All Academic, Inc. Research Logo

Info/CitationFAQResearchAll Academic Inc.
Document

Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  12 Using the interest group theory as a guiding light, this study proposes both a legislative history of DMCA and case law analysis of the cases decided so far based on this law. The purpose of which will be to determine whose interests are being served and if the public is not being adequately served by this law, who benefits by the law and if there is a possibility of judicial review of the law as the public choice theory postulates. Fair Use Concerns in DMCA: Nothing in the language of section 1201 of DMCA prohibits or diminishes the fair use doctrine. As a matter of fact, section 1201 (B)(c) (1) states that, “Nothing in this section shall effect the rights, remedies, limitations, or defenses to copyright infringement , including fair use, under this title.” 29 At first glance, there seem to be adequate interest in and protection of the doctrine of fair use in the DMCA. However, the anti-circumvention provisions from the same section makes fair use of an electronic based information that is protected by a technological measure very difficult if not impossible. The anti-circumvention provision was designed to combat piracy by making it a crime to circumvent the digital walls erected by copyright owners to protect their work. The problem with this is that even when you have lawfully obtained a copy of a digitally protected work, to make any lawful use of the work which might include making a copy for classroom use or research work, one has to obtain permission of the copyright owner. Any self-help attempt to make fair use of the work would render one liable for circumvention of a technological protection measure. In order words, in the analog world, if you buy a book, you can make a copy of a paragraph in the book for classroom or personal use without getting permission from the rights owner. This will be considered fair use. In the digital world under DMCA, this will still be considered fair use as long as the work is not protected by a technological measure. If the work is protected by any technological measure, any attempt to circumvent the technological measure regardless of the reason for doing so, renders one liable for circumvention. Therein lies the problem of DMCA for fair use. Therefore, while the doctrine of fair use was not directly impinged upon in any wording of DMCA it would seem that in practice, there could hardly be any fair use under DMCA. This is especially so in an age where most works already in the public 28 TyAnna Herrington, Controlling Voices: Intellectual Property, Humanistic Studies and the Internet 36, (Carbondale: Southern Illinois University Press, 2001). 29 DMCA 1201 (B) (c) (1)

Authors: Abah, Adedayo.
first   previous   Page 12 of 24   next   last



background image
12
Using the interest group theory as a guiding light, this study proposes both a legislative history of
DMCA and case law analysis of the cases decided so far based on this law. The purpose of
which will be to determine whose interests are being served and if the public is not being
adequately served by this law, who benefits by the law and if there is a possibility of judicial
review of the law as the public choice theory postulates.
Fair Use Concerns in DMCA:
Nothing in the language of section 1201 of DMCA prohibits or diminishes the fair use
doctrine. As a matter of fact, section 1201 (B)(c) (1) states that, “Nothing in this section shall
effect the rights, remedies, limitations, or defenses to copyright infringement , including fair use,
under this title.”
29
At first glance, there seem to be adequate interest in and protection of the
doctrine of fair use in the DMCA. However, the anti-circumvention provisions from the same
section makes fair use of an electronic based information that is protected by a technological
measure very difficult if not impossible.
The anti-circumvention provision was designed to combat piracy by making it a crime to
circumvent the digital walls erected by copyright owners to protect their work. The problem with
this is that even when you have lawfully obtained a copy of a digitally protected work, to make
any lawful use of the work which might include making a copy for classroom use or research
work, one has to obtain permission of the copyright owner. Any self-help attempt to make fair
use of the work would render one liable for circumvention of a technological protection measure.
In order words, in the analog world, if you buy a book, you can make a copy of a
paragraph in the book for classroom or personal use without getting permission from the rights
owner. This will be considered fair use. In the digital world under DMCA, this will still be
considered fair use as long as the work is not protected by a technological measure. If the work is
protected by any technological measure, any attempt to circumvent the technological measure
regardless of the reason for doing so, renders one liable for circumvention. Therein lies the
problem of DMCA for fair use. Therefore, while the doctrine of fair use was not directly
impinged upon in any wording of DMCA it would seem that in practice, there could hardly be
any fair use under DMCA. This is especially so in an age where most works already in the public
28
TyAnna Herrington, Controlling Voices: Intellectual Property, Humanistic Studies and the Internet 36,
(Carbondale: Southern Illinois University Press, 2001).
29
DMCA 1201 (B) (c) (1)


Convention
Convention is an application service for managing large or small academic conferences, annual meetings, and other types of events!
Submission - Custom fields, multiple submission types, tracks, audio visual, multiple upload formats, automatic conversion to pdf.
Review - Peer Review, Bulk reviewer assignment, bulk emails, ranking, z-score statistics, and multiple worksheets!
Reports - Many standard and custom reports generated while you wait. Print programs with participant indexes, event grids, and more!
Scheduling - Flexible and convenient grid scheduling within rooms and buildings. Conflict checking and advanced filtering.
Communication - Bulk email tools to help your administrators send reminders and responses. Use form letters, a message center, and much more!
Management - Search tools, duplicate people management, editing tools, submission transfers, many tools to manage a variety of conference management headaches!
Click here for more information.

first   previous   Page 12 of 24   next   last

©2012 All Academic, Inc.