“Fair Circumvention” Published

Hot on the heels of Bill’s new trademark piece, I’m happy to announce that my new article on the DMCA, which has been available in electronic form for quite a while, is now available in ink-and-pulp format as well, 74 Brook. L. Rev. 1 (2008). As of this writing, it hasn’t yet been posted on the publisher’s web site, but it should show up there as well in time.

The new article is an analytical bookend to my earlier piece on DRM and the process of fair use, focusing less this time on DRM technologies and more on the response of the courts that have been called upon to construe the DMCA, some of which have interpreted the statute broadly and some of which have gone the other direction.  Although I suspect that my sympathies will be pretty well known to readers of this blog (they lie, on the whole, with cases like Chamberlain and Lexmark that have given the anticircumvention provisions of the DMCA a comparatively narrow reading), I find that court opinions on both sides of the divide contain aspects that are pretty problematic, challenges that may limit their persuasive force going forward. At bottom, the article is a call for the courts to interpret the DMCA more holistically, in line with preexisting copyright principles that some commentators have argued (mistakenly, in my view) are no longer relevant.

The article is Creative Commons licensed (BY-SA-3.0-US, if you’re curious; I was tangentially involved with the “U.S. port” of the CC licenses during my time with the Berkman Center’s Cyberlaw Clinic, and putting our work product to good use seemed like the right thing to do). So if you have ever wanted to turn a law review article into, say, a comic book, here’s your source material!  I’ll depart somewhat from the convention of posting my abstract here; instead, if you’re interested, the article’s “Conclusion” section is available after the jump.

The institutional response of the courts to the enactment of the DMCA has been puzzling. Federal copyright law has long developed as an exercise in interbranch partnership, with Congress and the courts generally acting as coequal partners in the development of doctrine. The courts have played particularly important roles in limiting the potentially undesirable reach of copyright’s liability and penalty provisions, which might readily threaten other expressive values if applied strictly as written. 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.

2 Responses to ““Fair Circumvention” Published”

  1. Congrats Tim! Great work.

  2. [...] illustrate the point, I put my recent piece on the DMCA up on Wikisource.  Here it is: Fair Circumvention, 74 Brook. L. Rev. 1 (2008). The [...]