Page:Fair Circumvention.djvu/49

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FAIR CIRCUMVENTION

would hardly represent judicial usurpation of lawmaking authority for the courts to construe the statute consistently with its background.

The objection from the opposite direction would be that construing the DMCA as a part of the broader corpus of copyright law threatens, rather than protects, the public’s interest in access to expressive works, in view of the generally pro-plaintiff orientation of the courts in copyright cases.[1] I readily concede that the conception of copyright as predominantly a vehicle for advancing public ends, although firmly grounded in the text of the Constitution,[2] has met with a chillier reception from the courts in recent decades.[3] But it has hardly disappeared from the landscape. Courts and commentators alike continue to speak of copyright’s value in promoting broader public ends involving the availability of expressive works, not merely as a mechanism for transferring wealth from the public to copyright holders.[4] And the scope of protections available under copyright law for the public interest, even under a restrictive view, surely compare favorably with the most restrictive current interpretations of the DMCA. Analogizing from the latter to the former, accordingly, ought to pose no serious risk of contracting, and some possibility of enlarging, the sphere of viable public uses of digital copyrighted works.

V. Conclusion

The institutional response of the courts to the enactment of the DMCA has been puzzling. Federal copyright law has long developed as an exercise in interbranch partnership, with Congress and the courts generally acting as coequal partners in the development of doctrine. The courts have played particularly important roles in limiting the potentially undesirable reach of copyright’s liability and penalty provisions, which might readily threaten other expressive values if applied strictly as written. Under the DMCA, in contrast, the courts seem to have ceded a

  1. See, e.g., Benkler, supra note 92, at 441 (lamenting chilling effects created by restrictive judicial interpretations of fair use).
  2. See U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings . . . .”) (emphasis added). Recent historical scholarship identifies the “promotion of progress” as a substantive objective that the Framers intended as a constraint upon legislative authority. See Dotan Oliar, Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, 94 Geo. L.J. 1771 (2006).
  3. Compare Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“[P]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”), with Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003) (“[C]opyright law serves public ends by providing individuals with an incentive to pursue private ones.”).
  4. See, e.g., Eldred, 537 U.S. at 219-20 (observing that copyright law, including the exceptions to copyright holders’ exclusive rights, is intended to promote dissemination of expressive works); Lloyd L. Weinreb, Fair’s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1150 (1990) (“Fair use does not exclude consideration of factors not related to the utilitarian justification for copyright—other social values or, more simply, fairness.”).