Fair Circumvention

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I. Introduction edit

When copyrighted works are published in digital form,publishers may seek to prevent copyright infringements by embeddingtechnological protections into the published content. Publishers have astatutory incentive to deploy such technological protection measures(commonly referred to as “digital rights management” or “DRM”systems), for if they do, they may avail themselves of the protections ofthe Digital Millennium Copyright Act of 1998 (“DMCA”).^[1] The DMCAforbids circumventing, or trafficking in devices that circumvent,technological measures that protect copyrighted works.^[2] This statutoryprohibition on circumventing technological protection measures supplies

​rights holders with an additional cause of action that they may elect topursue instead of, or in addition to, the ordinary remedies for copyrightinfringement.^[3]

In a number of recent cases, however, courts have permitteddefendants to circumvent DRM measures or to traffic in circumventiondevices, finding no violation of the DMCA.^[4] The courts in these casesoffered a number of reasons for rejecting the plaintiffs’ claims, including(1) that the technological subject matter of the parties’ dispute was notwithin the scope of the DMCA; (2) that plaintiffs were attempting toapply the DMCA in circumstances not contemplated by Congress at thetime it passed the statute; (3) that the plaintiffs were abusing the DMCAas a means of gaining improper advantage over a competitor in themarketplace; and (4) that the plaintiffs should be required to demonstratean underlying act of copyright infringement by the defendant as anecessary element of any DMCA claim. The first two of these argumentsrest on inferences and suppositions about legislative intent in the face ofminimally illuminating statutory text. The latter two are essentiallypolicy arguments that, whatever their persuasive appeal, are even lessreadily grounded in the language of the DMCA as passed.

These recent decisions gain persuasive force, however, ifcontextualized within the long history of judge-made exceptions to thegeneral provisions of federal copyright law. The common-law doctrine offair use, for example, began—and, even after receiving express statutoryrecognition in the Copyright Act of 1976,^[5] continues to evolve—as ajudge-made exception to the statutory exclusive rights of copyrightholders.^[6] So viewed, recent decisions may be creating what amounts to ajudge-made exception to the liability rules of the DMCA—what is in ​substance, even if it has not been so labeled by the courts, an emergingdoctrine of “fair circumvention.”

My aims herein are both descriptive and normative. As to theformer, I believe that the reference to an emerging judge-made commonlaw of fair circumvention more accurately describes what the courts are doing in fact when confronted with cases that test the limits of thestatutory ban on circumventing or trafficking in circumvention devices.To decide DMCA disputes, the courts are borrowing—sometimesexpressly, sometimes not—from copyright law principles, including fairuse. As to the latter, I conclude that further development of legal doctrinein this area ought to rest on the forthright acknowledgment and evolutionof an express judge-made “fair circumvention” exception to the DMCAthrough the ordinary means of case-by-case adjudication. As I willdiscuss below, acknowledging the link between the existing fair usedoctrine and the emerging “fair circumvention” doctrine would offer afar more robust analytical toolset than exists under the courts’ currentapproach, which involves divining (or, more accurately, imputing)legislative intent in the face of statutory silence. Indeed, several of thefactors the courts have seized upon as most salient, such as the nature ofthe underlying expressive work and the threat of economic harm to theplaintiff, are as clearly encompassed within the historical contours ofcopyright’s fair use doctrine as they are detached from the actualstatutory text of the DMCA.

An analytical caveat is in order, however: it is not my contentionthat the courts have imported copyright’s fair use exception wholesaleinto the DMCA. Although the statute states Congress’s intention topreserve fair use,^[7] the anti-circumvention provisions of the DMCA makeno express exceptions for fair uses,^[8] and some courts have rejected thenotion that a party accused of a DMCA violation may interpose a fair usedefense.^[9] Although some language in more recent court decisions is morehospitable to the possibility that a fair use defense may exist in theDMCA context,^[10] no court has yet gone so far as to hold thatcircumventing a technological protection measure is permissible underthe DMCA in order to make a fair use of the underlying copyrightedwork.^[11] My contention, rather, is that courts are borrowing (and should ​borrow) factors and criteria that have developed under fair use en routeto creating what I have labeled a separate doctrine of “faircircumvention” under the DMCA. Continued borrowing of the same sortmay, in time, blur or even eliminate the distinction that presently existsbetween the scope of copyright’s fair use exception and the narrower, butgrowing, DMCA exception for fair circumvention. The fact that theborrowing is as yet incomplete, however, should not obscure thesubstantial amount that has already occurred or preclude furtherexpansions of the fair circumvention doctrine in the future as an ordinaryadjunct of the courts’ common-law powers to interpret and apply federalcopyright law.

Part II of this Article briefly surveys the enactment and text ofthe DMCA before turning to a detailed consideration of several casesthat have given the statute either a conspicuously broad, or aconspicuously narrow, reading. My review suggests that courts on bothsides of the divide over the proper reading of the DMCA are issuingopinions that are difficult to square with the statutory text they purport toconstrue. Because the text alone appears inadequate to explain the actualresults in DMCA cases, the inquiry expands in Part III of this Article toconsider whether other principles can be invoked to support the courts’decisionmaking. My principal conclusions here are that (1) courts may,and properly should, draw upon the broader corpus of federal copyrightlaw to illuminate the meaning of the DMCA; (2) partly for historicalreasons and partly because of the particular terms of the copyrightstatutes, federal copyright law leaves a comparatively broad domainavailable for judicial policymaking; and (3) the development ofcopyright’s fair use doctrine provides a useful model for the courts tofollow in crafting exceptions to liability under the DMCA. This analysisalso suggests that one of the criticisms leveled against some of the courtsin DMCA cases—to wit, that the courts are substituting their own policypreferences for Congress’s—is ill-founded in view of the courts’prominent historical role in the development of copyright law. Part IVseeks to guide further judicial development of the emerging faircircumvention doctrine by analogizing, first, to principles of fair use, andsecond, to policy distinctions that have been made in the DMCA cases todate. The goal here is to suggest that the courts should make explicit adebate that is currently occurring sotto voce under the surface of theirDMCA opinions. To foster development of a coherent body of doctrine ​under the DMCA, the courts should engage in a forthright balancing ofthe interests at stake in DMCA cases. The courts should not discountcopyright holders’ interests in protecting their works, nor knowledgeableconsumers’ interests in making ordinary uses of lawfully acquiredelectronics products, but should simply make explicit the factors theyemploy in declaring one or the other set of interests to predominate in agiven case.

II. Judicial Constructions of the DMCA edit

Because the courts in DMCA cases have declared repeatedly thattheir decisions rest solely on a consideration of the statute’s literal text, itis pertinent to begin by reviewing the circumstances that led Congress toenact the statute and the language it selected to effectuate its intent. Thesections that follow will summarize the background and text of thestatute’s anti-circumvention provisions before turning to a critical reviewof some of the key cases that have arisen under the DMCA to date.

A. Statutory Background edit

In 1996, at the urging of the Clinton Administration,^[12] the World Intellectual Property Organization (“WIPO”) promulgated two newtreaties dealing, among other issues, with what was perceived as agrowing threat of copyright infringement in the digital arena. The treatiesproposed to authorize content owners to deploy technological measuresthat could effectively prevent such infringements from occurring bylimiting users’ practical ability to access or copy the protected works,except upon terms specified by the content owners. It was broadlyunderstood, however, that such access and copying controls could neverbe designed to be perfectly effective in all circumstances—sufficientlysophisticated users could circumvent the protections and access or copythe work.^[13] To forestall this outcome, the 1996 WIPO treaties required ​signatory nations to adopt new legislation punishing circumvention ofaccess and copy control technologies.

