Page:Fair Circumvention.djvu/45

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works are copied.”[1] Copyright protects works lying along a broad continuum between “creative or instructive”[2] works at one end and works of comparatively little originality (such as factual compilations) at the other.[3] The closer a work falls to the creative/expressive end of the continuum, the stronger the author’s claim of entitlement to restrict subsequent uses of the work, and the less room is available for colorable claims of fair use.[4] So, too, in the DMCA context, the courts might usefully differentiate between circumvention aimed at allowing the circumventer to access and copy a creative, expressive work (such as the movies at issue in Reimerdes) and circumvention that merely enables access to less expressive, more utilitarian works (as in Chamberlain and Lexmark).[5] Just as the fair use doctrine would do relatively little to defeat a claim of copyright infringement where works closer to the “core” of copyright protection are copied,[6] a doctrine of fair circumvention would impose comparatively weak limits on the reach of DMCA liability in similar circumstances.

Risks to intellectual property markets, to take another example, are readily encompassed within both the first and, especially, the fourth fair use factors. Here, too, it is analytically useful to distinguish between cases in which circumvention of a DRM mechanism threatens to provide a complete substitute for authorized purchases of an expressive work (the situation in Reimerdes),[7] and cases in which circumvention merely exposes a maker of consumer products to additional marketplace competition (as in Chamberlain and Lexmark). Copyright protects holders from certain types of economic injury—principally, those stemming from substitution of the defendant’s copy for the

  1. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
  2. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1117 (1990).
  3. See Feist Publ’ns, Inc. v. Rural Tele. Serv. Co., Inc., 499 U.S. 340, 345-51 (1991) (explaining minimum level of originality required for copyright protection).
  4. See Campbell, 510 U.S. at 586.
  5. See, e.g., supra notes 179-184 and accompanying text (explaining how copyright’s functionality doctrine may provide a more robust explanation for the courts’ results in Chamberlain and Lexmark than the courts’ stated justifications due to the predominantly utilitarian character of the works sought to be protected in those cases).
  6. But see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984) (suggesting that fair use doctrine protects even copying of core creative, expressive works in some circumstances).
  7. The weak encryption provided by the CSS system for DVD discs, the subject of the Reimerdes decision, was readily broken by a teenage computer user. See supra notes 37-40 and accompanying text. In consequence, unencrypted copies of formerly CSS-protected video content leaked onto the internet, where they continue to circulate today. See, e.g., Peter Biddle et al., The Darknet and the Future of Content Protection, in Digital Rights Management: Technological, Economic, Legal and Political Aspects 344, 359 (Eberhard Becker et al. eds., 2003). The DMCA does nothing to prevent such no-longer-encrypted content from circulating online, although the general remedies for infringement of copyright remain available. See Posting of Edward Felten to Freedom to Tinker, (Aug. 17, 2005 01:36 EST) (“Files arrive on the darknet having already been stripped of any technological protection measures . . . . And you can’t circumvent a TPM that isn’t there.”).