19
According to David Nimmer, fair use received “extended discussion in the legislative
history for section 1201, particularly in the Commerce Committee of the House of
Representatives.”
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According to the House Judiciary Committee as reported by Nimmer, the
provision of 1201 was to impose absolute liability on those who do not have authorized access to
a work. However, once they obtain authorized access, then fair use can come into play.
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The
House Commerce Committee also devoted a lot of attention to the dangers inherent in the
position of the House Judiciary Committee. This refers to the tendency to lock up works in
perpetuity because the control of access by content owners implicates the control of content
through a charge for access and even in some cases a charge for use. Another problem with
controlling access is that even if the work is already in the public domain, by putting it under
technological lock and key, both access to and use of the work become the property of the owner
of lock and key where each individual would have to negotiate for access. Theoretically,
therefore, section 1201 preserves the fair use doctrine as applicable in the pre-digital era.
Practically, the anti-circumvention clause does not allow a fair use defense to a charge of
violation of the anti-circumvention clause. The anti-circumvention clause does not acknowledge
the purpose of the circumvention to which fair use might be useful as a defense. To better
explicate the role of fair use in the digital era, one is charged with looking to the courts to
determine what issues the courts are contemplating when faced with a DMCA section 1201
violation.
How are courts interpreting the issues in DMCA-related cases? The cases analyzed above
are helpful in providing an answer to this question. In the RealNetworks case, the court did not
consider the legitimacy of the use or whether the use was infringing or not. The district courts in
both RealNetworks and Universal insisted in disconnecting uses of circumvention from
prohibitions on circumvention devices. This position of the court, according to Eddan Katz, is
inconsistent with case law. Katz states that the StreamBox VCR is an internet equivalent of the
Betamax vtr in Sony where the Supreme Court ruled that the use of Betamax for noncommercial
time-shifting purposes does not constitute contributory infringement or infringing uses of
television broadcasts.
77
75
David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673 (2000) p. 14
76
Id. at 19.
77
Eddan Katz (2001) at 6. Referring to the case of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417 (1984).
Convention