First, Article 11 of the WIPO Copyright Treaty required asfollows:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.^[14]

The contemporaneous WIPO Performances and Phonograms Treatyimposed a similar obligation, directing in Article 18 as follows:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.^[15]

Title I of the DMCA, captioned the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” was enacted toimplement both of these treaty requirements.^[16]

The relevant provisions of the DMCA define three distinctoffenses, one of which forbids circumvention of a technological measurewhile the other two forbid trafficking in circumvention devices. Thestatute’s anti-circumvention provision provides that: “No person shallcircumvent a technological measure that effectively controls access to awork protected under this title.”^[17] The statute’s two anti-traffickingprovisions are each directed against different types of prohibited devices.The DMCA first forbids the making of or trafficking in devices thatcircumvent the same sort of access controls that are the subject of theanti-circumvention clause:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

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(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.^[18]

The other provision forbids making or trafficking in devices thatcircumvent copy control technologies:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.^[19]

As drafted, there is a certain lack of parallelism in the statute: theprovision forbidding trafficking in copy control circumvention devices isnot matched, as the access control trafficking provision is, by a separateclause outlawing the use of such a device, although this is perhapsexplainable by the fact that circumventing a copy control measure maybe separately punishable as copyright infringement.^[20]

The DMCA provided definitions of two of the key phrasesemployed in the statute’s liability provisions. First, Congress definedwhat it meant by “circumvention”:

[T]o “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, ​deactivate, or impair a technological measure, without the authority of the copyright owner . . . .^[21]

Congress next provided an explanation of the requirement that an accesscontrol measure “effectively control access” to a copyrighted work:

[A] technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.^[22]

As will be seen below, these definitional provisions have caused theirown share of difficulty for courts called upon to construe the DMCA.^[23]

Congress contemplated three broad types of exemptions from theDMCA’s liability provisions. First, the statute includes a number ofprovisions excusing certain types of users from the statute’s liabilityprovisions, including nonprofit libraries, archives, and educationalinstitutions;^[24] law enforcement and intelligence agents;^[25] competingdevelopers of interoperable computer software;^[26] and encryption andsecurity researchers.^[27] Second, Congress provided a mechanism by whichcertain types of works would be exempted from the DMCA’s liabilityprovisions by means of a triennial administrative rulemaking conductedby the Library of Congress upon the recommendation of the Register ofCopyrights.^[28] Finally, Congress sought to guide judicial constructions of ​the statute’s liability provisions by listing a number of countervailing policies and rights with which it disclaimed any intention to interfere, including fair use^[29] and freedom of expression.^[30] Congress similarly stated that it did not intend the DMCA to alter the traditional judge-made contours of secondary liability^[31] or to force technology manufacturers to include any particular form of technological protection measure in their products.^[32]

B. The DMCA in the Courts edit

The cases that have delineated the boundaries of the anticircumventioncause of action may be divided, without undueoversimplification, into two categories. On one side fall the cases thathave construed the DMCA broadly, enlarging its remedial reach byconstruing uncertainties in the statutory text against accused violators.On the other side are the cases that have given the statute a narrowreading, enunciating principles that support limits on the scope ofDMCA liability. Both sets of cases, however, give the statute a readingthat is at once rigidly formalistic and highly selective—that is, the courtssimultaneously insist that their interpretations are commanded by thestatutory text while disregarding or construing away other provisions thatactually appear in the DMCA.

1. The DeCSS Case edit

One of the earliest judicial applications of the DMCA, and stillthe high-water mark of the expansive view of the statute, was the socalled“DeCSS” litigation.^[33] DeCSS was a computer program written toenable users to decode the audiovisual content of DVD-Video discs ​(more colloquially, “DVDs”) which had been scrambled using a rudimentary form of digital encryption known as the “Content Scramble System,” or “CSS.”^[34] DeCSS made it possible for users to decrypt (and thereafter to view or copy in unencrypted form) the content of a CSS-encrypted DVD even if the user had not paid a licensing fee to the DVD Copy Control Association (“DVDCCA”), an industry group, for an authorized decryption key.^[35]

Set-top DVD players produced by consumer electronicsmanufacturers included lawful, DVDCCA-licensed decryption keys.^[36]Jon Johansen, a Norwegian teenager, acting in concert with unidentifiedothers, obtained such a licensed DVD player^[37] and “reverse engineered”it to discover the algorithm employed by the CSS encryption system.^[38]The practical necessity of designing DVD players to be able to play backencrypted DVD discs effectively ensured that such reverse engineeringwould be successful—that is, that it would be possible from studying theinput (an encrypted DVD) and the output (the decrypted video content)to draw correct inferences about the decryption algorithm that was beingemployed.^[39] The result of Johansen’s work was the DeCSS program, ​which was posted on Johansen’s web site and quickly spread to hundreds of other sites worldwide.^[40]

Journalist Eric Corley copied the DeCSS program to his webserver and made it available for readers to download.^[41] This prompted aDMCA lawsuit against Corley and his publishing company. Corleyremoved DeCSS from his web site following the district court’s grant ofa preliminary injunction to the movie studio plaintiffs,^[42] but maintainedhyperlinks from his site to other sites that “purport[ed] to offer [thesoftware] for download.”^[43] The district court found that both Corley’soriginal posting of the DeCSS program and his posting of hyperlinks toother web sites where the program had been made available violatedSection 1201(a)(2)’s prohibition on trafficking in access controlcircumvention technologies.^[44]

The court reasoned that CSS was a “technological measure thateffectively controls access to” a copyrighted work—to wit, the moviecontained on a DVD disc. It rejected the defendants’ arguments that CSScould not be said to “effectively control access to” the copyrightedcontent of a DVD because it was a minimal form of encryption.^[45] Thecourt reasoned that because CSS, “‘in the ordinary course of itsoperation, requires the application of information or a process or atreatment, with the authority of the copyright owner, to gain access to awork,’”^[46] it satisfied the statutory definition of “effectively controlaccess.” The protections of the DMCA, in other words, did not turn uponwhether the measure was actually “effective”—that is, whether itfunctioned in such a way as to frustrate unauthorized attempts to accessthe work.^[47] Rather, the court reasoned, the dispositive question waswhether the copyright owners had granted express permission for the ​creation of the circumvention tool at issue: DeCSS circumvented what was “effectively” an access control mechanism because the copyright holder had provided an avenue for authorized decryption of the protected content (to wit, purchase of a license from the DVDCCA) with which the designers of DeCSS had failed to comply.^[48] Because there was no “authority of the copyright owner” for the creation of such a tool, the court reasoned, the dissemination of DeCSS by the defendants necessarily violated the DMCA.^[49]

The court rejected the defendants’ argument that circumventionof a technological measure for the purpose of making a fair use of theunderlying copyrighted work would be permissible under the DMCA.^[50]The court’s reasoning began with the truism that copyright infringementand violations of the anti-circumvention provisions of the DMCA aredistinct offenses.^[51] A defense to the former, accordingly, was notautomatically a defense to the latter. The statutory text, however, wassilent on the question whether fair use could be raised as a defense to aclaim under the DMCA. The court construed this silence as an implicitlegislative rejection of the fair use defense, reasoning that “[i]f Congresshad meant the fair use defense to apply to such [DMCA] actions, itwould have said so.”^[52] Rather than “saying so,” however, Congress gaveindications that the court found adequate to conclude that fair use of theunderlying copyrighted work could not immunize a party from liabilityfor circumventing an access control mechanism. The court pointed, first,to the fact that authorization by the copyright holder was a completedefense to a DMCA violation; second, to the fact that Congress delayedthe statute’s effective date; and third, to the enumeration of someexceptions to liability in the DMCA itself.^[53] The court found the DMCA“crystal clear” in providing no fair use defense to a trafficking claim^[54]and refused any suggestion that it should construe the statute in favor ofsuch an exception. “In such circumstances,” the court concluded, “courts ​may not undo what Congress so plainly has done by construing the words of the statute to accomplish a result that Congress rejected.”^[55]

The persuasive force of Reimerdes is occasionally impaired by the heated—at times, borderline intemperate—rhetoric of the court’sopinion. For example, the court seemed to insinuate that the DeCSS technology was guilty by association with various sordid topics also covered in the defendants’ magazine.^[56] The court apparently found it damning that the defendants had previously published “a guide to the federal criminal justice system for readers charged with computer hacking.”^[57] Elsewhere, the court likened the defendants to political assassins and the DeCSS code to a virus.^[58] It painted the authors of DeCSS, who plausibly claimed to be motivated by the desire to play their lawfully purchased DVD discs on computers running the Linux operating system,^[59] essentially as anarchists, describing them as “adherents of a movement that believes that information should beavailable without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.”^[60] The effect is to make it difficult to tell whether, and to what extent, thecourt’s sweeping reading of the DMCA’s liability provisions, and its denial that copyright’s fair use doctrine was relevant to the reach of the ​DMCA, truly rest upon a careful construction of the statute rather than on the judge’s manifest visceral dislike of the defendants.^[61]

That the court’s hostile rhetoric provides the key tounderstanding its analysis is further evidenced by the fact that,considered on its own terms, Reimerdes articulates a facially dubiousconstruction of the statutory text. Section 1201(c)(1) of the DMCA, forexample, states Congress’s intention not to constrict the scope of the fairuse doctrine.^[62] According to the Reimerdes court, this provision signifiedonly that fair use remained a defense to a claim for copyrightinfringement but did not provide a defense to a claim arising under theDMCA.^[63] As so construed, however, Section 1201(c)(1) is meresurplusage, adding nothing to the statutory fair use defense to copyrightinfringement already provided in Section 107 of the Copyright Act.^[64]Settled principles of interpretation counsel against a construction thatrenders statutory language superfluous.^[65]

Still more troubling is the tension between the court’sinterpretation of the text of the DMCA and the provisions of thecopyright treaties that the DMCA was enacted to implement. As theReimerdes court noted,^[66] Congress passed the DMCA to implement theUnited States’ obligations under the WIPO Copyright Treaty.^[67] Article 11of that Treaty requires signatory nations to prohibit circumvention oftechnological measures “that restrict acts . . . which are not authorized bythe authors concerned or permitted by law.”^[68] Fair use of copyrighted ​works, however, is expressly “permitted by law” in the United States.^[69] To the extent that the DMCA is interpreted to implement the treaty obligations that prompted its enactment,^[70] accordingly, the statute cannot plausibly be read to forbid circumvention for fair use.^[71] Although the Reimerdes court recognized that its interpretation of the DMCA “le[ft] technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so,” it declared that this problem was “a matter for Congress.”^[72] A court less animated by hostility to the defendants in the case at bar might more readily have perceived such an absurd consequence as evidence of error in its interpretation of the statute.^[73]

2. The Durable Goods Cases edit

In a trio of more recent cases—Chamberlain Group, Inc. v. Skylink Technologies, Inc.,^[74] Lexmark International, Inc. v. Static Control Components, Inc.,^[75] and Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc.^[76]—two federal courts ofappeals refused to apply the DMCA to prevent circumvention of accesscontrol mechanisms embedded in durable goods.

