Page:Fair Circumvention.djvu/4

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[Vol. 74:1

borrow) factors and criteria that have developed under fair use en route to creating what I have labeled a separate doctrine of “fair circumvention” under the DMCA. Continued borrowing of the same sort may, in time, blur or even eliminate the distinction that presently exists between the scope of copyright’s fair use exception and the narrower, but growing, DMCA exception for fair circumvention. The fact that the borrowing is as yet incomplete, however, should not obscure the substantial amount that has already occurred or preclude further expansions of the fair circumvention doctrine in the future as an ordinary adjunct of the courts’ common-law powers to interpret and apply federal copyright law.

Part II of this Article briefly surveys the enactment and text of the DMCA before turning to a detailed consideration of several cases that have given the statute either a conspicuously broad, or a conspicuously narrow, reading. My review suggests that courts on both sides of the divide over the proper reading of the DMCA are issuing opinions that are difficult to square with the statutory text they purport to construe. Because the text alone appears inadequate to explain the actual results in DMCA cases, the inquiry expands in Part III of this Article to consider whether other principles can be invoked to support the courts’ decisionmaking. My principal conclusions here are that (1) courts may, and properly should, draw upon the broader corpus of federal copyright law to illuminate the meaning of the DMCA; (2) partly for historical reasons and partly because of the particular terms of the copyright statutes, federal copyright law leaves a comparatively broad domain available for judicial policymaking; and (3) the development of copyright’s fair use doctrine provides a useful model for the courts to follow in crafting exceptions to liability under the DMCA. This analysis also suggests that one of the criticisms leveled against some of the courts in DMCA cases—to wit, that the courts are substituting their own policy preferences for Congress’s—is ill-founded in view of the courts’ prominent historical role in the development of copyright law. Part IV seeks to guide further judicial development of the emerging fair circumvention doctrine by analogizing, first, to principles of fair use, and second, to policy distinctions that have been made in the DMCA cases to date. The goal here is to suggest that the courts should make explicit a debate that is currently occurring sotto voce under the surface of their DMCA opinions. To foster development of a coherent body of doctrine