Page:Fair Circumvention.djvu/32

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[Vol. 74:1

bound up with utilitarian considerations,[1] the functionality principle would suggest that those works were entitled to comparatively limited copyright protection. Interpreting the DMCA to extend comparably limited protections in the same circumstances might explain the courts’ decisions for the defendants in each of those cases. Conversely, interpreting the DMCA to provide a sui generis form of protection unconnected with traditional intellectual property principles makes such decisions correspondingly difficult to understand in view of their apparent departures from the text of the DMCA as written.

The functionality principle is only one of many useful analytical tools that the courts have developed during the more than two centuries since the enactment of the first federal copyright law.[2] Many of those concepts carry as much potential explanatory power in today’s digital world as they did before the enactment of the DMCA. DMCA jurisprudence would be needlessly impoverished if the courts were walled off from considering the broader history of federal efforts to protect expressive works. Borrowing from long-established copyright principles carries no perceptible risks of flouting legislative intent, and the courts should, therefore, assume that general copyright principles remain applicable in cases under the DMCA.

B. Copyright, Statutory Interpretation, and the DMCA

If, as I have argued, it is correct to interpret the DMCA as a copyright statute, rather than as a sui generis regulatory regime unmoored from the broader corpus of intellectual property law, one practical implication is a relatively greater policymaking role for the courts. Although the development of federal copyright law has rested partly upon a series of statutory enactments,[3] the copyright statutes have always left the courts with substantial policymaking responsibilities. Indeed, some of the most important (and now unquestioned) doctrines in all of copyright, such as fair use, evolved from courts seizing policymaking functions even in the absence of an express legislative delegation.[4] Congress, for its part, has generally not sought to craft exhaustive, comprehensive statutory text that leaves no discretion to the

  1. The software at issue in Chamberlain, which the court presumed to be copyrighted, was designed to serve the functional purpose of enabling purchasers to open and close their garage doors via remote control, rather than for a creative or expressive purpose. See supra notes 78-80 and accompanying text. The copyrighted works at issue in Lexmark were a pair of computer programs that had been written to assist with the operation of Lexmark printers, including the functionality of testing to see whether the customer had inserted a third-party refilled toner cartridge. See supra notes 107-112 and accompanying text; see also supra note 120 and accompanying text (noting court’s doubts that Lexmark’s TLP qualified for copyright protection due to its functional characteristics).
  2. See Act of May 31, 1790, ch. 15, 1 Stat. 124; see also 1 William F. Patry, Copyright Law and Practice 25-36 (1994) (recounting history of Copyright Act of 1790).
  3. See generally 1 William F. Patry, Patry on Copyright §§ 1:19-:98 (2007) (recounting history of federal copyright legislation since 1790).
  4. See infra notes 231-244 and accompanying text.