​=====a. Chamberlain v. Skylink=====

In Chamberlain v. Skylink, the plaintiff, Chamberlain,manufactured garage door openers that incorporated what the courtpresumed to be copyrighted computer software code.^[77] Chamberlain’ssoftware was designed to recognize a certain set of transmitted numericalcodes as valid commands to open the owner’s garage door.^[78]Chamberlain included in its software a separate routine that would“reset” the listing of accepted codes, enabling a user to open their garagedoor even if the first transmitted code was not recognized as valid.^[79]Skylink, a competitor, produced and sold a “universal transmitter” thatwas capable of operating with garage door openers sold by many othercompanies, including Chamberlain’s. Skylink’s transmitter was designedto transmit a burst of three code sequences in rapid succession that wouldeither be recognized as a correct code, or else trigger the “reset” routinein Chamberlain’s software—resulting, in either case, in the opening ofthe owner’s garage door.^[80]

Chamberlain sued, alleging that the code sequences weretechnological measures that protected access to the copyrighted softwareembedded in its garage door openers. The district court granted summaryjudgment to Skylink on Chamberlain’s DMCA claim, and the court ofappeals affirmed.^[81]

The court in Chamberlain, like the court in Reimerdes,characterized the dispositive issue as whether the defendant hadauthority to access plaintiff’s copyrighted work in the manner in which itdid.^[82] The two courts’ conceptions of what “authorization” entailed,however, could scarcely be more dissimilar. Whereas Reimerdes hadlooked only at whether the copyright owner had granted expresspermission for the defendant’s access,^[83] the Chamberlain court viewedthe lack of Chamberlain’s permission as essentially irrelevant to the ​question before it, because the copyright statute itself supplied the necessary “authorization” for Skylink’s access.^[84] So long as Skylink’s product was designed to enable uses that the copyright statute permitted, in other words, trafficking in such a device did not constitute a DMCA violation notwithstanding Chamberlain’s denial of permission.^[85] The court rejected Chamberlain’s argument (which the Reimerdes court surely would have accepted) that “all such uses of products containing copyrighted software to which a technological measure controlled access are now per se illegal under the DMCA unless the manufacturer provided consumers with explicit authorization.”^[86]

Although the court declared that its “inquiry ends with [the] clearlanguage” of the DMCA,^[87] it went on to consider the issue in light of thestatute’s background, structure, and purpose. It found that the “[s]tatutorystructure and legislative history both make it clear that § 1201 appliesonly to circumventions reasonably related to protected rights.”^[88] Quotingfrom the legislative history, the court emphasized Congress’s intention“‘to specify, with as much clarity as possible, how the right against anticircumventionwould be qualified to maintain balance between theinterests of content creators and information users.’”^[89] That balancewould be upset, the court reasoned, if the statute were read asChamberlain wished. The crux of the matter, in the court’s view, wasChamberlain’s insistence “that no necessary connection exists betweenaccess and copyrights”^[90]—that is, that anti-circumvention liability underthe DMCA was unrelated to the question whether the defendant hadinfringed, or contributed to the infringement, of plaintiff’s copyrights.Noting that the DMCA was enacted in part to deter copyrightinfringement, the court reasoned that it would be illogical to construe thestatute so as to make irrelevant the question whether the plaintiff actuallyfaced potential infringement. The court concluded that “Congress couldnot have intended such a broad reading of the DMCA.”^[91]

As a policy matter, this interpretation of the DMCA may havemuch to commend it. It harmonizes the DMCA with the remainder of theCopyright Act in a fashion that self-consciously seeks to preserve the ​Copyright Act’s balancing of the interests of content creators on the one hand and consumers and users of copyrighted works on the other.^[92] Furthermore, it neatly sidesteps the often-debated question whether the DMCA is inherently inimical to fair use.^[93]

The court’s interpretation, however, makes a sufficiently poor fitwith the text of the DMCA as enacted to raise challenging questionsconcerning the decision’s persuasive force in future cases. Nothing in thetext of Section 1201, for example, expressly conditions a defendant’santi-circumvention or trafficking liability upon a prior showing ofcopyright infringement.^[94] Articulating the contrary view, the CopyrightOffice has suggested that, while circumvention of a copy controlmechanism for a noninfringing purpose would survive scrutiny under theDMCA, circumvention of an access control mechanism for the samepurpose would be illegal.^[95] The Chamberlain court’s apparentassumption that the defendant must have either infringed, or at leasthelped contribute to the infringement of, plaintiff’s copyrights alsocoexists uneasily alongside Congress’s express disavowal in the DMCAof any intention to alter the existing contours of secondary liability forcopyright infringement.^[96] In short, by purporting to rest its decision upon ​the “clear language” of the DMCA,^[97] the Chamberlain court may have limited the persuasive reach of its own decision, for the actual language of the DMCA may as readily support a conclusion opposite the one the Chamberlain court reached.^[98]

This is particularly true with respect to the court’s treatment of the pivotal issue of authorization. The DMCA, as the court correctly observed, “defines circumvention as an activity undertaken ‘without theauthority of the copyright owner.’”^[99] The court concluded, however, that the copyright owner’s denial of authorization was not dispositive, basedon the court’s conclusion that other provisions of the Copyright Act provide an alternative source of “authority.”^[100] This latter interpretation,to be sure, finds support in sources outside the statutory text.^[101] A courtmore inclined to focus on the text of the statute itself, however,^[102] mightas readily conclude that the phrase “authority of the copyright owner”^[103]necessarily implies that such authority is for the “copyright owner” togrant or withhold at its election.^[104]

b. Lexmark International v. Static Control Components edit

The court in Lexmark International, Inc. v. Static Control Components, Inc.^[105] avoided the Chamberlain court’s entanglement in the thicket of “authorization,” relying instead on the dubious notion that the purchase of a product containing unencrypted software code necessarily conferred on consumers the right to extract and copy that code.^[106]

Lexmark involved a DMCA claim brought by a manufacturer ofcomputer printers against a supplier of aftermarket refilled tonercartridge components.^[107] Lexmark, the printer manufacturer, sought toavail itself of the protections of the DMCA by embedding a piece ofcopyrighted software, the “Printer Engine Program,” in its printers, andanother software program, the “Toner Loading Program,” in its tonercartridges.^[108] One purpose of these programs was to limit consumers’ ​freedom to install non-Lexmark toner cartridges by disabling their printers if they did so. Upon powering up, each Lexmark printer performed a two-step authentication sequence.^[109] It first queried a separate microchip inside the inserted toner cartridge, which contained an eight-byte key combination. Applying a publicly available encryption algorithm known as “Secure Hash Algorithm-1” or “SHA-1,”^[110] the printer calculated an authentication code based on the toner cartridge’s eight-byte key. Authentication succeeded if the result the printer calculated matched a parallel calculation undertaken by the chip on the toner cartridge itself. During the second stage of the authentication sequence, the Printer Engine Program downloaded a copy of another very short program (the Toner Loading Program) from a chip on the toner cartridge and computed a checksum of the downloaded bytes.^[111] This stage of the authentication procedure succeeded if the checksum the Printer Engine Program calculated matched a value encoded elsewhere on the toner cartridge chip. The printer shut itself down unless both steps of the authentication procedure succeeded. The authentication procedure sought to ensure that consumers used only toner cartridges (whether new or refilled) supplied by Lexmark.^[112]

Although defendant Static Control Components (“SCC”) did notcompete directly with Lexmark, it sold chips to Lexmark’s competitorsin the market for remanufactured toner cartridges.^[113] SCC’s chips enabledLexmark’s competitors to produce toner cartridges that mimicked thetwo-stage authentication sequence when used in a Lexmark printer. SCCadvertised that its chips successfully bypassed the first step of Lexmark’sauthentication sequence.^[114] For the second step of the sequence, SCC’schips contained a byte-for-byte copy of Lexmark’s Toner LoadingProgram, which enabled the chip to pass Lexmark’s “checksum”calculation.^[115]

