Armstrong on Fair Circumvention under the DMCA

Timothy K. Armstrong (University of Cincinnati College of Law) has posted Fair Circumvention on SSRN.  Here is the abstract:

Judicial decisions construing the key liability provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1201, cluster around two incompatible poles. One set of decisions construes the DMCA's liability provisions broadly, emphasizing the need to prevent possible copyright infringement and limit the public availability of tools that may be used to infringe. Other cases construe the same language narrowly, stressing the avoidance of anticompetitive market distortions. Both sets of decisions insist that their interpretation is commanded by the literal text of the DMCA. A closer look, however, reveals that both sides have overstated the support they may plausibly draw from the literal text of the statute. The overreading of the statutory text ultimately limits the persuasive reach of both sets of decisions and inhibits the development of a rational body of doctrine under the DMCA.

I argue that the courts' disagreements over the meaning of the DMCA's language obscures what should happen (and may, by some accounts, be happening already): to wit, the development of a set of judge-made exceptions to DMCA liability based upon the courts' historically independent role in copyright policymaking. The same factors that have been thought to justify an expansive copyright policymaking role for the courts support a similarly prominent judicial role in under the DMCA; a role that the courts should not be so quick to relinquish by offering poorly supported statements about what the literal statutory text is perceived to command. The emerging "fair circumvention" doctrine can explain and justify, in a way that merely parsing the statutory text cannot, the courts' divergent decisions, and can provide guidance for future courts and litigants. I conclude that the courts should continue to develop "fair circumvention" exceptions to the DMCA, but should do so (1) explicitly, and (2) based, at least initially, on criteria drawn from existing copyright principles of fair use.