Copyright V Class Notes: February 10, 2003 Law 507 | Intellectual Property | Spring 2003 Professor...

Copyright VCopyright V

Class Notes: February 10, Class Notes: February 10, 20032003

Law 507 | Intellectual Property | Spring Law 507 | Intellectual Property | Spring 20032003

Professor WagnerProfessor Wagner

2/10/032/10/03 22Law 507 | Spring 2003Law 507 | Spring 2003

Today’s AgendaToday’s Agenda

1. Fair use: Parody

2. The DMCA


Fair Use: ParodyFair Use: Parody

Campbell v Acuff-RoseCampbell v Acuff-Rose (1994) (1994)• Purpose/nature of use: “transformative”

o Why is transformative use important?

• Nature of the work: “not much help”o Why is the nature of the work unhelpful?

• Amount used: parody will use the work substantially

• Effect on the market: no presumption of market harm for parody

• Is 2 Live Crew’s song really a parody?• What is a satire? Why is it treated differently

than parody? (See, The Cat NOT in the Hat, p. 492)


The DMCAThe DMCA17 U.S.C. § 1201(a) – Prohibitions17 U.S.C. § 1201(a) – Prohibitions

(1)(1) ‘‘Circumvention’ of “a technological measure that Circumvention’ of “a technological measure that effectively controls access to a work protected under this effectively controls access to a work protected under this title”title”

(2)(2) “[M]anufacture, import, offer to the public, provide, or “[M]anufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, otherwise traffic in any technology, product, service, device, component, or part thereof, that-”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;(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.


The DMCAThe DMCA17 U.S.C. § 1201(c-h) – Exceptions17 U.S.C. § 1201(c-h) – Exceptions

(1)(1) ““Nothing in this section shall affect rights, remedies, Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, limitations, or defenses to copyright infringement, including fair use, under this title.”including fair use, under this title.”

(2)(2) Exceptions forExceptions fora) Non-profits, libraries, educational institutions…b) Law Enforcement, Intelligence, and Other

Government Activities…c) Encryption Research…d) Goods/services that protect minors…e) Protection of personally-identifiable-information…f) Security testing…


The DMCAThe DMCA

Universal v RemierdesUniversal v Remierdes (SDNY 2000) (SDNY 2000)• What does the ‘encryption’ on DVDs accomplish?• How was DeCSS created? (What does this

suggest about ‘digital rights management’ (DRM) systems?)

• In what way (ways?) did 2600 ‘traffic’ in circumvention technology?

• Is there a meaningful distinction between:o Posting the downloadable file on your servero Linking to the file, on another’s servero Linking to another’s page, where the file is availableo Providing the URL of pages where the file is availableo Suggesting appropriate search terms to find the file


The DMCAThe DMCA

Universal v RemierdesUniversal v Remierdes (SDNY 2000) (SDNY 2000)• Why does Sony not control this case? (Aren’t

there substantial uses for DeCSS that are not contrary to the anti-circumvention provisions?)o Couldn’t many DeCSS users simply be attempting

to exercise fair use rights? (e.g., Sony)o What does the court say about the status of Sony?

• The Court determines that fair use is not an exception to the DMCA…o As a matter of statutory construction, is this

correct?o If it is correct, why would Congress do this?


The DMCA PolicyThe DMCA Policy

The DMCA introduces a new form of The DMCA introduces a new form of protection to copyright: the right to protection to copyright: the right to prevent prevent circumventioncircumvention of DRMs, rather of DRMs, rather than an underlying shift in rights…than an underlying shift in rights…

Consider the pros and cons of this move…Consider the pros and cons of this move…• Effects on fair use, etc.• Effects on the market for © goods• Effects on incentives to create/distribute ©

goods• Potential dangers



Unintended Consequences(?)Unintended Consequences(?)Which of these concerns is most salient?

oChilling free expressionoRetarding scientific researchoEliminating fair useoReducing competition



Unintended ConsequencesUnintended ConsequencesWhich of these concerns is most salient?

oChilling free expression– Was 2600’s ‘free speech’ chilled in

Remierdes?– Was Slashdot’s speech chilled by

Microsoft?




oChilling free expressionoRetarding scientific research

– What do you make of the fact that the ‘threats’ to research have been shortlived?

– Do you think scientists should stop publishing security research?




oChilling free expressionoRetarding scientific researchoEliminating fair use

– How serious is the threat to fair use?– Do the benefits of the DMCA (or the

harms of no DMCA) outweigh the loss to fair use?




oChilling free expressionoRetarding scientific researchoEliminating fair useoReducing competition

– Do any of these examples “reduce competition”?» Lexmark toner cartridges» Abio voice patterns» ‘mod chips’


DMCA PolicyDMCA Policy

1.1. What are the ‘best’ arguments in favor What are the ‘best’ arguments in favor of the DMCA?of the DMCA?

2.2. Do they overcome the potential Do they overcome the potential downsides?downsides?

3.3. How could the law be improved?How could the law be improved?


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