Page:Fair Circumvention.djvu/44

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44
[Vol. 74:1
BROOKLYN LAW REVIEW

The answer is not, it seems to me, for the courts to come to an agreement on what the literal text of the DMCA really requires. Such strict formalism is a recipe for circularity, given that the DMCA (no less than the rest of the copyright statute) includes provisions pointing in multiple directions. The statute speaks with many voices at once: punish circumvention, but protect libraries and schools;[1] punish trafficking, but allow computer security and encryption researchers to share their discoveries;[2] “protect[ ] . . . [the] right[s] of a copyright owner,” but without “affect[ing] . . . fair use.”[3] At the end of the day, the statute may not have a single clear meaning to discover.[4]

That is not to say, however, that the courts are left without guidance. To the contrary, just as other copyright doctrines offer explanatory tools the courts may employ in DMCA cases,[5] the fair use doctrine itself gives the courts many analogous concepts upon which a “fair circumvention” doctrine might rest. The discussion that follows will begin by assessing what copyright doctrine, including principles of fair use, might teach future litigants and courts about the proper construction of the DMCA, then conclude by evaluating possible arguments against this approach.

A. From Fair Use to Fair Circumvention

The fair use provision of the copyright statute gives the courts a nonexclusive list of factors to consider in determining whether any challenged use is fair: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”[6]

It is not difficult to imagine ways in which these same factors might be profitably analogized to explain limits on the reach of DMCA liability under the rubric of “fair circumvention.” The second fair use factor, for example—“the nature of the copyrighted work”—recognizes that copyright law does not extend exactly the same level of protection to all works. Rather, as the Supreme Court has explained, “some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former

  1. See 17 U.S.C. § 1201(a)(1)(A), (d) (2006).
  2. See id. § 1201(a)(2), (g), (j).
  3. See id. § 1201(b), (c)(1).
  4. As suggested above, the DMCA’s definitional provisions seem to pose particular challenges to textual formalism. See supra notes 211-224, 141-145 and accompanying text.
  5. See supra notes 178-184 and accompanying text.
  6. 17 U.S.C. § 107 (2006).