Page:Fair Circumvention.djvu/33

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courts; to the contrary, it has repeatedly blessed judicial exercises of independent policymaking in matters of copyright.[1] Copyright treatises, too, recognize the historical and ongoing policymaking responsibilities of the courts.[2]

This history puts one obvious objection to the creation of a judge-made fair circumvention doctrine in a rather different light. In substance, the objection would be that to recognize a new judge-made doctrine of fair circumvention would be an affront to Congress’s lawmaking role.[3] Congress having spoken, the argument would run, the courts’ obligation as “faithful agents” of the legislature[4] is to apply the enacted text as written, and to leave to Congress the task of crafting exceptions from whatever liability rules it chose to adopt.[5] The fact that Congress expressly established certain limitations upon the liability rules adopted in the DMCA, this line of reasoning would continue, only strengthens the presumption against the recognition of additional unstated exceptions by judicial fiat.[6]

To be sure, the courts can and do rely on the enacted statutory text as the primary and best indication of legislative intent,[7] although the command to apply the enacted text as written is not inexorable.[8] Nevertheless, whatever the overall merits of the interpretive theory that courts must act only as “faithful agents,” applying the statutory text precisely as written by Congress without interjecting their own

  1. See, e.g., infra notes 201-202; cf. infra note 200.
  2. See 1 Howard B. Abrams, The Law of Copyright § 1:1, at 1-6 (2007) (“While some lines are drawn in the Copyright Act, they are often drawn in terms that rely on the history of copyright, and, indeed, of the history of judicial and jurisprudential thinking about copyright.”); Patry, supra note 186, § 2:1 (“[C]ritical components of copyright law are judge-made. . . . [T]he Act is a mixture of statutory and common-law features.”).
  3. See Efroni, supra note 96, at 100 (arguing that judicial decisions in the durable goods cases reflect a judicial “understanding of the appropriate balance between the interests of copyright owners and information users” that “is quite different from Congress’s policy reflected in the DMCA”).
  4. See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 5 (2001).
  5. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 20 (Amy Gutmann ed., 1997) (“Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.”).
  6. See supra notes 53-55 and accompanying text.
  7. See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992) (referring to “the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written”); Caminetti v. United States, 242 U.S. 470, 485 (1917).
  8. See, e.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (where “‘the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters[,]’ . . . . the intention of the drafters, rather than the strict language, controls”) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); United States v. Turkette, 452 U.S. 576, 580 (1981) (“absurd results are to be avoided and internal inconsistencies in the statute must be dealt with”); Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940).