2
Fair Use and the DMCA: A Case for Judicial Review?
Introduction
This is an exploratory study to critically examine section 1201 of the new addition to
the United States copyright law and how it impacts customary non-infringing uses in the
traditional copyright law. The Digital Millennium Copyright Act (DMCA) was added to the
Copyright Act in 1998 to enable the copyright laws cope with the digital age. The primary goal
of this law is to protect information providers against information piracy, which was costing the
US economy enormous amount of money every year.
1
However, in trying to safeguard this
important interest, the DMCA inadvertently may have prevented legitimate uses of copyrighted
information.
Section 1201 of DMCA prohibits trafficking in technologies, services or products that are
“primarily designed” to circumvent technological measures that control access to copyrighted
works or protect the rights of copyright owners.
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In doing this, it would seem that copyright
owners have been given the right to control access to information and not just the uses of
information (content) as it was in traditional copyright law. It is this seeming ambiguity in the
law that this study aims to examine and suggest possible ways of rectifying.
Over the years, the copyright laws of the United States have gone through several
transformations and reconstruction to adapt to the needs of the changing technologies of the
time. One such transformation is the DMCA. In signing the bill into law on October 28, 1998,
President Clinton stated that “We have done our best to protect from digital piracy the copyright
industries that comprise the leading export of the United States.”
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This sentence seems to sum
up the whole intent of the DMCA.
This necessity for a law to regulate the use of copyrighted materials on the Internet
cannot be overemphasized. Unlike the analog era where copies were easy to spot from the
original, the Internet makes digital copies possible in multiple copies at once without any
1
RIAA, Piracy FAQ (visited April 30, 2002) http://www.riaa.com/piracy/pirans.htm
2
See 17 U.S.C. §§ 1201 (a)(2) (access controls), 1201 (b)(1) (rights protection) (2000)
3
Jill Gerhardt-Powals and Mathew Powals, The Digital Millenium-Copyright Act: A Compromise in Progess, 162
New Jersey Law Journal 28, November 2000.
Convention