Brooklyn Law Review, Vol. 74, No. 1, pp. 1-50, 2008
This paper looks at how courts have interpreted copyright cases to support competition and technology.
Technologies that allow copyrighted works to be accessed for “fair use” should be legal.
The Digital Millennium Copyright Act (DMCA) was intended to help reduce the spread of technology that could be used to make tools used to infringe copyright.
Some court cases interpret the DMCA broadly, emphasizing the need to prevent possible copyright infringement and limit the public availability of tools that may be used to infringe.
Some conflicting cases interpret the law narrowly, stressing the importance of allowing technology to be developed that supports more competition.
These seemingly incompatible cases be reconciled by recognizing an emerging “fair circumvention” doctrine of judge-made exceptions to the DMCA.
These cases should be extended to allow consumers to use technology to “unlock” copyrighted works for “fair use. “