Page:Fair Circumvention.djvu/47

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2008]
47
FAIR CIRCUMVENTION

But to copy the excerpt from the DVD, I must bypass CSS—and that, the Reimerdes opinion warns me sternly, I may not do.[1] When the filmmakers sue me and my employer for violating the DMCA, what can we do? The Library of Congress recently provided a DMCA exemption permitting the extraction of clips from CSS-encrypted DVDs, but it does not apply to law professors.[2] If my employer and I must rely (as the courts have said we must) solely upon the statutory text of the DMCA, then our defense is colorable, but hardly bulletproof—according to cases like Reimerdes, the text of the statute forbids circumvention even for fair uses, notwithstanding Congress’s stated intention to the contrary. The White Paper and the WIPO Treaties, however, both seem to approve of circumvention undertaken for such noninfringing purposes.[3] “Fair circumvention” would permit the courts in DMCA cases to consult these outside sources for guidance, ultimately yielding greater doctrinal consistency between the defenses available to claims for copyright infringement and for violations of the DMCA.

By citing these examples, I do not mean to suggest that copyright’s fair use doctrine should operate as an outer boundary on the scope of a permissible fair circumvention defense under the DMCA. My point is less ambitious—even if the courts do not transplant copyright’s fair use doctrine, root and branch, into the somewhat different soil of the DMCA,[4] it is nevertheless true that existing principles of fair use provide at least some analytical guidance upon which the courts profitably may rely as they begin to develop a separate body of “fair circumvention” jurisprudence.[5] What future directions that body of law

  1. See supra Part II.B.1.
  2. See 2006 Final Rule, supra note 28. The new exemption allows circumvention of DRM mechanisms protecting “[a]udiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.” 37 C.F.R. § 201.40(b)(1) (2007). By its terms, this exemption is too narrow to allow a law professor to copy an excerpt from his or her personal copy of a copyrighted motion picture.
  3. See supra notes 68-71 and accompanying text.
  4. See Denicola, supra note 11, at 220-32; Tian, supra note 11, at 779-81.
  5. Uncertainty and unpredictability are frequently cited as undesirable characteristics of contemporary fair use law that preclude the doctrine from being reduced to a set of clearly established systematic rules and may inhibit users from engaging in uses that, even if they would ultimately be found lawful, rest upon debatable claims of entitlement to fair use protection. See Armstrong, supra note 11, at 52, 70-74; see also James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882, 890 (2007) (labeling fair use “famously ambiguous”). This uncertainty stems in part from the case-specific balancing inquiry mandated by the statute—which, the Supreme Court has warned, “is not to be simplified with bright-line rules.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). By inviting the courts to draw upon fair use principles, at least initially, in formulating fair circumvention doctrine, the risk of multiplying the undesirable traits of unpredictability and uncertainty may seem apparent. Two related observations, however, may point the way towards mitigating the risk of such doctrinal indeterminacy. First, to say that fair use doctrine as a whole suffers from an unpredictability problem, see David Nimmer, “Fairest of Them All” and Other Fairy Tales of Fair Use, 66 Law & Contemp. Probs. 263 (2003), is not to say that the outcome of any individual fair use dispute is necessarily unknowable in advance: some uses are clearly fair. See, e.g., Lenz v. Universal Music Corp., No. C 07-3783 JF, 2008 WL 3884333, at *4 (N.D. Cal. Aug. 20, 2008) (dismissing copyright holder’s concerns about unpredictability of fair use); id. (“Undoubtedly, some evaluations of fair use will be more complicated than others.”). Second, as Michael Madison has demonstrated, some of the putative confusion surrounding the fair use doctrine vanishes upon careful identification of certain factual commonalities in the courts’ decisions. These commonalities may be ascertained in advance and employed to aid in planning for both litigants and courts, potentially making subsequent case outcomes more predictable. See Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 Wm. & Mary L. Rev. 1525, 1645-65 (2004).