Lexmark charged that SCC’s chips infringed Lexmark’scopyrights in the Printer Engine Program and Toner Loading Program.Lexmark also alleged that SCC’s chips circumvented, in violation of theDMCA, a technological measure (specifically, the first step of the two-stepauthentication sequence) that “effectively controlled access” to itscopyrighted programs.^[116] A federal district court agreed and preliminarily ​enjoined SCC’s distribution of its chips.^[117] On SCC’s appeal, a fractured panel of the Sixth Circuit reversed.^[118] The three panel judges wrote three separate opinions, although they agreed unanimously that Lexmark could not show a likelihood of success on its DMCA claim.^[119]

The panel first expressed doubt that Lexmark’s Toner LoadingProgram (“TLP”), which was largely dictated by functional concerns andoccupied only 37 to 55 bytes of memory, was eligible for copyrightprotection at all—a necessary prerequisite to any claim under theDMCA.^[120]

Lexmark’s longer and more complex Printer Engine Program(“PEP”), SCC conceded, was protected by copyright.^[121] The panel,however, reasoned that the printer’s authentication sequence failed to“effectively control access” to that program. The PEP, the panelobserved, was built into every Lexmark printer and existed, unencrypted,in printer memory, where a sufficiently technologically knowledgeableuser could access it at any time without needing to employ Lexmark’sauthentication sequence. For that reason, the court wrote:

It is not Lexmark’s authentication sequence that “controls access” to the Printer Engine Program. It is the purchase of a Lexmark printer that allows “access” to the program. Anyone who buys a Lexmark printer may read the literal code of the Printer Engine Program directly from the printer memory, with or without the benefit of the authentication sequence, and the data from the program may be translated into readable source code after which copies may be freely distributed. No security device, in other words, protects access to the Printer Engine Program and no security device accordingly must be circumvented to obtain access to that program code.^[122]

Because any user could copy the PEP without using the authenticationsequence, the court continued, that sequence could not be said to “control ​access” to the program, and certainly could not be said to do so “effectively”:

Because the statute refers to “control[ling] access to a work protected under this title,” it does not naturally apply when the “work protected under this title” is otherwise accessible. Just as one would not say that a lock on the back door of a house “controls access” to a house whose front door does not contain a lock and just as one would not say that a lock on any door of a house “controls access” to the house after its purchaser receives the key to the lock, it does not make sense to say that this provision of the DMCA applies to otherwise-readily-accessible copyrighted works. Add to this the fact that the DMCA not only requires the technological measure to “control[ ] access” but also requires the measure to control that access “effectively,” and it seems clear that this provision does not naturally extend to a technological measure that restricts one form of access but leaves another route wide open.^[123]

The panel denied that its interpretation of “effectively controlsaccess” precluded application of the DMCA unless the plaintiff hadcreated “an impervious shield to the copyrighted work.”^[124] The panelinsisted that the DMCA’s protection did not turn upon “the degree towhich a measure controls access to a work.”^[125] But for the DMCA toapply, the court maintained that “the challenged circumvention devicemust indeed circumvent something. . . .”^[126] Because any user could readthe Printer Engine Program directly from the printer, there was nothingto circumvent.

The two concurring opinions offered other avenues to the samedestination. One judge concurred separately on the grounds that everypurchaser of a Lexmark printer “acquire[d] an implied license to use thePrinter Engine Program for the life of that printer,”^[127] and accordingly,the DMCA could not be found to protect any “right of the copyrightowner to prevent the consumer from using” that program.^[128] Anotherjudge would have gone even farther, concluding that extending theprotections of the DMCA to Lexmark would be incompatible with ​legislative intent because of its anticompetitive effects in the market. Congress, the concurring opinion emphasized, never “intend[ed] to allow the DMCA to be used offensively in this manner,” which in the concurring judge’s view allowed a manufacturer to “create monopolies for replacement parts. . . .”^[129] A device that circumvented such a monopoly-creating mechanism, this opinion reasoned, could not be said to be “primarily designed or produced for the purpose of” accessing copyrighted works.^[130] The concurrence expressed the fear that, in the wake of the panel’s decision, companies would still try to “use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[,]” and believed a broader opinion was required to forestall such a result.^[131]

Lexmark, like Chamberlain, differs markedly from Reimerdes inits reading of the DMCA. The most striking contrast between Lexmarkand its predecessors, however, lies less in the court’s analytical approachand more in the attitudes and sympathies revealed in the judges’opinions. The court in Reimerdes was openly hostile towardstechnologically sophisticated parties who wished to use their ownconsumer electronic products in a manner inconsistent with the desires ofthose products’ suppliers.^[132] Lexmark is as bountifully indulgent towardssuch technology-savvy users as Reimerdes was unsparingly averse. It isscarcely possible to imagine the court in Reimerdes penning a sentencelike this one from Lexmark:

Anyone who buys a Lexmark printer may read the literal code of the Printer Engine Program directly from the printer memory, with or without the benefit of the authentication sequence, and the data from the program may be translated into readable source code after which copies may be freely distributed.^[133]

One cannot, of course, take this sentence literally; it is likely thatonly a minuscule number of printer owners in fact possess thetechnological acumen to “read the literal code of the Printer EngineProgram directly from the printer memory” as the panel somewhatbreezily suggests.^[134] Lexmark, however, remains significant insofar as itevaluates the plaintiff’s technological protection scheme from theperspective of a knowledgeable, sophisticated end-user, rather than ​insisting, as Reimerdes does, that users must remain ignorant of the capabilities of the electronic products they have purchased.^[135]

Nevertheless, despite its normative appeal, Lexmark ultimatelyarticulates an interpretation of the DMCA that is not readily squared withthe statutory text. The court’s stated assumption that any purchaser of aproduct containing unencrypted software code is necessarily allowed toextract that code from the product and make copies^[136] surely has thegeneral rule backwards. Although the court’s analysis would be correctas to uncopyrighted code (or, what is the same thing, the uncopyrightablefunctional characteristics of code that is nominally subject tocopyright^[137]), purchasers enjoy no general right to copy and distributeunencrypted copyrighted works.^[138] Audio compact discs (“CDs”), forexample, ordinarily omit any form of encryption to protect the musicalworks recorded thereon,^[139] but no one (and certainly not the Lexmarkcourt) believes that purchasers are generally immune from liability ifthey copy and distribute the unencrypted content of a music CD.^[140]Although it is true (indeed, it is tautological) that a plaintiff cannotprevail under the DMCA where there is no technological measureprotecting the work in question (and therefore nothing to “circumvent”), ​Lexmark’s broader suggestion of a general right to copy unencrypted digital works surely goes too far.

Lexmark also made no serious effort to parse and apply thestatutory definition of the pivotal DMCA clause—“effectively controlsaccess.” Although the court included a citation to the district court’sdiscussion of the statutory definition,^[141] absent from the court of appeals’opinion is any analysis of whether Lexmark’s authentication sequence“in the ordinary course of its operation, require[d] the application ofinformation, or a process or a treatment, with the authority of thecopyright owner, to gain access to the work.”^[142] Instead, Lexmark—whiledenying that it was doing so^[143]—applied an understanding of “effectivelycontrols access” that expressly made the extent of statutory protectiondependent upon the relative strength of the plaintiff’s technologicalprotection measure.^[144] Is the Lexmark court’s effective revision of theDMCA preferable as a matter of policy? Perhaps. But it remainsexceedingly difficult to shoehorn the court’s interpretation into theexisting statutory language.^[145] The tension between the court’s reasoningand the binding text of the DMCA can only limit the decision’sprecedential value—to the detriment of technology users who wouldbenefit from a more robustly articulated set of limitations on the scope ofthe statute’s circumvention and trafficking prohibitions.

c. Storage Technology Corporation v. Custom Hardware Engineering edit

In Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc.,^[146] the same court that decidedChamberlain sought again to borrow from ordinary copyright principlesto limit the reach of the DMCA. Plaintiff Storage Technology Corp.(“StorageTek”) manufactured data tape storage libraries that includedcopyrighted maintenance software code that loaded automatically at ​startup.^[147] In the event of a maintenance problem, the software was designed to transmit coded error messages describing the symptoms of the problem only if supplied with a valid password.^[148] Custom Hardware Engineering (“CHE”) was a competitor of StorageTek’s in the aftermarket for technical service and maintenance of StorageTek’s products. To access the maintenance error codes on tape libraries manufactured by StorageTek, CHE designed two devices to circumvent StorageTek’s password protection system.^[149] Doing so enabled CHE to diagnose and repair problems with tape libraries manufactured by StorageTek.^[150] StorageTek sued, alleging both copyright infringement and violation of the DMCA. It alleged that, by causing StorageTek’s customers’ tape libraries to transmit coded error messages, CHE had circumvented its password authentication mechanism and thereby gained access to (and created an unauthorized copy of) StorageTek’s copyrighted maintenance software.^[151]

