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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  7 seeming contraction of the fair use doctrine in DMCA’s sections 1201(c)(1) and section 1201 (b)(1) which prohibit circumvention of anti-infringement devices for non-infringing purposes and places a ban on technology required to effect such circumvention respectively. The recognition of these issues is neither original nor unique to this study. Pamela Samuelson, 15 Ruth Okediji, 16 and David Nimmer 17 are some of copyright law scholars who have made the same observations and the implications of fair use contraction for the public domain. These different scholars of copyright law have examined the implications of DMCA for the public domain from different angles. Samuelson considered the notorious sections of DMCA as highly beneficial to the information industry and highly detrimental to the public and suggested a change in the law. The current study argues that a change in the law will be very difficult to achieve because DMCA is part of an international treaty that has incorporated intellectual property into trade and made difficult by the concept of globalization. There is also the issue that the doctrine of fair use has a very dubious standing in the international front. Okediji’s article deals with the question of the incompatibility of heightened international copyright protection with domestic public welfare norms of intellectual property policy. She further stated that only compatibility between these would be beneficial to the United States, much less other nations. Okediji’s work however, is more focused on the international public welfare implications of globalization and the subsequent coercion of intellectual property into international trade. David Nimmer did a systematic analysis of the implications of section 1201 of DMCA for public welfare but did not proffer any specific resolutions for the issues he raised. Other relevant literature in this area include an article by Shaun Sparks 18 wherein he uses the O’Brien test to evaluate DMCA and its implications for free speech. Using the specific case note of Universal City Studios, Inc. v. Reimerdes, Sparks examines the constitutional first amendment issues involved in DMCA and argues that DeCSS is expressive conduct the regulation of which must at the very least, pass the O’Brien test. He further argues that the O’Brien test is the extremist approach and even if the facts presented in the DeCSS case in the 15 Supra note 7 16 Ruth Gana Okediji, Perspectives on Globalization from Developing States: Copyright and Public Welfare in Global Perspective 7 Ind. J. Global Leg. Stud. 117 (1999) 17 David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act 148 U. Pa. L. Rev. 6673 (Jan 2000) 18 Shaun Sparks, Bursting the Code: The Anti-Trafficking Provision of the Digital Millennium Copyright Act and Free Expression in Digital Media. 6 Int’l J. Comm. L. & Pol’y 1 (Winter 2000/2001)

Authors: Abah, Adedayo.
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7
seeming contraction of the fair use doctrine in DMCA’s sections 1201(c)(1) and section 1201
(b)(1) which prohibit circumvention of anti-infringement devices for non-infringing purposes
and places a ban on technology required to effect such circumvention respectively. The
recognition of these issues is neither original nor unique to this study. Pamela Samuelson,
15
Ruth Okediji,
16
and David Nimmer
17
are some of copyright law scholars who have made the
same observations and the implications of fair use contraction for the public domain.
These different scholars of copyright law have examined the implications of DMCA for
the public domain from different angles. Samuelson considered the notorious sections of DMCA
as highly beneficial to the information industry and highly detrimental to the public and
suggested a change in the law. The current study argues that a change in the law will be very
difficult to achieve because DMCA is part of an international treaty that has incorporated
intellectual property into trade and made difficult by the concept of globalization. There is also
the issue that the doctrine of fair use has a very dubious standing in the international front.
Okediji’s article deals with the question of the incompatibility of heightened international
copyright protection with domestic public welfare norms of intellectual property policy. She
further stated that only compatibility between these would be beneficial to the United States,
much less other nations. Okediji’s work however, is more focused on the international public
welfare implications of globalization and the subsequent coercion of intellectual property into
international trade. David Nimmer did a systematic analysis of the implications of section 1201
of DMCA for public welfare but did not proffer any specific resolutions for the issues he raised.
Other relevant literature in this area include an article by Shaun Sparks
18
wherein he uses
the O’Brien test to evaluate DMCA and its implications for free speech. Using the specific case
note of Universal City Studios, Inc. v. Reimerdes, Sparks examines the constitutional first
amendment issues involved in DMCA and argues that DeCSS is expressive conduct the
regulation of which must at the very least, pass the O’Brien test. He further argues that the
O’Brien test is the extremist approach and even if the facts presented in the DeCSS case in the
15
Supra note 7
16
Ruth Gana Okediji, Perspectives on Globalization from Developing States: Copyright and Public Welfare in
Global Perspective 7 Ind. J. Global Leg. Stud. 117 (1999)
17
David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act 148 U. Pa. L. Rev. 6673 (Jan 2000)
18
Shaun Sparks, Bursting the Code: The Anti-Trafficking Provision of the Digital Millennium Copyright Act and
Free Expression in Digital Media. 6 Int’l J. Comm. L. & Pol’y 1 (Winter 2000/2001)


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