Page:Fair Circumvention.djvu/46

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[Vol. 74:1

plaintiff’s[1]—but not all economic injuries from copying are redressable as copyright infringement.[2] Settled principles of fair use, again, may provide a useful guide to courts in developing a doctrine of fair circumvention under the DMCA.[3]

Finally, consider the problem of circumvention undertaken for noninfringing purposes. Suppose I try to spark a discussion among my Copyright students about the fair use claim at issue in Hustler Magazine, Inc. v. Moral Majority, Inc.,[4] the infamous Jerry Falwell Campari ad parody case.[5] To place the dispute in its historical context as part of the long-running feud between the late Reverend Falwell and the publisher of Hustler magazine, I wish to show my students a one-minute clip from director Miloš Forman’s acclaimed motion picture, The People vs. Larry Flynt,[6] which includes a subplot revolving around Flynt’s copyright infringement lawsuit.[7] To avoid losing the DVD in my office or leaving it in the classroom, I wish to extract a one-minute excerpt from the DVD onto my laptop, which I can then hook up to the classroom projector.[8] Copyright law would surely permit this; mine is a paradigmatic fair use—a minuscule excerpt (third factor) used for nonprofit educational reasons (first factor) with no likelihood of impairing, and indeed some prospect of benefiting, the market for sales or exhibitions of authorized copies of The People vs. Larry Flynt (fourth factor).[9]

  1. See Leval, supra note 254, at 1125; see also supra note 239 and accompanying text.
  2. See, e.g., Campbell, 510 U.S. at 591-92 (“[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.”); see also supra note 38 (noting cases declaring reverse engineering of computer software not to be infringing even where the resulting increase in market competition harms the copyright holder).
  3. Cf. 17 U.S.C. § 1201(f) (2006) (establishing DMCA safe harbor for the development of interoperable products in certain circumstances).
  4. 796 F.2d 1148 (9th Cir. 1986).
  5. For a summary of the parties’ dispute, see id. at 1149-50. Additional background information, including the parody advertisement at issue in the case, is available at
  6. The People vs. Larry Flynt (Columbia Pictures Corporation 1996).
  7. In the film, as in real life, Falwell reacts to Flynt’s tasteless parody of a well-known advertising campaign for Campari by mass-mailing unauthorized copies of Flynt’s advertisement in a fundraising letter to members of Falwell’s own Moral Majority. Id. Sadly, if understandably, the film soon leaves the copyright issue by the wayside, focusing instead on the First Amendment issues in the case that ultimately went to the Supreme Court as Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). In the real world, the Ninth Circuit, by a 2-1 vote, accepted Falwell’s fair use defense to Flynt’s claim for copyright infringement, even though the purpose of Falwell’s copying was clearly (indeed, solely) commercial. Hustler Magazine, 796 F.2d at 1152, 1156. The majority gave substantial weight to the political and social purpose of Falwell’s copying, which was aimed, it said, at “generat[ing] moral outrage.” Id. at 1156.
  8. For discussions of similar scenarios, highlighting the potential effects of the DMCA in chilling educational fair uses, see Landau, supra note 20, at 297-98; William W. Fisher & William McGeveran, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age 23-30 (Berkman Ctr. for Internet & Soc’y Harv. L. Sch., Research Publication No. 2006-09, 2006), available at; Denicola, supra note 11, at 209-10.
  9. I am sensitive to the risk that even to articulate a detailed fair use justification for such a clearly lawful use may be taken as a concession that such a justification is necessary, thereby ceding “too much legitimacy to what sensible people should recognize as extreme copyright claims.” Rebecca Tushnet, Sight, Sound, and Meaning: Teaching Intellectual Property with Audiovisual Materials, 52 St. Louis U. L.J. 891, 903 (2008). I offer the example here only to highlight the (analytically absurd, in my view) disconnect between conduct that is clearly lawful under copyright, yet just as clearly punishable under the DMCA as it has hitherto been construed.