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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  8 extreme, may justify government regulation, the adoption of such extremist approach also have the ability of limiting the exercise of protected free expression. Neil Netanel 19 study is more related to the current study. Netanel compares the recent developments in copyright law in the face of digitization and globalization. These developments include the TRIPS agreement and DMCA. He reviews some of the cases under the new copyright laws and the more traditional copyright law and compares these to a case from another millennium concerning the Israeli Supreme Court decision in the Dead Seas Scrolls litigation. Netanel’s work is relevant to the current study because like Okediji, he situates TRIPS and DMCA in the context of globalization and this is one of the premises of the current study. Unlike the current study however, neither of these scholars addressed the possibility of judicial activism or the impact of these legislation on domestic values like fair use and first amendment in any extensive detail. Yochai Benkler 20 in his study of recent laws in intellectual property argues that the society is increasingly moving towardsthe perception of information as owned commodity and the new laws governing the use of information are increasingly borne out of this conception. He argues that this conception removes information from public domain and places them at an owner’s exclusive control that impoverishes the society by disallowing diversity of information sources and abridges freedom of speech. Professor Benkler’s study also examines three recent laws that indicate this movement. These laws include DMCA, UCC Article 2B and the Collections of Information Antipiracy Act. This study is relevant because it provides an extensive definition and background information on the term public domain and its implications in the recent copyright laws. Benkler also addresses in useful details the development of the first amendment and the ramifications of the current developments in copyright law for the first amendment. This is one of the key aspects of the current study. Unlike the current study, however, Benkler’s study did not address fair use doctrine and the interplay between the doctrine of fair use and first amendment with these new developments in copyright law. 19 Neil Weinstock Netanel, From the Dead Sea Scrolls to the Digital Millennium: Recent Developments in Copyright Law. 9 Tex. Intell. Prop. L. J. 19 (Fall 2000). 20 Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosures of the Public Domain . 74 N.Y.U.L. Rev. 354 (May 1999).

Authors: Abah, Adedayo.
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8
extreme, may justify government regulation, the adoption of such extremist approach also have
the ability of limiting the exercise of protected free expression.
Neil Netanel
19
study is more related to the current study. Netanel compares the recent
developments in copyright law in the face of digitization and globalization. These developments
include the TRIPS agreement and DMCA. He reviews some of the cases under the new
copyright laws and the more traditional copyright law and compares these to a case from another
millennium concerning the Israeli Supreme Court decision in the Dead Seas Scrolls litigation.
Netanel’s work is relevant to the current study because like Okediji, he situates TRIPS and
DMCA in the context of globalization and this is one of the premises of the current study. Unlike
the current study however, neither of these scholars addressed the possibility of judicial activism
or the impact of these legislation on domestic values like fair use and first amendment in any
extensive detail.
Yochai Benkler
20
in his study of recent laws in intellectual property argues that the
society is increasingly moving towardsthe perception of information as owned commodity and
the new laws governing the use of information are increasingly borne out of this conception. He
argues that this conception removes information from public domain and places them at an
owner’s exclusive control that impoverishes the society by disallowing diversity of information
sources and abridges freedom of speech. Professor Benkler’s study also examines three recent
laws that indicate this movement. These laws include DMCA, UCC Article 2B and the
Collections of Information Antipiracy Act. This study is relevant because it provides an
extensive definition and background information on the term public domain and its implications
in the recent copyright laws. Benkler also addresses in useful details the development of the first
amendment and the ramifications of the current developments in copyright law for the first
amendment. This is one of the key aspects of the current study. Unlike the current study,
however, Benkler’s study did not address fair use doctrine and the interplay between the doctrine
of fair use and first amendment with these new developments in copyright law.
19
Neil Weinstock Netanel, From the Dead Sea Scrolls to the Digital Millennium: Recent Developments in
Copyright Law. 9 Tex. Intell. Prop. L. J. 19 (Fall 2000).
20
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosures of the Public
Domain . 74 N.Y.U.L. Rev. 354 (May 1999).


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