Timothy K. Armstrong

“ It is not difficult to imagine ways in which these same factors might be profitably analogized to explain limits on the reach of DMCA liability under the rubric of “fair circumvention.” The second fair use factor, for example—“the nature of the copyrighted work”—recognizes that copyright law does not extend exactly the same level of protection to all works. Rather, as the Supreme Court has explained, “some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” ”

“ Reference to the broader corpus of federal copyright law is essential to give these provisions of the DMCA any meaning at all. Liability for both circumvention and trafficking, for instance, exists only where technological measures protect a presently copyrighted work; that is, the existence of a valid copyright is an express statutory precondition both to a claim for copyright infringement and a claim arising under the DMCA. [164] One of the DMCA’s two bans on trafficking in circumvention devices imposes liability only where “a right of a copyright owner” is at stake. ”

“ DeCSS was a computer program written to enable 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.” [32] 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. ”

“ 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. [254] 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) . ”

“ 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. ”

“ As the example of the fair use doctrine shows, where such countervailing policy considerations exist, the courts stand on relatively firm historical ground in declining to impose liability even where the defendant’s conduct appears to fall within the literal prohibitions of the statute. ”

“ Even in the absence of express legislative ratification, the courts occasionally exercise their interpretive authority under the Copyright Act to protect countervailing policies. Thus, for example, although the literal text of the Copyright Act appears to assign the copyright in scholarly works to the institutions that employ the scholar, [205] the courts have refused to so construe the act on public policy grounds, instead invoking a judge-made “teacher’s exception” to vest in scholars themselves the copyright interests in their own work. ”

“ To be sure, the courts can and do rely on the enacted statutory text as the primary and best indication of legislative intent, [192] although the command to apply the enacted text as written is not inexorable. [193] Nevertheless, whatever the overall merits of the interpretive theory that courts must act only as “faithful agents,” applying the statutory text precisely as written by Congress without interjecting their own preferences or policy judgments, [194] it seems quite clear that the role of the courts in the copyright arena is not, and properly should not be, so limited. ”

“ 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. ”

“ By citing these examples, I do not mean to suggest that copyright’s fair use doctrine should operate as an outer boundary on the scope of a permissible fair circumvention defense under the DMCA. My point is less ambitious—even if the courts do not transplant copyright’s fair use doctrine, root and branch, into the somewhat different soil of the DMCA, [270] it is nevertheless true that existing principles of fair use provide at least some analytical guidance upon which the courts profitably may rely as they begin to develop a separate body of “fair circumvention” jurisprudence. ”

“ Overprotecting intellectual property is as harmful as underprotecting it. . . . Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. ”

“ Consider, for example, the functionality principle, which rests upon the dichotomy long recognized in copyright law between idea and expression. The familiar general rule is that, even where copyright protects a work, copyright protection does not extend to aspects of the work that are predominantly functional rather than expressive. [177] Courts applying this principle have declined to extend copyright protection to portions of computer software [178] or other articles [179] that reflect predominantly functional, rather than expressive or creative, concerns. ”

“ Copyright law would surely permit this; mine is a paradigmatic fair use—a minuscule excerpt (third factor) used for nonprofit educational reasons (first factor) with no likelihood of impairing, and indeed some prospect of benefiting, the market for sales or exhibitions of authorized copies of The People vs. Larry Flynt (fourth factor) . [266]
But to copy the excerpt from the DVD, I must bypass CSS—and that, the Reimerdes opinion warns me sternly, I may not do. ”

“ The court’s stated assumption that any purchaser of a product containing unencrypted software code is necessarily allowed to extract that code from the product and make copies [134] surely has the general rule backwards. Although the court’s analysis would be correct as to uncopyrighted code (or, what is the same thing, the uncopyrightable functional characteristics of code that is nominally subject to copyright [135] ) , purchasers enjoy no general right to copy and distribute unencrypted copyrighted works. ”

“ 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. [83] 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.” ”

“ B. Copyright, Statutory Interpretation, and the DMCA If, as I have argued, it is correct to interpret the DMCA as a copyright statute, rather than as a sui generis regulatory regime unmoored from the broader corpus of intellectual property law, one practical implication is a relatively greater policymaking role for the courts. Although the development of federal copyright law has rested partly upon a series of statutory enactments, [184] the copyright statutes have always left the courts with substantial policymaking responsibilities. ”

“ And a work becomes “fixed,” we learn, “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” ”

“ And by making overbroad or unjustified statements about what the statutory text alone is perceived to require, the courts undermine the authority of their own positions—future courts may simply examine the statute for themselves and discover that it does not really read as advertised. ”

“ Fair use of copyrighted works, however, is expressly “permitted by law” in the United States. [67] To the extent that the DMCA is interpreted to implement the treaty obligations that prompted its enactment, [68] accordingly, the statute cannot plausibly be read to forbid circumvention for fair use. [69] 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.” ”

“ The common-law doctrine of fair use, for example, began—and, even after receiving express statutory recognition in the Copyright Act of 1976, [3] continues to evolve—as a judge-made exception to the statutory exclusive rights of copyright holders. [4] So viewed, recent decisions may be creating what amounts to a judge-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 emerging doctrine of “fair circumvention.” ”

“ 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 analytical tools that the courts have developed during the more than two centuries since the enactment of the first federal copyright law. ”

“ First, to say that fair use doctrine as a whole suffers from an unpredictability problem, see David Nimmer, “Fairest of Them All” and Other Fairy Tales of Fair Use, 66 Law & Contemp. Probs. 263 (2003) , is not to say that the outcome of any individual fair use dispute is necessarily unknowable in advance: some uses are clearly fair. See, e.g., Lenz v. Universal Music Corp., No. C 07-3783 JF, 2008 WL 3884333, at *4 (N.D. Cal. Aug. 20, 2008) (dismissing copyright holder’s concerns about unpredictability of fair use) ”

“ Skylink, a competitor, produced and sold a “universal transmitter” that was capable of operating with garage door openers sold by many other companies, including Chamberlain’s. Skylink’s transmitter was designed to transmit a burst of three code sequences in rapid succession that would either be recognized as a correct code, or else trigger the “reset” routine in Chamberlain’s software—resulting, in either case, in the opening of the owner’s garage door. ”

“ As a policy matter, this interpretation of the DMCA may have much to commend it. It harmonizes the DMCA with the remainder of the Copyright 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. ”

“ The courts should not discount copyright holders’ interests in protecting their works, nor knowledgeable consumers’ interests in making ordinary uses of lawfully acquired electronics products, but should simply make explicit the factors they employ in declaring one or the other set of interests to predominate in a given case. ”

“ Even so-called “innocent infringers” fall within the statute’s liability provisions, although they may be liable for reduced statutory damages. [225] Second, the statute provides severe penalties for copyright infringement. A copyright plaintiff who cannot prove a penny of actual injury may nevertheless receive statutory damage awards that loom extraordinarily large in many cases: $750 to $30,000 per work infringed, increased to up to $150,000 per work if the infringement was willful. ”

“ The Chamberlain court’s apparent assumption that the defendant must have either infringed, or at least helped contribute to the infringement of, plaintiff’s copyrights also coexists uneasily alongside Congress’s express disavowal in the DMCA of any intention to alter the existing contours of secondary liability for copyright infringement. ”