Pub. Papers 1902, 1903 (Oct. 28, 1998) (“Through enactment of the Digital Millennium Copyright Act, we have done our best to protect from digital piracy the copyright industries that comprise the leading export of the United States.”); S. Rep. No. 105-190, at 2 (1998) (“[T]he law must adapt in order to make digital networks safe places to disseminate and exploit copyrighted materials.”); id. at 8 (“Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously, copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy.”); H.R. Rep. No. 105-551, pt. 2, at 25 (1998) (“[T]he digital environment poses a unique threat to the rights of copyright owners, and as such, necessitates protection against devices that undermine copyright interests.”).
  4. 17 U.S.C. § 1201(a)(1)(C); see also supra note 28.
  5. H.R. Rep. No. 105-551, at 23-24.