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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  6 DMCA makes the expression of ideas (arguably functional expression), criminal in section 1201. Under the section, it is immaterial whether or not the technology was used for copyright infringing or non-infringing purposes or even used at all, just making the technology available is a crime. This study proposes to investigate and make critical evaluations of the concerns that piracy might rob the internet of its potential if not properly regulated and the argument that the public has a fundamental right, to try to understand and control the technologies that affect the lives of the public. How then do we achieve a balance of the interests of the public and the interests of the providers of information in the digital age through the DMCA? The current study seeks to examine how judges in cases involving DMCA are addressing the issue of fair use in DMCA cases. This questions is important because based on the constitutional mandate for copyright law in the United States, we know that copyright laws are meant to serve primarily, the interest of the public. We also know that one of the unique features of copyright law in the United States is the fair use doctrine. The sole purpose of which is to serve this interest. Therefore, to be legitimate and adequate for its purpose, any copyright law in the United States would have to serve this purpose by preserving the fair use doctrine. Being able to answer these fundamental questions would help establish both the constitutionality and the legitimacy of DMCA. Research Questions In light of the above issues, the following research questions naturally suggest themselves: 1. How is fair use concern addressed in section 1201 of DMCA? 2 How are courts interpreting the issues in DMCA-related cases? 3. How are the fair use and first amendment concerns addressed in the DMCA cases by the Judges? 4. What, if any, are the alternatives? Literature Review In light of the fact that DMCA is a recent law, the current study was inspired by the works of several commentators and scholars who have tried to elucidate the apparent conflict and

Authors: Abah, Adedayo.
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DMCA makes the expression of ideas (arguably functional expression), criminal in
section 1201. Under the section, it is immaterial whether or not the technology was used for
copyright infringing or non-infringing purposes or even used at all, just making the technology
available is a crime.
This study proposes to investigate and make critical evaluations of the concerns that
piracy might rob the internet of its potential if not properly regulated and the argument that the
public has a fundamental right, to try to understand and control the technologies that affect the
lives of the public. How then do we achieve a balance of the interests of the public and the
interests of the providers of information in the digital age through the DMCA?
The current study seeks to examine how judges in cases involving DMCA are addressing
the issue of fair use in DMCA cases. This questions is important because based on the
constitutional mandate for copyright law in the United States, we know that copyright laws are
meant to serve primarily, the interest of the public. We also know that one of the unique features
of copyright law in the United States is the fair use doctrine. The sole purpose of which is to
serve this interest. Therefore, to be legitimate and adequate for its purpose, any copyright law in
the United States would have to serve this purpose by preserving the fair use doctrine. Being able
to answer these fundamental questions would help establish both the constitutionality and the
legitimacy of DMCA.
Research Questions
In light of the above issues, the following research questions naturally suggest
themselves:
1. How is fair use concern addressed in section 1201 of DMCA?
2
How are courts interpreting the issues in DMCA-related cases?
3. How are the fair use and first amendment concerns addressed in the DMCA cases by
the Judges?
4. What, if any, are the alternatives?
Literature Review
In light of the fact that DMCA is a recent law, the current study was inspired by the
works of several commentators and scholars who have tried to elucidate the apparent conflict and


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