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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  18 that could be played on the PlayStation are those games licensed for distribution in the same territory as that of the console sale. 68 The court found that the Game Enhancer circumvents the mechanism on the PlayStation console that ensures the console operates only when encrypted data is read from an authorized CD-ROM 69 hence, allowing games made by SCEA for foreign markets to be played on the domestic PlayStation console. The primary function of the Game Enhancer is thus to circumvent ‘a technological measure’ thereby violating the DMCA § 1201(a)(2)(A). 70 The court ignored other uses of the Game Enhancer including modifications of the game to make is easier or more difficult for the players. This function of the device does not interfere with the underlying software made by Sony. Defendants were also charged with making color copies of SCEA video game covers to display Sony second-hand games for sale in their inventory. 71 Defendants argue fair use for the display of color copies of game covers to prevent shoplifting. The court rejected the defendants’ fair use claim and issued a preliminary injunction order that enjoined the sale or advertising of the Game Enhancer or any other product designed for similar purposes. 72 Discussion How is fair use concern addressed in § 1201 of the DMCA? Nothing in the language of the DMCA expressly forbids or constraints fair use doctrine. As explicitly stated in the DMCA section 1201©(1) “nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use.” 73 This statement seems straightforward enough to indicate that the preservation of fair use doctrine was important in the deliberations on enacting DMCA as a public law. The problem stems from how to interpret this consideration. As Eddan Katz succinctly puts it, “The tension over the interpretation of this exemption is whether the defenses can be applied to violations of the anti-circumvention provisions or whether they only apply in cases of copyright infringement.” 74 It thus seems like the confusion stems from the intention of Congress in terms of liability toward the individual who circumvents a technological measure for uses that are non-infringing on owners’ rights. 68 Id. at 4 69 Id. at 11 70 Id. 71 Id. at 12 72 Id. at 12-13 73 17 U.S.C. 1201©(1) 74 Eddan Katz, (2001) supra note at 6.

Authors: Abah, Adedayo.
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18
that could be played on the PlayStation are those games licensed for distribution in the same
territory as that of the console sale.
68
The court found that the Game Enhancer circumvents the mechanism on the PlayStation
console that ensures the console operates only when encrypted data is read from an authorized
CD-ROM
69
hence, allowing games made by SCEA for foreign markets to be played on the
domestic PlayStation console. The primary function of the Game Enhancer is thus to circumvent
‘a technological measure’ thereby violating the DMCA § 1201(a)(2)(A).
70
The court ignored
other uses of the Game Enhancer including modifications of the game to make is easier or more
difficult for the players. This function of the device does not interfere with the underlying
software made by Sony. Defendants were also charged with making color copies of SCEA video
game covers to display Sony second-hand games for sale in their inventory.
71
Defendants argue
fair use for the display of color copies of game covers to prevent shoplifting. The court rejected
the defendants’ fair use claim and issued a preliminary injunction order that enjoined the sale or
advertising of the Game Enhancer or any other product designed for similar purposes.
72
Discussion
How is fair use concern addressed in § 1201 of the DMCA? Nothing in the language of
the DMCA expressly forbids or constraints fair use doctrine. As explicitly stated in the DMCA
section 1201©(1) “nothing in this section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use.”
73
This statement seems straightforward enough to
indicate that the preservation of fair use doctrine was important in the deliberations on enacting
DMCA as a public law. The problem stems from how to interpret this consideration. As Eddan
Katz succinctly puts it, “The tension over the interpretation of this exemption is whether the
defenses can be applied to violations of the anti-circumvention provisions or whether they only
apply in cases of copyright infringement.”
74
It thus seems like the confusion stems from the
intention of Congress in terms of liability toward the individual who circumvents a technological
measure for uses that are non-infringing on owners’ rights.
68
Id. at 4
69
Id. at 11
70
Id.
71
Id. at 12
72
Id. at 12-13
73
17 U.S.C. 1201©(1)
74
Eddan Katz, (2001) supra note at 6.


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