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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  21 suppression under section 1201.” 82 The court also found that even if Sony had applied, defendants would still have failed the Sony test because the VCR had no substantial noninfringing uses. Suggested Solution The fact that the DMCA makes a departure from traditional copyright law which focuses on uses of content of copyrighted works to controlling both access to and use of copyrighted content is not in dispute. The fact that the copyright industry has become a huge source of revenue for the U.S. economy is also not in dispute. The need to protect this industry from piracy is uncontested. The legislative history of DMCA shows the unrelenting efforts of interest groups most notably the copyright industry domestically and abroad to ensure that the DMCA becomes public law. 83 Interest group theory offers us an explanatory tool for a public law such as DMCA. However, the legislative history of DMCA shows that while copyright owners’ interest group witnesses and their influences might be overwhelming at the hearings leading to the DMCA, there was considerate interest among the legislators especially in the House Commerce Committee in preserving the public interest by preserving the traditional balance between copyright owners and users. 84 Despite the argument of public choice theory that legislators are mostly interested in getting reelected and therefore fall prey to the wishes of interest groups. Even if one assumes that this was the case in the case of DMCA, the legislative history still reveals what seems like a deep concern for the preservation of the public sphere especially at the House Commerce Committee. This justifies an assumption of a legislative intent to preserve fair use in the digital world. However, the legislation that emerged proved that this intent may not be realizable in the DMCA. One way to go about ensuring this intent would be to carve out another exemption for fair users within the already long list of exemptions. The list of exemptions is another manifestations of Congress straining albeit unsuccessfully to maintain this balance. The rulemaking process in 82 RealNetworks Inc., v. StreamBox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000) at 21 (quoting 1 Melville Nimmer & David Nimmer on Copyright (1999), § 12A.05[C}]). The court also quoted Nimmer further saying that “equipment manufacturers in the twenty-first century will need to vet their products for compliance with Section 1201 in order to avoid a circumvention claim, rather than under Sony to negate a copyright claim.” 83 See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech L. J. 519 (1999) and David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673 (2000) for a detailed and exhaustive exposition on the political battle over DMCA between the copyright owners and technology firms and the legislative history of DMCA respectively. 84 See Nimmer (1999) and Report of the Senate Committee on the Judiciary, S. Rep. No 105-190, (1998)

Authors: Abah, Adedayo.
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suppression under section 1201.”
82
The court also found that even if Sony had applied, defendants
would still have failed the Sony test because the VCR had no substantial noninfringing uses.
Suggested Solution
The fact that the DMCA makes a departure from traditional copyright law which focuses
on uses of content of copyrighted works to controlling both access to and use of copyrighted
content is not in dispute. The fact that the copyright industry has become a huge source of
revenue for the U.S. economy is also not in dispute. The need to protect this industry from piracy
is uncontested.
The legislative history of DMCA shows the unrelenting efforts of interest groups most
notably the copyright industry domestically and abroad to ensure that the DMCA becomes public
law.
83
Interest group theory offers us an explanatory tool for a public law such as DMCA.
However, the legislative history of DMCA shows that while copyright owners’ interest group
witnesses and their influences might be overwhelming at the hearings leading to the DMCA,
there was considerate interest among the legislators especially in the House Commerce
Committee in preserving the public interest by preserving the traditional balance between
copyright owners and users.
84
Despite the argument of public choice theory that legislators are
mostly interested in getting reelected and therefore fall prey to the wishes of interest groups.
Even if one assumes that this was the case in the case of DMCA, the legislative history still
reveals what seems like a deep concern for the preservation of the public sphere especially at the
House Commerce Committee. This justifies an assumption of a legislative intent to preserve fair
use in the digital world. However, the legislation that emerged proved that this intent may not be
realizable in the DMCA.
One way to go about ensuring this intent would be to carve out another exemption for fair
users within the already long list of exemptions. The list of exemptions is another manifestations
of Congress straining albeit unsuccessfully to maintain this balance. The rulemaking process in
82
RealNetworks Inc., v. StreamBox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000) at 21 (quoting 1 Melville
Nimmer & David Nimmer on Copyright (1999), § 12A.05[C}]). The court also quoted Nimmer further saying that
“equipment manufacturers in the twenty-first century will need to vet their products for compliance with Section
1201 in order to avoid a circumvention claim, rather than under Sony to negate a copyright claim.”
83
See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations
Need to be Revised, 14 Berkeley Tech L. J. 519 (1999) and David Nimmer, A Riff on Fair Use in the Digital
Millennium Copyright Act, 148 U. Pa. L. Rev. 673 (2000) for a detailed and exhaustive exposition on the political
battle over DMCA between the copyright owners and technology firms and the legislative history of DMCA
respectively.
84
See Nimmer (1999) and Report of the Senate Committee on the Judiciary, S. Rep. No 105-190, (1998)


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