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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  15 Attorneys for Streambox argued fair use based on the case of Sony Corporation v. Universal Studio. 43 They argued that the Streambox products have substantial non-infringing uses. In addressing the fair use defense, the court stated that the Sony doctrine did not apply to the anti-circumvention device section of section 1201 of DMCA. 44 The court further stated that the purpose of the circumvention was irrelevant to the anti-circumvention devise clause of the DMCA 45 because “Congress specifically prohibited the distribution of the tools by which such circumvention could be accomplished.” 46 The court, citing Nimmer on copyright, stated that section 1201 of DMCA holds liable manufacturers of consumer products with substantial non- infringing uses despite the fact that the Sony doctrine would release them from liability. 47 In the RealNetworks’ case, the court, in addressing fair use, basically held that fair use or any other form of allowable use cannot be a defense to a charge of anti-circumvention device ban as prescribed in the DMCA. Universal City Studios v. Reimerdes 48 In the case of Universal City Studios v. Reimerdes, plaintiff, Universal Studios developed an encryption system for DVDs to prevent the piracy of their movies on DVD. This encryption system is called Content Scrambling System (CSS). 49 Using encryption algorithm, the digital sounds and graphic files on a DVD are embedded on the system labeled CSS. To decrypt the encryption, an appropriate decryption algorithm using a series of keys stored on both the DVD and the DVD player must be employed. 50 The content of DVDs can be viewed only after the encryption has been decrypted. The technology to decrypt is licensed by DVD Copy Control Association which is made up of manufacturers of consumer electronics and movie studios. 51 In the process of a reverse-engineering of a licensed DVD player, Jon Johansen, a teenager in Norway with two unnamed individuals developed a program that was capable of decrypting the CSS encryption which they called DeCSS. 52 They posted this program on a 43 464 U.S. 417 (1984) (The Court held that manufacturers of the VTRs cannot be held liable for contributory copyright infringement for private home viewing of TV programs recorded. The Court held the recording and hoem viewing to be fair use). 44 Katz, 2001 at 4 45 Id. at 4 46 RealNetworks, 2000 U.S. Dist. LEXIS 1889 at 22. 47 Id. 48 Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d. 294, (S.D.N.Y. 2000). 49 Id. at 309-10 50 Id. at 310 51 Id. 52 Id. at 311

Authors: Abah, Adedayo.
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15
Attorneys for Streambox argued fair use based on the case of Sony Corporation v.
Universal Studio.
43
They argued that the Streambox products have substantial non-infringing
uses. In addressing the fair use defense, the court stated that the Sony doctrine did not apply to
the anti-circumvention device section of section 1201 of DMCA.
44
The court further stated that
the purpose of the circumvention was irrelevant to the anti-circumvention devise clause of the
DMCA
45
because “Congress specifically prohibited the distribution of the tools by which such
circumvention could be accomplished.”
46
The court, citing Nimmer on copyright, stated that
section 1201 of DMCA holds liable manufacturers of consumer products with substantial non-
infringing uses despite the fact that the Sony doctrine would release them from liability.
47
In the
RealNetworks’ case, the court, in addressing fair use, basically held that fair use or any other
form of allowable use cannot be a defense to a charge of anti-circumvention device ban as
prescribed in the DMCA.
Universal City Studios v. Reimerdes
48
In the case of Universal City Studios v. Reimerdes, plaintiff, Universal Studios developed
an encryption system for DVDs to prevent the piracy of their movies on DVD. This encryption
system is called Content Scrambling System (CSS).
49
Using encryption algorithm, the digital
sounds and graphic files on a DVD are embedded on the system labeled CSS. To decrypt the
encryption, an appropriate decryption algorithm using a series of keys stored on both the DVD
and the DVD player must be employed.
50
The content of DVDs can be viewed only after the
encryption has been decrypted. The technology to decrypt is licensed by DVD Copy Control
Association which is made up of manufacturers of consumer electronics and movie studios.
51
In the process of a reverse-engineering of a licensed DVD player, Jon Johansen, a
teenager in Norway with two unnamed individuals developed a program that was capable of
decrypting the CSS encryption which they called DeCSS.
52
They posted this program on a
43
464 U.S. 417 (1984) (The Court held that manufacturers of the VTRs cannot be held liable for contributory
copyright infringement for private home viewing of TV programs recorded. The Court held the recording and hoem
viewing to be fair use).
44
Katz, 2001 at 4
45
Id. at 4
46
RealNetworks, 2000 U.S. Dist. LEXIS 1889 at 22.
47
Id.
48
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d. 294, (S.D.N.Y. 2000).
49
Id. at 309-10
50
Id. at 310
51
Id.
52
Id. at 311


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