All Academic, Inc. Research Logo

Info/CitationFAQResearchAll Academic Inc.
Document

Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  22 section 1201(a)(1)(A)-(D) elaborated on the possibility of creating new exemptions as deem necessary through legislative amendments or rulemaking. However, these are very laborious and painstaking procedures and the evolving nature of the digital world makes this option even more unpalatable. The position of this author is to advocate for some level of judicial review. Not strictly as prescribed by the public choice theorists which is based mostly on “skepticism about legislative motivations and outcomes” 85 but based on the awareness of the legislative history and legislative intent of the DMCA. This brand of judicial review will allow for the review of the DMCA- related cases on a case-by-case basis and allow for fair use and other socially beneficial defenses to the anti-circumvention and anti-trafficking provisions of the DMCA. Judicial review is often used to justify judicial scrutiny of rent-seeking economic legislation and may not be a perfect tool even in such situations where interest group capture of the legislative process can be verified. However, judicial review seems to be relevant because the fair use doctrine by nature is not a constitutional right but a judicially created right to serve a socially beneficial purpose. The development of the digital environment does not make this right less worthy of protection. In addition to the digital world is still evolving and its limits are still beyond anyone’s imagination. Judicial review will serve as a temporary measure for those situations where a more inclusive interpretation of section 1201 is needed to preserve the public sphere, and maintain the traditional balance between the interests of the users and the economic interests of copyright owners until either the market regulates the use of digital products, or we can ascertain for sure where the digital world is headed. Conclusions This study will not be complete without the inclusion of more recent developments in this area of law. It is worthy of note that Congressman Rick Boucher (D-VA) who argued forcefully for a general exemption for fair in the DMCA before the passage of the bill, is not set to push for legislation that would specifically address section 1201. Libraries and Universities associations have pledged their support for Boucher in this effort. 86 85 Farber and Frickey (1991) at 67. 86 Andrew Albanese, DMCA Revision to get new push: Boucher aims to amend act. 127 Library Journal i4 (March 1, 2002)

Authors: Abah, Adedayo.
first   previous   Page 22 of 24   next   last



background image
22
section 1201(a)(1)(A)-(D) elaborated on the possibility of creating new exemptions as deem
necessary through legislative amendments or rulemaking. However, these are very laborious and
painstaking procedures and the evolving nature of the digital world makes this option even more
unpalatable.
The position of this author is to advocate for some level of judicial review. Not strictly as
prescribed by the public choice theorists which is based mostly on “skepticism about legislative
motivations and outcomes”
85
but based on the awareness of the legislative history and legislative
intent of the DMCA. This brand of judicial review will allow for the review of the DMCA-
related cases on a case-by-case basis and allow for fair use and other socially beneficial defenses
to the anti-circumvention and anti-trafficking provisions of the DMCA.
Judicial review is often used to justify judicial scrutiny of rent-seeking economic
legislation and may not be a perfect tool even in such situations where interest group capture of
the legislative process can be verified. However, judicial review seems to be relevant because the
fair use doctrine by nature is not a constitutional right but a judicially created right to serve a
socially beneficial purpose. The development of the digital environment does not make this right
less worthy of protection. In addition to the digital world is still evolving and its limits are still
beyond anyone’s imagination. Judicial review will serve as a temporary measure for those
situations where a more inclusive interpretation of section 1201 is needed to preserve the public
sphere, and maintain the traditional balance between the interests of the users and the economic
interests of copyright owners until either the market regulates the use of digital products, or we
can ascertain for sure where the digital world is headed.
Conclusions
This study will not be complete without the inclusion of more recent developments in this
area of law. It is worthy of note that Congressman Rick Boucher (D-VA) who argued forcefully
for a general exemption for fair in the DMCA before the passage of the bill, is not set to push for
legislation that would specifically address section 1201. Libraries and Universities associations
have pledged their support for Boucher in this effort.
86
85
Farber and Frickey (1991) at 67.
86
Andrew Albanese, DMCA Revision to get new push: Boucher aims to amend act. 127 Library Journal i4 (March
1, 2002)


Convention
All Academic Convention is the premier solution for your association's abstract management solutions needs.
Submission - Custom fields, multiple submission types, tracks, audio visual, multiple upload formats, automatic conversion to pdf.
Review - Peer Review, Bulk reviewer assignment, bulk emails, ranking, z-score statistics, and multiple worksheets!
Reports - Many standard and custom reports generated while you wait. Print programs with participant indexes, event grids, and more!
Scheduling - Flexible and convenient grid scheduling within rooms and buildings. Conflict checking and advanced filtering.
Communication - Bulk email tools to help your administrators send reminders and responses. Use form letters, a message center, and much more!
Management - Search tools, duplicate people management, editing tools, submission transfers, many tools to manage a variety of conference management headaches!
Click here for more information.

first   previous   Page 22 of 24   next   last

©2012 All Academic, Inc.