Page:Fair Circumvention.djvu/36

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[Vol. 74:1

copyright received Congress’s blessing in the committee reports accompanying the Copyright Act of 1976.[1]

Even in the absence of express legislative ratification, the courts occasionally exercise their interpretive authority under the Copyright Act to protect countervailing policies. Thus, for example, although the literal text of the Copyright Act appears to assign the copyright in scholarly works to the institutions that employ the scholar,[2] the courts have refused to so construe the act on public policy grounds, instead invoking a judge-made “teacher’s exception” to vest in scholars themselves the copyright interests in their own work.[3] Indeed, the Supreme Court has repeatedly exercised its interpretive authority to “import” new theories of liability, and new defenses, from the Patent Act into the Copyright Act—citing, in each case, what the Court portrayed as strong policy reasons for reading the Copyright Act as if it included language actually found in another statute altogether.[4]

Thus, although nominally a creature of statute, federal copyright law has actually grown and evolved as a hybrid of statutory and common-law principles. Partly for historical reasons, and partly because of the vagueness of many of the governing provisions of the Copyright Act, the courts in copyright cases have long exercised substantial policymaking duties. Theories of statutory interpretation that demote the courts to a more passive role, commanding them merely to read Congress’s words and apply them exactly as written, make an especially poor fit for copyright law. The applicable statutory provisions, with few exceptions, simply are not written in such a way as to make such judicial passivity feasible, and two centuries of copyright history have accustomed the courts to a more coequal role in the development of copyright doctrine—a role Congress has repeatedly recognized and towards which it has repeatedly expressed approval.

The DMCA is of a piece with the rest of federal copyright law in that the text as enacted fairly cries out for a careful, nuanced parsing rather than wooden literalism. The DMCA, like the rest of the copyright statute, includes multiple provisions that seem to pull in conflicting

  1. See H.R. Rep. No. 94-1476, at 61 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5674 (explaining that Congress’s use of the words “to authorize” in 17 U.S.C. § 106 was “intended to avoid any questions as to the liability of contributory infringers”).
  2. See 17 U.S.C. § 101 (2006) (defining “work made for hire” to include any “work prepared by an employee within the scope of his or her employment”); id. § 201(b) (assigning copyright in such works made for hire to the employer).
  3. See, e.g., Hays v. Sony Corp. of Am., 847 F.2d 412, 416-17 (7th Cir. 1988).
  4. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2778-80 (2005) (creating new cause of action for inducing copyright infringement based upon Patent Act’s provision at 35 U.S.C. § 271(b) for inducing patent infringement); Sony Corp. of America, 464 U.S. at 439 (arguing that “the historic kinship between patent law and copyright law” makes it appropriate to draw common-law copyright principles from patent law); id. at 440-42 (recognizing new defense to secondary liability in copyright cases based upon Patent Act’s provision, 35 U.S.C. § 271(c), immunizing seller of “a staple article or commodity of commerce suitable for substantial noninfringing use”).