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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  20 In the three cases examined above, the primary concern of the court in the DMCA- related aspects of the cases is whether or not the technological access control measures of the plaintiffs were circumvented. An affirmative response to this aspect of the allegation was the sole consideration is issuing a preliminary injunction. How are fair use and first amendment concerns addressed by the courts in DMCA related cases? In the Universal case, defendant’s argument that DeCSS was used to gain access to copyrighted works to make fair use of the works which according to Sony would be perfectly legitimate, was rejected by the court. The court stated that “if Congress had meant the fair use defense to apply to such actions, it would have said so.” 78 The court recognized and acknowledged the inefficacy of fair use under section 1201 of DMCA because it stated that the anti-trafficking provisions “leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so.” 79 However, according to the Universal court, this “is a matter for Congress unless Congress’s decision contravenes the constitution.” 80 The Universal court also rejected defendants’ arguments that the anti-trafficking provisions of DMCA negate the first amendment. In the case of SCEA, the court notably refused to hold the defendants’ Game Enhancer implicated in traditional copyright infringement. 81 Plaintiff SCEA’s only successful copyright- related claim was the encrypted access controls—the circumvention of access control technological measure. In the case of RealNetworks, the plaintiff moved for a preliminary injunction to enjoin further distribution of StreamBox products because these products violated the anti-trafficking provisions of the DMCA. Defendant StreamBox argued that its products have legitimate uses including allowing users of RealMedia files to make fair use copies of said files as is permissible under the rules of Sony. In its decision, the court relied on Nimmer on Copyright to state that fair use is not applicable to manufacturers or distributors of circumvention devices. In reaching its decision, the court noted that, “a given piece of machinery might qualify as a stable item of commerce, with a substantial noninfringing use, and hence be immune from attack under Sony’s construction of the Copyright Act—but nevertheless still be subject to 78 Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, at 322 (S.D.N.Y.2000); 55 U.S.P.Q. 2d at 1890 79 Id. at 323 80 Id., 55 U.S.P.Q.2d at 1892 81 87 F. Supp. 2d 976, at 986-87; 54 U.S.P.Q.2d (BNA)1401 (N.D.Cal. 1999) at 1409,

Authors: Abah, Adedayo.
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20
In the three cases examined above, the primary concern of the court in the DMCA-
related aspects of the cases is whether or not the technological access control measures of the
plaintiffs were circumvented. An affirmative response to this aspect of the allegation was the
sole consideration is issuing a preliminary injunction.
How are fair use and first amendment concerns addressed by the courts in DMCA related
cases? In the Universal case, defendant’s argument that DeCSS was used to gain access to
copyrighted works to make fair use of the works which according to Sony would be perfectly
legitimate, was rejected by the court. The court stated that “if Congress had meant the fair use
defense to apply to such actions, it would have said so.”
78
The court recognized and
acknowledged the inefficacy of fair use under section 1201 of DMCA because it stated that the
anti-trafficking provisions “leave technologically unsophisticated persons who wish to make fair
use of encrypted copyrighted works without the technical means of doing so.”
79
However,
according to the Universal court, this “is a matter for Congress unless Congress’s decision
contravenes the constitution.”
80
The Universal court also rejected defendants’ arguments that the
anti-trafficking provisions of DMCA negate the first amendment.
In the case of SCEA, the court notably refused to hold the defendants’ Game Enhancer
implicated in traditional copyright infringement.
81
Plaintiff SCEA’s only successful copyright-
related claim was the encrypted access controls—the circumvention of access control
technological measure. In the case of RealNetworks, the plaintiff moved for a preliminary
injunction to enjoin further distribution of StreamBox products because these products violated
the anti-trafficking provisions of the DMCA. Defendant StreamBox argued that its products have
legitimate uses including allowing users of RealMedia files to make fair use copies of said files
as is permissible under the rules of Sony. In its decision, the court relied on Nimmer on
Copyright to state that fair use is not applicable to manufacturers or distributors of circumvention
devices. In reaching its decision, the court noted that, “a given piece of machinery might qualify
as a stable item of commerce, with a substantial noninfringing use, and hence be immune from
attack under Sony’s construction of the Copyright Act—but nevertheless still be subject to
78
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, at 322 (S.D.N.Y.2000); 55 U.S.P.Q. 2d at 1890
79
Id. at 323
80
Id., 55 U.S.P.Q.2d at 1892
81
87 F. Supp. 2d 976, at 986-87; 54 U.S.P.Q.2d (BNA)1401 (N.D.Cal. 1999) at 1409,


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