Page:Fair Circumvention.djvu/12

 creation of the circumvention tool at issue: DeCSS circumvented what was “effectively” an access control mechanism because the copyright holder had provided an avenue for authorized decryption of the protected content (to wit, purchase of a license from the DVDCCA) with which the designers of DeCSS had failed to comply. Because there was no “authority of the copyright owner” for the creation of such a tool, the court reasoned, the dissemination of DeCSS by the defendants necessarily violated the DMCA.

The court rejected the defendants’ argument that circumvention of a technological measure for the purpose of making a fair use of the underlying copyrighted work would be permissible under the DMCA. The court’s reasoning began with the truism that copyright infringement and violations of the anti-circumvention provisions of the DMCA are distinct offenses. A defense to the former, accordingly, was not automatically a defense to the latter. The statutory text, however, was silent on the question whether fair use could be raised as a defense to a claim under the DMCA. The court construed this silence as an implicit legislative rejection of the fair use defense, reasoning that “[i]f Congress had meant the fair use defense to apply to such [DMCA] actions, it would have said so.” Rather than “saying so,” however, Congress gave indications that the court found adequate to conclude that fair use of the underlying copyrighted work could not immunize a party from liability for circumventing an access control mechanism. The court pointed, first, to the fact that authorization by the copyright holder was a complete defense to a DMCA violation; second, to the fact that Congress delayed the statute’s effective date; and third, to the enumeration of some exceptions to liability in the DMCA itself. The court found the DMCA “crystal clear” in providing no fair use defense to a trafficking claim and refused any suggestion that it should construe the statute in favor of such an exception. “In such circumstances,” the court concluded, “courts