The court rejected StorageTek’s copyright claims, finding CHE’s activities protected by a statutory safe harbor for copies necessarily made in the course of maintenance or repair of a computer.^[152] The failure of StorageTek’s claims for copyright infringement, the court then continued, was all but dispositive of its claims under the DMCA. The court reasoned, citing Chamberlain, that:

To the extent that CHE’s activities do not constitute copyright infringement or facilitate copyright infringement, StorageTek is foreclosed from maintaining an action under the DMCA. That result follows because the DMCA must be read in the context of the Copyright Act, which balances the rights of the copyright owner against the public’s interest in having appropriate access to the work. ​Therefore, courts generally have found a violation of the DMCA only when the alleged access was intertwined with a right protected by the Copyright Act. To the extent that StorageTek’s rights under copyright law are not at risk, the DMCA does not create a new source of liability.^[153]

This interpretation of the DMCA rests upon the foundation of thecourt’s earlier decision in Chamberlain and, like that decision, is subjectto the objection that the DMCA itself does not require a plaintiff todemonstrate an antecedent act of copyright infringement as aprecondition to liability under either the anti-circumvention or traffickingprovisions.^[154] Again, although the result in StorageTek might bedefensible (and even superior) as a matter of wise policy, it is remarkablehow far the court was obliged to bend the statutory text to reach itsresult.

III. How Should the Courts Interpret the DMCA? edit

If there is a common thread to be found uniting the judicialdecisions that construe the DMCA broadly with those that construe thestatute narrowly, it is their shared disregard of inconvenient provisionsthat actually appear in the statutory text and point to a conclusioncontrary to the one the court reached. Reimerdes effectively struck outthe DMCA’s express guarantee of continued fair use;^[155] Chamberlain, thestatute’s reference to “the authority of the copyright owner;”^[156] andLexmark, its definition of “effectively controls access.”^[157] Efforts todevelop a coherent jurisprudence under the DMCA are only hampered,however, by judicial insistence on disregarding the text of the statutewhile simultaneously declaring that the text alone justifies the decision inthe case at bar. However desirable either set of decisions might appear asa normative matter, their precedential force will be diminished if futurecourts find it difficult to harmonize DMCA precedents with the languageof the DMCA itself. Judged against the standard of fidelity to thestatutory text—the standard that the courts themselves, by their repeatedreferences to what they portray as unambiguous statutory commands,seem to invite—the principal DMCA cases on both sides come up short.

If the courts are not simply enforcing the DMCA according to itsliteral terms, they must necessarily be exercising a measure ofinterpretive discretion—creating meaning from, rather than merelyfinding it in, the statutory language. Forthright judicial acknowledgmentof this reality, rather than the making of unsustainable pronouncementsas to what the statutory text alone is perceived to command, holds greater ​promise in developing a rational and consistent body of DMCA case law. Rather than ignoring provisions of the DMCA that suggest decisions contrary to the ones they wish to reach, we should prefer instead that the courts acknowledge the necessity of venturing beyond the four corners of the enacted text. Although such an acknowledgement is potentially controversial largely for political reasons,^[158] the foreseeable benefits to both the courts and public from considering additional indicia of meaning beyond the bare text of the DMCA suffice to outweigh the risks. The benefits to be gained include rationality and predictability, and ultimately a DMCA regime that more closely resembles the world Congress believed it was creating in 1998.

The discussion that follows will begin by situating the DMCAwithin the broader corpus of federal copyright law. Although the DMCAcreated new obligations beyond those that already existed under thecopyright statute, it nevertheless drew heavily upon copyright concepts,language, and policies in delimiting those obligations. Because of themultiple interconnections between the DMCA and the remainder offederal copyright law, the analysis then turns to the question how thoseconnections can and should illuminate judicial decisions. Finding theDMCA to be unclear or internally inconsistent at a number of keyjunctures, I conclude that the courts should play the same policy-makingrole that they have historically performed in guiding the evolution ofcopyright. Finally, by way of illustrating some consequences that mightfollow if the courts were to proceed along the lines identified herein, Iconsider whether existing copyright principles of fair use may serve toguide future decisions in DMCA cases.

A. Reading the DMCA as a Copyright Statute edit

One identifiable source of the courts’ varying readings of theDMCA lies in their disagreements about the relevance, or lack thereof, ofthe remaining provisions of the Copyright Act. As some courts (andsome litigants) have portrayed it, the DMCA stands entirely apart frompreexisting copyright law.^[159] Congress, on this reading, created a sui generisregulatory regime for technological protection systems, just as ithad previously done for semiconductor chips,^[160] digital audio recordingdevices,^[161] bootleg recordings,^[162] and boat hulls.^[163] The courts, on this ​view, should not look outside the DMCA’s anti-circumvention and trafficking provisions to inquire, when adjudicating a DMCA claim, whether a plaintiff’s copyright interests are at stake.^[164]

Taken as a whole, however, the statutory text does notcomfortably accommodate the attempts of decisions such as Reimerdesto draw a sharp dividing line between the offense of copyrightinfringement on the one hand and violations of the DMCA on theother.^[165] The two are clearly more closely related, their boundaries morepermeable, than these opinions suggest.

First, the DMCA contains multiple provisions that referexplicitly to copyright language and concepts. Reference to the broadercorpus of federal copyright law is essential to give these provisions of theDMCA any meaning at all. Liability for both circumvention andtrafficking, for instance, exists only where technological measuresprotect a presently copyrighted work; that is, the existence of a validcopyright is an express statutory precondition both to a claim forcopyright infringement and a claim arising under the DMCA.^[166] One ofthe DMCA’s two bans on trafficking in circumvention devices imposesliability only where “a right of a copyright owner” is at stake.^[167] TheDMCA does not tell us what the “rights of a copyright owner” are; onlythe Copyright Act can do that.^[168] To take another example: although theDMCA refers repeatedly, at critical junctures, to the concept of theauthority of the copyright owner,^[169] nothing in the DMCA identifies thecopyright owner whose “authority” is needed; only the Copyright Actdoes that.^[170] Furthermore, nothing in the DMCA tells us how todetermine the scope of the “rights, remedies, limitations, or defenses tocopyright infringement, including fair use,”^[171] or the scope of “vicariousor contributory liability for copyright infringement,”^[172] with whichCongress disclaimed any intent to interfere.

The interconnections between copyright and the DMCA are evenmore substantial and pervasive, however, than the foregoing paragraphmight suggest. For example, the remedies Congress provided under the ​DMCA closely track the remedies available for copyright infringement.^[173] The DMCA’s anti-circumvention provisions were enacted alongside provisions creating new defenses to claims for copyright infringement.^[174] Both Congress and the President justified the enactment of the DMCA as a necessary measure to deter copyright infringement.^[175] The statute gives authority to craft exceptions from its liability provisions in part to the Register of Copyrights.^[176] Even the placement of the statute within the United States Code carries colorable significance: although an early version of the legislation that became the DMCA proposed to “move[] the anti-circumvention provisions out of Title 17” on the grounds that “these regulatory provisions have little, if anything, to do with copyright law,”^[177] the eventual inclusion of the anti-circumvention provisions alongside the rest of the federal copyright law ​in Title 17 would appear to indicate that Congress recognized their connection with copyright.

More persuasive, therefore, are those courts that have attemptedto harmonize the DMCA with other provisions of copyright law,applying the settled principle that statutes in pari materia should beconstrued together.^[178] Construing the DMCA alongside the rest ofcopyright law makes available powerful analytical tools of provenusefulness. Consider, for example, the functionality principle, whichrests upon the dichotomy long recognized in copyright law between ideaand expression. The familiar general rule is that, even where copyrightprotects a work, copyright protection does not extend to aspects of thework that are predominantly functional rather than expressive.^[179] Courtsapplying this principle have declined to extend copyright protection toportions of computer software^[180] or other articles^[181] that reflectpredominantly functional, rather than expressive or creative, concerns.^[182]The functionality doctrine serves a valuable purpose in ensuring thatcopyright protection does not restrict that which should remain “openand free to the use of the public.”^[183]

Interpreting the DMCA as a copyright statute brings copyright’sfunctionality doctrine into play. The functionality principle, in turn, doesmuch to justify decisions like Lexmark and Chamberlain. Because theworks the plaintiffs in both those cases sought to protect were closely ​bound up with utilitarian considerations,^[184] the functionality principle would suggest that those works were entitled to comparatively limited copyright protection. Interpreting the DMCA to extend comparably limited protections in the same circumstances might explain the courts’ decisions for the defendants in each of those cases. Conversely, interpreting the DMCA to provide a sui generis form of protection unconnected with traditional intellectual property principles makes such decisions correspondingly difficult to understand in view of their apparent departures from the text of the DMCA as written.

