Page:Fair Circumvention.djvu/5

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2008]
5
FAIR CIRCUMVENTION

under the DMCA, the courts should engage in a forthright balancing of the interests at stake in DMCA cases. The courts should not discount copyright holders’ interests in protecting their works, nor knowledgeable consumers’ interests in making ordinary uses of lawfully acquired electronics products, but should simply make explicit the factors they employ in declaring one or the other set of interests to predominate in a given case.

II. Judicial Constructions of the DMCA

Because the courts in DMCA cases have declared repeatedly that their decisions rest solely on a consideration of the statute’s literal text, it is pertinent to begin by reviewing the circumstances that led Congress to enact the statute and the language it selected to effectuate its intent. The sections that follow will summarize the background and text of the statute’s anti-circumvention provisions before turning to a critical review of some of the key cases that have arisen under the DMCA to date.

A. Statutory Background

In 1996, at the urging of the Clinton Administration,[1] the World Intellectual Property Organization (“WIPO”) promulgated two new treaties dealing, among other issues, with what was perceived as a growing threat of copyright infringement in the digital arena. The treaties proposed to authorize content owners to deploy technological measures that could effectively prevent such infringements from occurring by limiting users’ practical ability to access or copy the protected works, except upon terms specified by the content owners. It was broadly understood, however, that such access and copying controls could never be designed to be perfectly effective in all circumstances—sufficiently sophisticated users could circumvent the protections and access or copy the work.[2] To forestall this outcome, the 1996 WIPO treaties required

  1. A three-year study by a White House working group culminated in the 1995 publication of Intellectual Property and the National Information Infrastructure, known as the “White Paper.” Bruce A. Lehman, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) [hereinafter “White Paper”], available at http://www.uspto.gov/go/com/doc/ipnii/ipnii.pdf. The White Paper recommended that Congress adopt new legislation

    to prohibit the importation, manufacture or distribution of any device . . . the primary

    purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive

    rights under Section 106 [of the Copyright Act].

    Id. at 230. When initial efforts to adopt legislation enacting the White Paper’s recommendations encountered resistance in Congress, however, the Administration turned to the WIPO process instead. See Jessica Litman, Digital Copyright 122-30 (2001).

  2. See supra note 2.