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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  10 In an attempt to answer the above questions, an objective and systematic analyses of existing case law will by necessary. DMCA is a neoteric law hence the pool of cases for case law is very limited. Three cases were specifically selected for analyses in this study. These cases constitute about fifty percent of all the cases addressed under DMCA in general. These cases were selected because they address the ‘anti-circumvention’ and the ‘anti-trafficking’ issues directly. These two concepts are the main concern of section 1201 of DMCA and the concern of this research. The prevailing methodology for this research will therefore be a systematic analysis of the case law to see who won in each of these cases. Why did they win? What issues were important to the courts? And how did the courts interpret the law in each of these cases? Did any of the courts consider a fair use or first amendment defense? What were their rulings on either of these doctrines? These cases are: RealNetworks, Inc. v. Streambox, Inc. (No. C99-2070P, 2000 U.S. Dist. LEXIS 1889); Universal Studios v. Reimerdes (111 F. Supp. 2d 346 S.D.N.Y. 2000); and Sony Computer Entertainment Inc. v. Gamemasters Inc. (87 F. Supp. 2d 976, 54 U.S.P.Q. 2d (BNA) 1401 (N.D. Cal 1999); Theory The theoretical framework for the study is the interest group theory as a subcategory of public choice theory. Public choice theory is related to the well pedigreed public trust doctrine. Public trust doctrine made its modern debut with the 1970 article by Joseph Sax. Sax argues in this article that public trust law is, at its core, a procedure that allows the courts to amend perceived imperfections in the legislative and administrative process. 24 Sax’s explication of the public trust doctrine is in agreement with the more recent public choice theory. Public choice theory in general argues that minority interests that are well focused and established can get their way in legislatures at the expense of dispersed majorities. As a result of this disparity in access to or influence with decision-makers, the democratic process might be 23 Jessica Litman, The Public Domain, 39 Emory L. J. 965 (1990). 24 Margaret Chon, Postmodern “Progress”: Reconsidering the Copyright and Patent Power, 43 Depaul L. Rev. 97, 110 (1993). At 102 (Citing Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).

Authors: Abah, Adedayo.
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10
In an attempt to answer the above questions, an objective and systematic analyses of
existing case law will by necessary. DMCA is a neoteric law hence the pool of cases for case law
is very limited. Three cases were specifically selected for analyses in this study. These cases
constitute about fifty percent of all the cases addressed under DMCA in general. These cases
were selected because they address the ‘anti-circumvention’ and the ‘anti-trafficking’ issues
directly. These two concepts are the main concern of section 1201 of DMCA and the concern of
this research. The prevailing methodology for this research will therefore be a systematic
analysis of the case law to see who won in each of these cases. Why did they win? What issues
were important to the courts? And how did the courts interpret the law in each of these cases?
Did any of the courts consider a fair use or first amendment defense? What were their rulings on
either of these doctrines?
These cases are:
RealNetworks, Inc. v. Streambox, Inc. (No. C99-2070P, 2000 U.S. Dist. LEXIS 1889);
Universal Studios v. Reimerdes (111 F. Supp. 2d 346 S.D.N.Y. 2000); and
Sony Computer Entertainment Inc. v. Gamemasters Inc. (87 F. Supp. 2d 976, 54 U.S.P.Q. 2d
(BNA) 1401 (N.D. Cal 1999);
Theory
The theoretical framework for the study is the interest group theory as a subcategory of
public choice theory. Public choice theory is related to the well pedigreed public trust doctrine.
Public trust doctrine made its modern debut with the 1970 article by Joseph Sax. Sax argues in
this article that public trust law is, at its core, a procedure that allows the courts to amend
perceived imperfections in the legislative and administrative process.
24
Sax’s explication of the
public trust doctrine is in agreement with the more recent public choice theory.
Public choice theory in general argues that minority interests that are well focused and
established can get their way in legislatures at the expense of dispersed majorities. As a result of
this disparity in access to or influence with decision-makers, the democratic process might be
23
Jessica Litman, The Public Domain, 39 Emory L. J. 965 (1990).
24
Margaret Chon, Postmodern “Progress”: Reconsidering the Copyright and Patent Power, 43 Depaul L. Rev. 97,
110 (1993). At 102 (Citing Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 471 (1970).


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