The functionality principle is only one of many useful analyticaltools that the courts have developed during the more than two centuriessince the enactment of the first federal copyright law.^[185] Many of thoseconcepts carry as much potential explanatory power in today’s digitalworld as they did before the enactment of the DMCA. DMCAjurisprudence would be needlessly impoverished if the courts werewalled off from considering the broader history of federal efforts toprotect expressive works. Borrowing from long-established copyrightprinciples carries no perceptible risks of flouting legislative intent, andthe courts should, therefore, assume that general copyright principlesremain applicable in cases under the DMCA.

B. Copyright, Statutory Interpretation, and the DMCA edit

If, as I have argued, it is correct to interpret the DMCA as acopyright statute, rather than as a sui generis regulatory regimeunmoored from the broader corpus of intellectual property law, onepractical implication is a relatively greater policymaking role for thecourts. Although the development of federal copyright law has restedpartly upon a series of statutory enactments,^[186] the copyright statutes havealways left the courts with substantial policymaking responsibilities.Indeed, some of the most important (and now unquestioned) doctrines inall of copyright, such as fair use, evolved from courts seizingpolicymaking functions even in the absence of an express legislativedelegation.^[187] Congress, for its part, has generally not sought to craftexhaustive, comprehensive statutory text that leaves no discretion to the ​courts; to the contrary, it has repeatedly blessed judicial exercises of independent policymaking in matters of copyright.^[188] Copyright treatises, too, recognize the historical and ongoing policymaking responsibilities of the courts.^[189]

This history puts one obvious objection to the creation of ajudge-made fair circumvention doctrine in a rather different light. Insubstance, the objection would be that to recognize a new judge-madedoctrine of fair circumvention would be an affront to Congress’slawmaking role.^[190] Congress having spoken, the argument would run, thecourts’ obligation as “faithful agents” of the legislature^[191] is to apply theenacted text as written, and to leave to Congress the task of craftingexceptions from whatever liability rules it chose to adopt.^[192] The fact thatCongress expressly established certain limitations upon the liability rulesadopted in the DMCA, this line of reasoning would continue, onlystrengthens the presumption against the recognition of additionalunstated exceptions by judicial fiat.^[193]

To be sure, the courts can and do rely on the enacted statutorytext as the primary and best indication of legislative intent,^[194] althoughthe command to apply the enacted text as written is not inexorable.^[195]Nevertheless, whatever the overall merits of the interpretive theory thatcourts must act only as “faithful agents,” applying the statutory textprecisely as written by Congress without interjecting their own ​preferences or policy judgments,^[196] it seems quite clear that the role of the courts in the copyright arena is not, and properly should not be, so limited. To the contrary, the text and history of federal copyright legislation in the United States have made the courts more coequal partners than mere servants of the legislature.

The courts would face a nearly insurmountable task in striving toapply the Copyright Act strictly as written, for the statute includesprovisions that simply cannot be enforced according to their literalterms.^[197] The statute’s simultaneous grants of overlapping rights tomultiple parties without expressly ranking their relative priority haveraised challenging questions of policy for the courts.^[198] Elsewhere, thestatute leaves pivotal terms entirely undefined.^[199] The nature of the text to ​be construed, at the outset, thus poses a substantial challenge to the notion that the courts in copyright cases may simply begin and end their inquiry by parsing the statute.^[200]

Indeed, the legislative record reveals a number of instances inwhich Congress in the 1976 Act intended to defer to prior judicialpractice, rather than providing new rules that would override what thecourts had previously done. The areas in which Congress deferred toprior judicial practice include the core statutory requirement oforiginality^[201] and the reach of protection for depictions of usefularticles.^[202] Similarly, although the Copyright Act (unlike, say, the PatentAct^[203]) omits any express provisions making persons other than directinfringers liable for copyright infringement,^[204] the courts haveconsistently applied common-law principles of secondary liability in thecopyright context.^[205] This judicial development of secondary liability for ​copyright received Congress’s blessing in the committee reports accompanying the Copyright Act of 1976.^[206]

Even in the absence of express legislative ratification, the courtsoccasionally exercise their interpretive authority under the Copyright Actto protect countervailing policies. Thus, for example, although the literaltext of the Copyright Act appears to assign the copyright in scholarlyworks to the institutions that employ the scholar,^[207] the courts haverefused to so construe the act on public policy grounds, instead invokinga judge-made “teacher’s exception” to vest in scholars themselves thecopyright interests in their own work.^[208] Indeed, the Supreme Court hasrepeatedly exercised its interpretive authority to “import” new theories ofliability, and new defenses, from the Patent Act into the Copyright Act—citing, in each case, what the Court portrayed as strong policy reasons forreading the Copyright Act as if it included language actually found inanother statute altogether.^[209]

Thus, although nominally a creature of statute, federal copyrightlaw has actually grown and evolved as a hybrid of statutory andcommon-law principles. Partly for historical reasons, and partly becauseof the vagueness of many of the governing provisions of the CopyrightAct, the courts in copyright cases have long exercised substantialpolicymaking duties. Theories of statutory interpretation that demote thecourts to a more passive role, commanding them merely to readCongress’s words and apply them exactly as written, make an especiallypoor fit for copyright law. The applicable statutory provisions, with fewexceptions, simply are not written in such a way as to make such judicialpassivity feasible, and two centuries of copyright history haveaccustomed the courts to a more coequal role in the development ofcopyright doctrine—a role Congress has repeatedly recognized andtowards which it has repeatedly expressed approval.

The DMCA is of a piece with the rest of federal copyright law inthat the text as enacted fairly cries out for a careful, nuanced parsingrather than wooden literalism. The DMCA, like the rest of the copyrightstatute, includes multiple provisions that seem to pull in conflicting ​directions.^[210] What is worse, the statute’s definitional provisions are a muddle, creating uncertainty at the very point where the statute most needs (and promises) clarity. Consider first the legislative definition of “circumvention,” the key analytical concept around which both the anti-circumvention and anti-trafficking liability provisions ultimately revolve:

[T]o “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner. . . .^[211]

At the most literal level, every work published in digital form is“scrambled” or “encrypted” solely by reason of being digital. Any workpublished in digital format consists of a series of ones and zeroes thatmust be deciphered to reveal the work’s original content^[212]—whether thatcontent represents the language of a poem, the color of an artist’s palette,the sound of a French horn, or the images of a motion picture. Playing anaudio CD on one’s computer is an exercise in converting those ones andzeroes back into sound waves^[213]—a process that, under any ordinaryunderstanding of those words, might be thought to involve“descrambling” or “decryption” of the content. It appears to have beenquite far from Congress’s intention to forbid ordinary uses of digitalworks not also protected by a separate DRM mechanism,^[214] but the textas enacted leaves ample room for a textual formalist argument that theDMCA’s reach is much more expansive in actuality.^[215] Something morethan mere literalism, in other words, is necessary to prevent thisdefinitional provision from vastly expanding the scope of the DMCAbeyond the limits of Congress’s apparent intent.^[216]

The other pertinent statutory definition—that of “effectivelycontrols access”—is still worse, although the reasons why this is sobecome clear only after first attempting to construe the statute withoutreference to the definition. The DMCA forbids circumvention, or thetrafficking in tools that enable circumvention, of technological measuresthat “effectively control access” to a copyrighted work.^[217] Ordinary ​readers or courts might attempt to parse this language literally, only to find themselves stymied by ambiguity. Reasoning from the text alone, one might get as far as the notion that “effectively controls access” must mean something different from merely “controls access,”^[218] otherwise the word “effectively” becomes superfluous.^[219] But what, then, can “effectively” mean?^[220] Perhaps Congress meant to require a certain minimum strength of access control—that is, perhaps Congress meant to say to the courts: a technological protection measure must not only protect access to a work, but must meet some minimal standard of efficacy in doing so; a trivial cipher will not suffice.^[221] But the text might equally well support another reading, one that would preclude inquiry into the strength of an access control measure. Congress might have feared, for instance, that courts would interpret the word “control” as requiring absolute control, and added the word “effectively” as a way to signal that something less was required. That is, Congress might have meant the word “effectively” to mean something like “approximately” or “in general.”^[222] Having identified this potential ambiguity in the statutory text, the reader might consult the definition to see what Congress actually intended.

