The DRM Dilemma: Re-Aligning Rights Under the Digital Millennium Copyright Act

Abstract

The Digital Millennium Copyright Act (DMCA), has raised the spectre of neutralizing copyright law's fair use doctrine. By restricting the availability of technological devices that can be used to access and copy digitally encrypted works, the DMCA effectively removes the ability of potential fair users to access and use those works. The legislation has the laudable aim of preventing digital copyright piracy. However, as recent judicial interpretations evidence, fair use seems to be an unintended casualty in the battle between content industries and digital copyright pirates. The dilemma is that it is very difficult for Congress to effectively regulate technologies that can be used either for digital copyright piracy or for fair use purposes. A blanket ban on the technologies adversely affects fair use whereas a more lenient approach advantages copyright pirates. This article advocates resolving the dilemma through a new approach that takes fair use outside the scope of the DMCA. The idea is to create a new administrative complaints mechanism, outside the judicial system and the current triennial review of the DMCA by the Librarian of Congress. This new mechanism would support individual fair users in attempts to access or copy encrypted works. This approach is better tailored to individual fair users than the current system. It also has the advantage of potentially generating a significant amount of useful data about emerging social norms relating to the boundaries of the fair use doctrine that could be fed back into legislative and judicial processes as copyright law develops in the new millennium.