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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  23 Equally important is the fact that the first criminal test of the DMCA may be underway as early as December 2002. The case filed by the office of the Attorney General started out against a Russian programmer, Dmitry Sklyarov, and may well end up to be against ElcomSoft, his employer. Congress mandated the Library of Congress’s U.S. Copyright Office to evaluate the effect of DMCA on the traditional “first sale doctrine.” The report of the Copyright Office was released on August 29, 2001. The report determined that there was no convincing evidence of present-day problems with the DMCA although the government attorney agreed that the law needed amendments to allow users to make temporary back-up copies of software and to allow archiving. 87 As quoted in American Libraries, ALA Office for Information Technology Policy Director, Rick Weingarten expressed his disappointment with the report stating that “In our view, [the Copyright Office] still doesn’t grasp what technology is doing to the issue of user rights.” 88 All of the above points to the multidimensional nature of this law and its unpredictability due to the fact that the technology it aims to regulate is still evolving. In all of these it will be important to keep in mind that the goal of copyright law is to create a balance between competing interests. Allowing content owners to sue and win copyright cases without having to show infringement should is moving copyright law into a worrisome sphere. 87 The report is available online at www.loc.gov/copyright/reports/sec-104-report-vol-1.pdf 88 American Libraries, Copyright Office: “No Problem with DMCA.” 32 American Libraries i9, 18 (October 2001)

Authors: Abah, Adedayo.
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23
Equally important is the fact that the first criminal test of the DMCA may be underway as
early as December 2002. The case filed by the office of the Attorney General started out against
a Russian programmer, Dmitry Sklyarov, and may well end up to be against ElcomSoft, his
employer.
Congress mandated the Library of Congress’s U.S. Copyright Office to evaluate the
effect of DMCA on the traditional “first sale doctrine.” The report of the Copyright Office was
released on August 29, 2001. The report determined that there was no convincing evidence of
present-day problems with the DMCA although the government attorney agreed that the law
needed amendments to allow users to make temporary back-up copies of software and to allow
archiving.
87
As quoted in American Libraries, ALA Office for Information Technology Policy
Director, Rick Weingarten expressed his disappointment with the report stating that “In our
view, [the Copyright Office] still doesn’t grasp what technology is doing to the issue of user
rights.”
88
All of the above points to the multidimensional nature of this law and its unpredictability
due to the fact that the technology it aims to regulate is still evolving. In all of these it will be
important to keep in mind that the goal of copyright law is to create a balance between
competing interests. Allowing content owners to sue and win copyright cases without having to
show infringement should is moving copyright law into a worrisome sphere.
87
The report is available online at www.loc.gov/copyright/reports/sec-104-report-vol-1.pdf
88
American Libraries, Copyright Office: “No Problem with DMCA.” 32 American Libraries i9, 18 (October 2001)


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