by Jeremiah Clifton
Fair Use
DRM and copyright in general must always include a conversation about fair use. Fair use is like an unwieldy battle axe used to defend a peasant village: it is a formidable weapon, but hitting the mark is questionable, and if it doesn’t, there is not much else for defense or a chance to take a second swing. However, fair use is sometimes the only defense available to people using works under copyright as the stepping stone to push science and art to new levels. The entire idea of copyright in the United States comes from an attempt by the Framers of the Constitution “To promote the Progress of Science and useful Arts.”1 The basic idea behind fair use is that a user of works under copyright doesn’t always have to have the permission of the copyright holder in order to take advantage of what would be considered an exclusive right to the holder. This is an immense gray area and presents vagueness at best, but the shiftiness and at times seemingly unwieldiness of fair use is intentional in the sense that it allows for the broadest interpretation, so each act is taken into consideration of and to itself.
Fair use is codified in Title 17 of the U.S. Code and listed as one of the “limitations on exclusive rights” granted to copyright holders in Title 17.2 The law gives specific examples of fair use, stating that reproduction “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”3 But these are not the only applicable purposes. The law offers guidelines “in determining whether the use made of a work in any particular case is a fair use.”4 The guidelines give a user the overall aspects to consider but no real rules, and the judiciary a starting point in deciding copyright infringement. The factors of consideration in determining fair use are
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.5
The section on fair use concludes by stating that unpublished works will receive the same considerations as to fair use.6
When considering the DMCA and specifically legislated DRM, Congress knew fair use was at issue. Representative Bliley claimed that the House Committee on Commerce “considered it particularly important to ensure that the concept of fair use would remain firmly established in the law” while reviewing and amending the DMCA, also claiming that the anticircumvention provision [17 U.S.C. § 1201 (a)(1)] was essential to the bill and “crafted by the Commerce Committee to protect ‘fair use.’”7 Representative Bliley is referring to the power given the Library of Congress to make exceptions to the anticircumvention clause.8 He and other members of Congress felt that the DMCA could become the “legal foundation for a society in which information becomes available only on a ‘pay-per-use’ basis,”9 basically, a society where access and use are strictly dictated by the copyright holder. His rationale for the power to exempt liability of violation directly stems from fair use protection and the need to keep a check on copyright holders’ control of access: “Let us make no mistake about the scope of what we are doing here today in adopting [the DMCA], about the tremendously powerful new right to control access to information that we are granting to information owners for the very first time.”10 The checks provided by a periodic review by the Library of Congress and others, and an open forum in which to make claims and air grievances in order to determine the effects of DRM on access to information and other lawful uses of copyrighted works was the balance Congress found to offset the new rights DRM granted to copyright owners through the DMCA.
On November 27, 2006 the Register of Copyrights, under the Library of Congress and using the authority granted in 17 U.S.C. § 1201, issued the final rule on exemption to prohibition on circumvention of copyright protection systems for access control technologies, exempting noninfringing uses of six classes of copyrighted works for the following three year period.11 Essentially, the exemptions to 17 U.S.C. (a)(1)(A) granted by the Copyright Office
will, under certain circumstances, allow users to circumvent [DRM] in order to (1) make compilations of video clips for film and media studies courses; (2) archive obsolete computer programs or games; (3) bypass “dongles,” or hardware locks, that are obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect wireless telephone handsets to communication networks; and (6) test for or correct security flaws in works distributed on CD.12
The Copyright Office doesn’t really overturn the prohibition on circumvention; rather, through deliberation and process it determines classes of works that should be excluded from the prohibition. This is the safeguard Congress placed in the DMCA in order to ensure fair use protection.13 Originally, “class of works” was defined by 17 U.S.C. § 102, listing a broad group of works that are afforded copyright. This soon changed to a more narrow scope, including subcategories based on the works. In the 2006 decision making process, the Register decided to include works based on uses or users. This allowed the Register to grant exemptions to works in a limited scope as to reason of use. Thus allowing the exemptions to a smaller, tailored class of works, but overall facilitating greater access.14 It is important to understand that this rulemaking process does not affect copyright. The exemptions only pertain to circumvention of DRM, and when a class of works is granted exemption, the user must still adhere to copyright law.
The DMCA also addresses fair use in more general terms by stating that nothing in section 1201 “shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use.”15 However, this only covers copyright infringement and not circumvention. So the question remains as to whether a fair-use defense is reasonable in a circumvention case.
Digital Media
Does fair use go away with digital media? As Congress did its part in trying to ensure fair use protection, the courts are still muddling through the spider web. In U.S. v. Elcom the court stated that “circumventing use restrictions is not unlawful, but in order to protect the rights of copyright owners while maintaining fair use, Congress banned trafficking in devices that are primarily designed for the purpose of circumventing.”16 This does not explicitly give permission to circumvent DRM, and in this context, the court was only referring to use restrictions and not access control. Universal City Studios v. Corley gives a more direct answer to the question of digital media, DRM and fair use. The defense argued that DRM blocked access to the content of DVDs, disallowing fair use of the content. The court’s response was pointed: “We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original,” continuing,
…the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use.17
Before conclusion, the court finishes its discussion on fair use, saying that “fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.”18
Attempted Legislation
Even though the Second Circuit is sure of fair use and digital media pertaining to DRM, Congress is still trying to tame the monster of its creation. In 2002 H.R. 5544, or the Digital Media Consumers’ Rights Act, was introduced to the House. The bill was to the point on circumvention and fair use, and would have amended section 1201 by adding to the end of 17 U.S.C. § 1201 (c),
and it is not a violation of this section to circumvent a technological measure in connection with access to, or the use of a work if such circumvention does not result in an infringement of the copyright in the work.
It shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work.19
By adding this to the other rights not affected clause in the circumvention section, Congress would have effectively created the possibility of a fair-use defense against circumvention violation. Another probable effect would have been firmly placing the legal footing of copyright holders back in litigation against infringement instead of leaving them in prevention of infringement.
When H.R. 5544 was introduced, Representative Boucher stated the reasoning for this bill was to correct mistakes made in the DMCA, reminding that “Congress was warned that overly broad legislation could have potentially harmful effects.”20 He then turned to the “savings clause,”21 stating that
at least some of us understood at the time, and two courts have since confirmed, the fair use defense to copyright infringement actions is not a defense to the independent prohibition on circumvention contained in Chapter 12 of the DMCA. Since Chapter 12 actions are not grounded in copyright law, the so-called “savings clause” preserving fair use defenses to copyright infringement actions is meaningless in the context of actions under the DMCA.22
H.R. 5544 was referred to the House Subcommittee on Courts, the Internet, and Intellectual Property on November 12, 2002 and has not been heard from since.23
The most recent attempted legislation to address fair use and DRM is the Freedom and Innovation Revitalization U.S. Entrepreneurship Act of 2007 or FAIR USE Act of 2007 (H.R. 1201). This act is far less ambitious than H.R. 5544, and attempts to codify the 2006 exemptions to section 1201 (a)(1) made by the Register of Copyrights.24 Representative Boucher is the sponsor for this bill and when introducing this version in the House during the 110th Congress, he states his thoughts on fair use as defense for circumvention:
the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention. I continue to believe that there should be such an exemption in the law, but content owners have expressed concern that enactment of such a provision could lead to widespread redistribution of audiovisual and other works.25
H.R. 1201 was referred to the House Subcommittee on Courts, the Internet, and Intellectual Property on March 19, 2007. There have been no updates and the bill or a similar one was not reintroduced in the 111th Congress, and though this issue seems important to Representative Boucher, his website does not have an update or information of a proposed reintroduction or similar, new legislation.26
  1. U.S. Const. art. I, § 8, cl. 8
  2. 17 U.S.C. § 107 (2006) (see § 106 for information on “exclusive rights in copyrighted works”)
  3. 17 U.S.C. § 107 (2006)
  4. Id.
  5. Id.
  6. Id.
  7. Cong. Rec. 144. H7094 (August 4, 1998) (Rep. Bliley was a member of the House Committee on Commerce – also the Committee’s version of the bill, H.R. 2281, is essentially the one that became the DMCA)
  8. see 17 U.S.C. § 1201 (a)(1)(B-D) for authority and rulemaking process, and 17 U.S.C. § 1201 (a)(1)(A) for anticircumvention clause
  9. Cong. Rec. 144. H7094 (August 4, 1998)
  10. Id.
  11. 71 Fed. Reg. 68472 (November 27, 2006) (codified at 37 C.F.R. pt. 201)
  12. U.S. Congressional Research Service, Library of Congress. The Digital Millennium Copyright Act: Exemptions to the Prohibition on Circumvention (RL33887 February 21, 2007) by Kate M. Manuel and Brian T. Yeh. Text in PDF: Franklin Pierce Law Center Intellectual Property Library, IP Mall Available: Accessed: November 4, 2008.
  13. see Cong. Rec. 144. H7093-95 (August 4, 1998) for reasoning
  14. U.S. Congressional Research Service, Library of Congress. The Digital Millennium Copyright Act: Exemptions to the Prohibition on Circumvention (RL33887 February 21, 2007) by Kate M. Manuel and Brian T. Yeh.
  15. 17 U.S.C. § 1201 (c) (2006)
  16. U.S. v. Elcom, 203 F. Supp. 2d 1111, 1120 (N.D. Cal. 2002)
  17. Universal City Studios v. Corley, 273 F. 3d 429 (2d Cir. 2001)
  18. Id.
  19. Digital Media Consumers’ Rights Act of 2002, H.R. 5544, 107th Cong., 2d Sess. (2002). Text in PDF: U.S. Government Printing Office, GPO Access Available: Accessed: November 16, 2008.
  20. Cong. Rec. 148. E1761 (October 4, 2002)
  21. 17 U.S.C. § 1201 (c)(1) (2006)
  22. Cong. Rec. 148. E1761 (October 4, 2002)
  23. Information via Library of Congress, Thomas website
  24. Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007, H.R. 1201, 110th Cong., 1st Sess. (2007). Text in PDF: U.S. Government Printing Office, GPO Access Available: . Accessed: November 16, 2008. (for information on the Register’s ruling, see 71 Fed. Reg. 68472 (November 27, 2006) (codified at 37 C.F.R. pt. 201))
  25. Cong. Rec. 153. E407 (February 27, 2007)
  26. Congressman Rick Boucher. House of Representatives, Representative’s Official Website. Available: Accessed: December 5, 2008.