The definition, however, turns out in reality to be an anti-definition. It obfuscates, rather than clarifies, the meaning of the term itpurports to define:

[A] technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.^[223]

Absolutely nothing in this text speaks to the question whether the word“effectively” is meant to connote strength or its absence. Moreover, thedefinitional provision compounds the ambiguity of the rest of the text byintroducing new concepts—such as “the application of information” and“the authority of the copyright owner”—that are difficult to anchor inany ordinary understanding of the terms they purport to define. Is thecopyright owner’s authority relevant to an understanding of whether aDRM mechanism has “effectively” restricted access to a work? Or to ​whether the mechanism “controls” access to the work? Or to whether what is controlled amounts to “access” rather than something else? It is no easy task to shoehorn this definition into the statutory phrase meant to embody it. Small wonder that the courts find the statute confusing.^[224]

There is, in short, no reason to think that the DMCA is lessamenable to the methods of judicial policymaking that have guided thedevelopment of the rest of copyright law. To the contrary, the DMCAsuffers from some of the same sorts of infirmities that have confirmedthe need for an independent judicial role.

C. Fair Use and Interbranch Partnership edit

There is precedent for the courts exercising their substantialpolicymaking powers in the domain of copyright to craft judge-madeexceptions to liability based on public policy considerations even wherethe literal text of the statute seems to require a finding of infringement.Two features of copyright law in particular support an ongoing judicialrole in recognizing exceptions to liability. First, copyright infringementis a strict liability offense; there is no requirement in the statute that theinfringer have acted willfully or knowingly,^[225] or even consciously.^[226]Even so-called “innocent infringers” fall within the statute’s liabilityprovisions, although they may be liable for reduced statutory damages.^[227]Second, the statute provides severe penalties for copyright infringement.A copyright plaintiff who cannot prove a penny of actual injury maynevertheless receive statutory damage awards that loom extraordinarilylarge in many cases: $750 to $30,000 per work infringed, increased to upto $150,000 per work if the infringement was willful.^[228] Many courts ​have applied these provisions strictly even where the resulting award of damages seems far disproportionate to any plausible claim of actual harm by the plaintiff.^[229] The conjunction of strict liability and heavy penalties makes it all too easy to imagine cases where literal application of the statute would yield an unjust result, requiring an award of damages far disproportionate to the defendant’s actual culpability.

The courts, however, have played an important role here—aiming, with at least some success, to sand the rough edges off ofcopyright’s strict-liability, sanctions-heavy regime. They have done soby what might at first glance seem to be sheer defiance of Congress,refusing to find liability even in circumstances where the statute appearsto require it. Nowhere has this been more clear than in the developmentof copyright’s doctrine of fair use.

The Supreme Court has characterized fair use as a limitation oncopyright holders’ exclusive rights when “rigid application of thecopyright statute . . . would stifle the very creativity which that law isdesigned to foster.”^[230] Although the fair use doctrine is now recognizedby statute,^[231] fair use received legislative recognition only after more thana century of growth as a judge-made copyright exception. The modernfair use doctrine is commonly traced to Justice Story’s 1841 opinion inFolsom v. Marsh.^[232] The case was brought by the holder of the copyrightin a twelve-volume biography of President Washington that consistedpredominantly of edited reproductions of Washington’s own presidentialpapers.^[233] The defendant copied more than three hundred pages ofWashington’s records from the plaintiff’s books in order to produce his ​own two-volume biography of Washington.^[234] Justice Story found that both Washington’s private^[235] and public correspondence^[236] were covered by copyright. Justice Story, although “not without some regret,”^[237] came to the conclusion that the defendant had simply taken too much of the plaintiff’s work, and issued a permanent injunction against thepublication or sale of the defendant’s two-volume Washington biography.^[238] He based this decision on the likelihood that the defendant’s work would dampen market demand for the plaintiff’s work by supplying an effective substitute:

If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto. . . . In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.^[239]

​Enacted more than sixty years after Justice Story’s decision inFolsom v. Marsh, the landmark Copyright Act of 1909 made no mentionof fair use.^[240] Nevertheless, courts applying the Copyright Act of 1909continued to recognize circumstances in which a defendant whoseactivities amounted to infringement under the literal text of the statutewould nevertheless be excused from liability.^[241] By no later than the1940s, the courts were beginning to echo Justice Story’s language fromFolsom in determining whether particular acts of copying could beexcused under the fair use doctrine:

Whether a particular use of a copyrighted article, without permission of the owner, is a fair use, depends upon the circumstances of the particular case, and the court must look to the nature and objects of the selections made, the quantity and value of material used, and the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects of the original work.^[242]

Fair use was recognized as expressing a judge-made policy againstimposing liability,^[243] notwithstanding the literal terms of the copyrightstatute, where it was believed that imposing liability would disservepublic purposes.^[244]

​Fair use is a sufficiently settled principle today that it is perhapseasy to forget the doctrine’s origins as a judge-made shield against whatthe courts, based on considerations of sound policy, perceived to be theover-deterrent effects of the copyright statutes as written. The parallelsbetween the DMCA and the rest of federal copyright law, accordingly,leave ample room for similar doctrinal developments under the DMCA.It would be consistent with the substantial policymaking responsibilitiesthe courts have long exercised under copyright for the courts to identifycountervailing policy considerations militating against DMCA liability inproper cases. As the example of the fair use doctrine shows, where suchcountervailing policy considerations exist, the courts stand on relativelyfirm historical ground in declining to impose liability even where thedefendant’s conduct appears to fall within the literal prohibitions of thestatute. It would, accordingly, be broadly consistent with the historicaldevelopment of federal copyright law and with the courts’responsibilities as coequal partners in copyright policymaking to developa set of rules defining circumstances in which the literal terms of theDMCA’s circumvention and trafficking prohibitions will not be giveneffect—to craft, as I have labeled it herein, a doctrine of faircircumvention.^[245]

IV. Towards Fair Circumvention edit

If the courts are, as the foregoing analysis suggests, free todevelop their own exceptions to the DMCA’s liability provisions, howshould they do so? The courts’ present approach—announcingessentially ad hoc exceptions based upon dubious assertions about whatthe statutory text expressly requires—yields perhaps the worst of allpossible worlds. By purporting to rest their decisions upon the statutorytext alone, the courts seem to eschew broader policy considerationsbased upon sources that are surely pertinent to a complete understandingof the DMCA (such as the requirements of the relevant 1996 WIPOTreaties or the Clinton Administration’s 1995 White Paper^[246]) but whichlie outside the statute itself. And by making overbroad or unjustifiedstatements about what the statutory text alone is perceived to require, thecourts undermine the authority of their own positions—future courts maysimply examine the statute for themselves and discover that it does notreally read as advertised.

​The answer is not, it seems to me, for the courts to come to anagreement on what the literal text of the DMCA really requires. Suchstrict formalism is a recipe for circularity, given that the DMCA (no lessthan the rest of the copyright statute) includes provisions pointing inmultiple directions. The statute speaks with many voices at once: punishcircumvention, but protect libraries and schools;^[247] punish trafficking, butallow computer security and encryption researchers to share theirdiscoveries;^[248] “protect[ ] . . . [the] right[s] of a copyright owner,” butwithout “affect[ing] . . . fair use.”^[249] At the end of the day, the statute maynot have a single clear meaning to discover.^[250]

That is not to say, however, that the courts are left withoutguidance. To the contrary, just as other copyright doctrines offerexplanatory tools the courts may employ in DMCA cases,^[251] the fair usedoctrine itself gives the courts many analogous concepts upon which a“fair circumvention” doctrine might rest. The discussion that follows willbegin by assessing what copyright doctrine, including principles of fairuse, might teach future litigants and courts about the proper constructionof the DMCA, then conclude by evaluating possible arguments againstthis approach.

A. From Fair Use to Fair Circumvention edit

The fair use provision of the copyright statute gives the courts anonexclusive list of factors to consider in determining whether anychallenged use is fair: “(1) the purpose and character of the use,including whether such use is of a commercial nature or is for nonprofiteducational purposes; (2) the nature of the copyrighted work; (3) theamount and substantiality of the portion used in relation to thecopyrighted work as a whole; and (4) the effect of the use upon thepotential market for or value of the copyrighted work.”^[252]

It is not difficult to imagine ways in which these same factorsmight be profitably analogized to explain limits on the reach of DMCAliability under the rubric of “fair circumvention.” The second fair usefactor, for example—“the nature of the copyrighted work”—recognizesthat copyright law does not extend exactly the same level of protection toall works. Rather, as the Supreme Court has explained, “some works arecloser to the core of intended copyright protection than others, with theconsequence that fair use is more difficult to establish when the former ​works are copied.”^[253] Copyright protects works lying along a broad continuum between “creative or instructive”^[254] works at one end and works of comparatively little originality (such as factual compilations) at the other.^[255] The closer a work falls to the creative/expressive end of the continuum, the stronger the author’s claim of entitlement to restrict subsequent uses of the work, and the less room is available for colorable claims of fair use.^[256] So, too, in the DMCA context, the courts might usefully differentiate between circumvention aimed at allowing the circumventer to access and copy a creative, expressive work (such as the movies at issue in Reimerdes) and circumvention that merely enables access to less expressive, more utilitarian works (as in Chamberlain and Lexmark).^[257] Just as the fair use doctrine would do relatively little to defeat a claim of copyright infringement where works closer to the “core” of copyright protection are copied,^[258] a doctrine of fair circumvention would impose comparatively weak limits on the reach of DMCA liability in similar circumstances.

