In Defense of Fair Use (and Fair Use as a Defense)

The cases of Real Networks v. Streambox and Universal City Studios v. Reimerdes demonstrated how the anti-circumvention provisions found in §1201 of the DMCA could be interpreted as giving copyright owners the right to prevent the public from making fair use of copyrighted works. In its recent decision of Chamberlain v. Skylink, the Court of Appeals for the Federal Circuit (CAFC) had an opportunity to expressly counter this erosion of the public’s rights. CAFC was on the right track, when it proclaimed:

“The DMCA does not create a new property right for copyright owners. Nor, for that matter, does it divest the public of the property rights that the Copyright Act has long granted to the public.”

This statement seems to be at odds with the Real Networks and Reimerdes decisions. It seemed to follow that CAFC would allow a limited fair use defense to the anti-circumvention provisions of the DMCA. This was not the case, as the court missed an opportunity, stating:

“We leave open the question as to when §107 might serve as an affirmative defense to a prima facie violation of §1201. For the moment, we note only that though the traditional fair use doctrine of §107 remains unchanged as a defense to copyright infringement under §1201(c)(1), circumvention is not infringement.”

The court in Reimerdes seemed to agree that circumvention is not infringement, so §107 does not apply, stating:

“Defendants are not here sued for copyright infringement. They are sued for offering and providing technology designed to circumvent technological measures that control access to copyrighted works and otherwise violating §1201(a)(2) of the Act.”

While circumvention is obviously different from infringement, this shouldn’t be the place to draw the line. Without access to the copyrighted work, there can be no infringement. Not allowing the public access to a copyrighted work cuts off the public’s right to engage in fair use of that work. It only seems logical to apply the fair use concept and its supporting policies to the public’s ability to the access the copyrighted work – call it a “fair access” defense.

I am not advocating an unrestricted utilization of the “fair access” defense, as that would throw off the “balance” of the competing interests that Congress tried to strike in enacting the DMCA. Some limitations would be warranted. Examples of restrictions can range from a requirement of no intent on the public’s to infringe the copyrighted work to an allowance of circumvention by only hardware and software that is capable of substantial non-infringing uses. See H.R. 107 Sec.5(b), the Digital Media Consumers’ Rights Act, proposed by Richard Boucher and Henry Doolittle.

Maybe CAFC decided to effectuate judicial restraint and leave the decision up to Congress, which is best suited to make these tough decisions. Better yet, maybe it decided that it should just stick to the big patent issues. It will be interesting to see whether Chamberlain is followed in the other circuit courts.

Comments

[Bryan Lee]

Edward W. Felten over at Freedom to Tinker notes that the Skylink ruling was headed to "a kind of reverse Sony rule". That even if circumvention tools have "dual-uses", both substantial non-infringing uses and infringing uses, they would still violate the DMCA.

"In flirting with the reverse Sony rule, the court hints that Congress, in passing the DMCA, meant to revise the Sony rule because of a perceived danger that future circumvention tools would tip the copyright balance too far against copyright owners. In other words, such a rule would say that the purpose of the DMCA anti-circumvention provisions was to reverse the Sony rule, but only for circumvention tools; the original Sony rule would still hold for non-circumvention tools."

It's almost as if Congress perceives the harm from circumvention greater than infringement itself, and the DCMA is Congress's attempt to address this harm.

[Rolo Timassie]

I'm not sure if outsiders are allowed to post here. I looked for rules but didn't see any.

"Not allowing the public access to a copyrighted work cuts off the public’s right to engage in fair use of that work." What about locks on library doors?

"Examples of restrictions can range from a requirement of no intent on the public’s to infringe the copyrighted work to an allowance of circumvention by only hardware and software that is capable of substantial non-infringing uses." The problem with the Boucher bill is that, in practice, this would be impossible to prove. The bill might as well repeal the anti-circumvention provisions. Every defendant would claim that their intent was not to infringe; and that the circumvention device was capable of (enabling) non-infringing uses. Of course, all circumvention devices are capable of enabling non-infringing uses, just like lock-picks can be used by people who have accidentally locked themselves out of their houses. But that's not a typical use.

[Ryan Friedl]

Having locks on library doors is not quite the same as eliminating technology to access copyrighted works. Although libraries have locks on the doors, most of them are available to the public for at least a few hours per day. Thus, the public has the ability to access the vast amount of knowledge inside, albeit at potentially limited times. The DMCA provisions and subsequent caselaw seems to completely restrict the ability of the public to use certain technology to access copyrighted works. By analogy, this would seem to correspond to a library that has no doors or entrance at all.

A bill to repeal the anti-circumvention provisions in their entirely would be a waste of the drafter's time - no legislator today would vote for it. There is a problem with proving intent not to infringe, but that is also a problem that is faced in many other aspects of trying to prosecute alleged infringers. Why not just apply the same intent requirement?

As far as anti-circumvention devices being capable of "enabling" non-infringing uses, I think that is not high enough of a standard and would let people off too easily. Consistent with Sony and Grokster, these devices should have to satisfy the "substantial non-infringing use" standard. A lock-pick might be used for good purposes, but it is mainly used (by thieves) for gaining entrance where one could not gain entrance before. Hence, similar to the anti-circumvention device in RealNetworks, its main legitimate purpose is to by-pass security - which is not a legitimate use.

[Rolo Timassie]

The anti-circumvention provisions do not prohibit all access to an encrypted work -- if that were true, then the only legal use for DVDs would be as coasters. You can plop the DVD in any player licensed to decrypt it, and it will play. This is just like the library scenario. You can only visit the library when you are authorized to do so -- which is whenever the library says you can visit, say M-F 8-5. Even if you're really trustworthy, and intend no harm, breaking into the library on Saturday is a crime, and punishing you is not inconsistent with fair use. This is true even if breaking open library doors would allow "substantial noninfringing uses" to occur (breaking open the door is of course not itself an infringing or noninfringing use, it's not even a use of a copyrighted work).