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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  11 impaired. To correct this impairment in the democratic processes, a judicial review of legislation resulting from such well-focused minority-interest based activities might be necessary. 25 Interest group theory, a subcategory of public choice theory, as proposed by A. Beckler, William Landes and Richard Posner, generally argue that the legislative process is a process whereby political choices are determined by the efforts of individuals and groups to further their own interests. This is often called “rent –seeking.” 26 To offset the consequences of rent-seeking legislation on society, this theory suggests an enhanced judicial role often called judicial activism. This theory serves as a springboard for this study and provides a framework to address the issues presented by DMCA. This theory is relevant to this research because the presumption of this study is that the copyright law in the United States has at its core, the belief that ideas and free expression of them are essential to a democratic society. Thus, the constitutional mandate for copyright law gave Congress the power to grant authors exclusive rights in their works for a limited time in order to “promote the progress of science and useful arts.” 27 TyAnna Herrington puts it succinctly when she stated that: [T]he framers of the Constitution acknowledged that knowledge forms the basis of a progressive society and that information and the possibility for learning should be available to all members of the society. Freedom of the press is based on this same policy. 28 What this means for the current study is that ideas and information belong to the public and this was the premise for the Copyright Act in the United States. Copyright law is, therefore, a means to assure that the public domain will not suffer shortage of useful ideas and information. Based on this, interest group theory serves as a useful theory to examine DMCA. DMCA is a copyright law and hence, it is required to have at its core the interest of the public. Does this law serve this interest? If it does not, are the conditions ripe for a judicial review of the law? 25 See generally, Daniel Farber and Phillip Frickey, Law and Public Choice. Chicago: University of Chicago Press, 6-9, 1991 and Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial review? 101 Yale Law Journal 31, 1991 26 Daniel Farber and Phillip Frickey, Law and Public Choice. Chicago: University of Chicago Press, 17 1991. 27 U.S. CONST. Art. I, § 8.

Authors: Abah, Adedayo.
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11
impaired. To correct this impairment in the democratic processes, a judicial review of
legislation resulting from such well-focused minority-interest based activities might be
necessary.
25
Interest group theory, a subcategory of public choice theory, as proposed by A. Beckler,
William Landes and Richard Posner, generally argue that the legislative process is a process
whereby political choices are determined by the efforts of individuals and groups to further their
own interests. This is often called “rent –seeking.”
26
To offset the consequences of rent-seeking
legislation on society, this theory suggests an enhanced judicial role often called judicial
activism.
This theory serves as a springboard for this study and provides a framework to address
the issues presented by DMCA. This theory is relevant to this research because the presumption
of this study is that the copyright law in the United States has at its core, the belief that ideas
and free expression of them are essential to a democratic society. Thus, the constitutional
mandate for copyright law gave Congress the power to grant authors exclusive rights in their
works for a limited time in order to “promote the progress of science and useful arts.”
27
TyAnna
Herrington puts it succinctly when she stated that:
[T]he framers of the Constitution acknowledged that knowledge forms the basis of a
progressive society and that information and the possibility for learning should be
available to all members of the society. Freedom of the press is based on this same
policy.
28
What this means for the current study is that ideas and information belong to the public and this
was the premise for the Copyright Act in the United States. Copyright law is, therefore, a means
to assure that the public domain will not suffer shortage of useful ideas and information.
Based on this, interest group theory serves as a useful theory to examine DMCA. DMCA
is a copyright law and hence, it is required to have at its core the interest of the public. Does this
law serve this interest? If it does not, are the conditions ripe for a judicial review of the law?
25
See generally, Daniel Farber and Phillip Frickey, Law and Public Choice. Chicago: University of Chicago Press,
6-9, 1991 and Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial review? 101 Yale Law
Journal 31, 1991
26
Daniel Farber and Phillip Frickey, Law and Public Choice. Chicago: University of Chicago Press, 17 1991.
27
U.S. CONST. Art. I, § 8.


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