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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  5 works are made available to the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless a wide variety of works are available under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, fax machines, scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is not content. What will drive the NII is the content moving through it. 10 However, Benkler argues that the regulatory agenda of DMCA is not of general application that happens to be applied to communicative behavior. It is a regulation that singles out the use of information and its communication for regulation. DMCA may therefore be content and viewpoint neutral, but its effects on speech are not incidental. The primary purpose is to prohibit access to, use, and communication of information. 11 The standard for examining laws that directly impinge on the exchange of ideas and information should meet at the minimum, some test about serving an important governmental interest and doing so without restricting substantially more speech than necessary. 12 Despite the possible impact of DMCA on the first amendment, the courts are yet to establish any kind of test for evaluating this regulation. Of course, this statement is qualified by the fact that the DMCA-based cases are yet to make it to the Supreme Court. Even then, the lower courts realized the dissonant and discordant nature of these segments in DMCA when a court noted that the anti-trafficking provisions in DMCA “leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so.” 13 The general concern is that DMCA enables copyright owners to control access to content of copyrighted works and not just the uses of the content as it was in the traditional copyright law. 14 9 Jane C. Ginsburg, Putting Cars on the “Information Superhighway”: Authors, Exploiters, and Copyright in Cyberspace, 95 COLUMBIA L. REV. 1466 (1995). 10 Intellectual Property and the National Information Infrastructure, The report of the Working Group on Intellectual Property Rights. September 1995 at p. 11. (Often and henceforth referred to as the White Paper). 11 Benkler, supra note 21 at 35. 12 See United States v. Obrien, 391 U.S. 367, 376-77 (arguing for ‘incidental’ restriction of First Amendment if in furtherance of substantial government interest); see also 512 U.S. 622, 62-63(1994). 13 RealNetworks, Inc. v. Streambox, Inc. (C-99-2070P 2000 U.S. Dist. LEXIS 1889 at 319). 14 Neil Weinstock Netanel, Recent Development: From the Dead Sea Scrolls to the Digital Millennium; Recent Developments in Copyright Law, 9 TEX. INTELL. PROP. L. J. 19 (Fall 2000), at 1.

Authors: Abah, Adedayo.
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5
works are made available to the NII environment. Likewise, the public will not use the
services available on the NII and generate the market necessary for its success unless a
wide variety of works are available under equitable and reasonable terms and conditions,
and the integrity of those works is assured. All the computers, telephones, fax machines,
scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires,
cables, networks and satellites in the world will not create a successful NII, if there is not
content. What will drive the NII is the content moving through it.
10
However, Benkler argues that the regulatory agenda of DMCA is not of general
application that happens to be applied to communicative behavior. It is a regulation that singles
out the use of information and its communication for regulation. DMCA may therefore be
content and viewpoint neutral, but its effects on speech are not incidental. The primary purpose
is to prohibit access to, use, and communication of information.
11
The standard for examining
laws that directly impinge on the exchange of ideas and information should meet at the
minimum, some test about serving an important governmental interest and doing so without
restricting substantially more speech than necessary.
12
Despite the possible impact of DMCA on
the first amendment, the courts are yet to establish any kind of test for evaluating this regulation.
Of course, this statement is qualified by the fact that the DMCA-based cases are yet to make it to
the Supreme Court. Even then, the lower courts realized the dissonant and discordant nature of
these segments in DMCA when a court noted that the anti-trafficking provisions in DMCA
“leave technologically unsophisticated persons who wish to make fair use of encrypted
copyrighted works without the technical means of doing so.”
13
The general concern is that
DMCA enables copyright owners to control access to content of copyrighted works and not just
the uses of the content as it was in the traditional copyright law.
14
9
Jane C. Ginsburg, Putting Cars on the “Information Superhighway”: Authors, Exploiters, and Copyright in
Cyberspace, 95 COLUMBIA L. REV. 1466 (1995).
10
Intellectual Property and the National Information Infrastructure, The report of the Working Group on Intellectual
Property Rights. September 1995 at p. 11. (Often and henceforth referred to as the White Paper).
11
Benkler, supra note 21 at 35.
12
See United States v. Obrien, 391 U.S. 367, 376-77 (arguing for ‘incidental’ restriction of First Amendment if in
furtherance of substantial government interest); see also 512 U.S. 622, 62-63(1994).
13
RealNetworks, Inc. v. Streambox, Inc. (C-99-2070P 2000 U.S. Dist. LEXIS 1889 at 319).
14
Neil Weinstock Netanel, Recent Development: From the Dead Sea Scrolls to the Digital Millennium; Recent
Developments in Copyright Law, 9 TEX. INTELL. PROP. L. J. 19 (Fall 2000), at 1.


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