Risks to intellectual property markets, to take another example,are readily encompassed within both the first and, especially, the fourthfair use factors. Here, too, it is analytically useful to distinguish betweencases in which circumvention of a DRM mechanism threatens to providea complete substitute for authorized purchases of an expressive work (thesituation in Reimerdes),^[259] and cases in which circumvention merely exposes a maker of consumer products to additional marketplace competition (as in Chamberlain and Lexmark). Copyright protects holders from certain types of economic injury—principally, those stemming from substitution of the defendant’s copy for the ​plaintiff’s^[260]—but not all economic injuries from copying are redressable as copyright infringement.^[261] Settled principles of fair use, again, may provide a useful guide to courts in developing a doctrine of fair circumvention under the DMCA.^[262]

Finally, consider the problem of circumvention undertaken fornoninfringing purposes. Suppose I try to spark a discussion among myCopyright students about the fair use claim at issue in Hustler Magazine, Inc. v. Moral Majority, Inc.,^[263] the infamous Jerry Falwell Campari adparody case.^[264] To place the dispute in its historical context as part of thelong-running feud between the late Reverend Falwell and the publisherof Hustler magazine, I wish to show my students a one-minute clip fromdirector Miloš Forman’s acclaimed motion picture, The People vs. Larry Flynt,^[265] which includes a subplot revolving around Flynt’s copyrightinfringement lawsuit.^[266] To avoid losing the DVD in my office or leavingit in the classroom, I wish to extract a one-minute excerpt from the DVDonto my laptop, which I can then hook up to the classroom projector.^[267]Copyright law would surely permit this; mine is a paradigmatic fairuse—a minuscule excerpt (third factor) used for nonprofit educationalreasons (first factor) with no likelihood of impairing, and indeed someprospect of benefiting, the market for sales or exhibitions of authorizedcopies of The People vs. Larry Flynt (fourth factor).^[268]

​But to copy the excerpt from the DVD, I must bypass CSS—andthat, the Reimerdes opinion warns me sternly, I may not do.^[269] When thefilmmakers sue me and my employer for violating the DMCA, what canwe do? The Library of Congress recently provided a DMCA exemptionpermitting the extraction of clips from CSS-encrypted DVDs, but it doesnot apply to law professors.^[270] If my employer and I must rely (as thecourts have said we must) solely upon the statutory text of the DMCA,then our defense is colorable, but hardly bulletproof—according to caseslike Reimerdes, the text of the statute forbids circumvention even for fairuses, notwithstanding Congress’s stated intention to the contrary. TheWhite Paper and the WIPO Treaties, however, both seem to approve ofcircumvention undertaken for such noninfringing purposes.^[271] “Faircircumvention” would permit the courts in DMCA cases to consult theseoutside sources for guidance, ultimately yielding greater doctrinalconsistency between the defenses available to claims for copyrightinfringement and for violations of the DMCA.

By citing these examples, I do not mean to suggest thatcopyright’s fair use doctrine should operate as an outer boundary on thescope of a permissible fair circumvention defense under the DMCA. Mypoint is less ambitious—even if the courts do not transplant copyright’sfair use doctrine, root and branch, into the somewhat different soil of theDMCA,^[272] it is nevertheless true that existing principles of fair useprovide at least some analytical guidance upon which the courtsprofitably may rely as they begin to develop a separate body of “faircircumvention” jurisprudence.^[273] What future directions that body of law ​may take are for the courts to say. It is better that they begin to do so rather than continuing to invoke the fiction that the text of the statute alone commands their contradictory decisions.

B. Possible Criticisms edit

The mode of analysis sketched out in the preceding section,which generally contemplates construing the DMCA in the light of thebroader corpus of copyright law and with particular attention to the fairuse doctrine, might plausibly be attacked as either unduly lax or undulyconfining. Neither objection, it seems to me, ought to obscure itspotential advantages in achieving rationality and coherence of judicialdoctrine under the DMCA.

First, construing the DMCA in light of the broader purposes ofcopyright poses no real risk that unchecked judicial activism will thwartlegislative intent. My recommendation is not that the courts make up forthemselves a set of policies and purposes for the DMCA, but rather thatthey seek guidance from a comparatively well-developed body ofanalytically related copyright jurisprudence. Construing related statutorytexts harmoniously is a familiar exercise well within the courts’institutional competence.^[274] And many interpretive theories recognize thepropriety of consulting broader statutory purposes as aids to determinethe meaning of an enacted text.^[275] Congress spoke in copyrightlanguage^[276] and was thinking copyright thoughts^[277] in the DMCA, and it ​would hardly represent judicial usurpation of lawmaking authority for the courts to construe the statute consistently with its background.

The objection from the opposite direction would be thatconstruing the DMCA as a part of the broader corpus of copyright lawthreatens, rather than protects, the public’s interest in access toexpressive works, in view of the generally pro-plaintiff orientation of thecourts in copyright cases.^[278] I readily concede that the conception ofcopyright as predominantly a vehicle for advancing public ends, althoughfirmly grounded in the text of the Constitution,^[279] has met with a chillierreception from the courts in recent decades.^[280] But it has hardlydisappeared from the landscape. Courts and commentators alike continueto speak of copyright’s value in promoting broader public ends involvingthe availability of expressive works, not merely as a mechanism fortransferring wealth from the public to copyright holders.^[281] And the scopeof protections available under copyright law for the public interest, evenunder a restrictive view, surely compare favorably with the mostrestrictive current interpretations of the DMCA. Analogizing from thelatter to the former, accordingly, ought to pose no serious risk ofcontracting, and some possibility of enlarging, the sphere of viable publicuses of digital copyrighted works.

V. Conclusion edit

The institutional response of the courts to the enactment of theDMCA has been puzzling. Federal copyright law has long developed asan exercise in interbranch partnership, with Congress and the courtsgenerally acting as coequal partners in the development of doctrine. Thecourts have played particularly important roles in limiting the potentiallyundesirable reach of copyright’s liability and penalty provisions, whichmight readily threaten other expressive values if applied strictly aswritten. Under the DMCA, in contrast, the courts seem to have ceded a ​good deal of their historical policymaking role in copyright matters back to Congress. Both the cases construing the DMCA broadly and the cases construing it narrowly have attempted to portray their results as resting not upon policy considerations, but instead as commanded solely, or primarily, by the literal text of the statute. In doing so, the courts have at once demoted themselves from the coequal policymaking role they have traditionally occupied in copyright and imposed on the text of the DMCA a far greater burden than it can colorably bear, for like other copyright statutes, the DMCA includes a multiplicity of provisions pointing in different directions.

The effect has been a devaluing of copyright doctrine in cases under the DMCA to no identifiable benefit. The development of a cohesive body of DMCA case law is hampered by the courts’ insistence on disregarding provisions that actually appear in the statute. Doing so both diminishes the persuasive force of their decisions (for later courts may decide instead to emphasize the provisions of the DMCA that the earlier courts discounted) and inhibits consideration of plainly relevant source materials outside the enacted text. Copyright law, for its own valid purposes, long ago outgrew such strict formalism. It would be far preferable for the courts in DMCA cases to do likewise.

Perhaps they have. After all, cases like Chamberlain and Lexmark do seem to draw upon matters of legislative policy and intent to give the DMCA quite a different reading than did cases like Reimerdes. Perhaps the courts are silently thinking “fair circumvention” thoughts, while outwardly preserving a façade of formalist orthodoxy to forestall intervention by a more narrowly textualist Supreme Court. If that is their game, however, it seems hardly to be worth the candle. A court’s insistence in case #1 that the literal text of the DMCA says something it clearly does not leaves all the parties in case #2 worse off, for they must either frame their own arguments around the supposed literal text of the statute (a recipe for continued confusion) or invoke policy considerations outside the statutory text that precedent has declared to be irrelevant.

Development of a rational, cohesive body of doctrine under the DMCA would be served far more readily by a forthright judicial declaration that, although particular conduct might be encompassed within the four corners of the statute’s liability provisions, it nevertheless will not be punishable for good and adequate reasons of policy. Debate thereafter could revolve around ascertaining the reasonable limits of those policies and any countervailing principles (prominently including, to be sure, fidelity to the intent of Congress and the enacted text where it supplies an ascertainable rule of decision). This is the route the courts took when developing copyright’s fair use doctrine, and it remains a sensible alternative for developing a “fair circumvention” doctrine under the DMCA.