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 rights holders with an additional cause of action that they may elect to pursue instead of, or in addition to, the ordinary remedies for copyright infringement.

In a number of recent cases, however, courts have permitted defendants to circumvent DRM measures or to traffic in circumvention devices, finding no violation of the DMCA. The courts in these cases offered a number of reasons for rejecting the plaintiffs’ claims, including (1) that the technological subject matter of the parties’ dispute was not within the scope of the DMCA; (2) that plaintiffs were attempting to apply the DMCA in circumstances not contemplated by Congress at the time it passed the statute; (3) that the plaintiffs were abusing the DMCA as a means of gaining improper advantage over a competitor in the marketplace; and (4) that the plaintiffs should be required to demonstrate an underlying act of copyright infringement by the defendant as a necessary element of any DMCA claim. The first two of these arguments rest on inferences and suppositions about legislative intent in the face of minimally illuminating statutory text. The latter two are essentially policy arguments that, whatever their persuasive appeal, are even less readily grounded in the language of the DMCA as passed.

These recent decisions gain persuasive force, however, if contextualized within the long history of judge-made exceptions to the general provisions of federal copyright law. The common-law doctrine of fair use, for example, began—and, even after receiving express statutory recognition in the Copyright Act of 1976, continues to evolve—as a judge-made exception to the statutory exclusive rights of copyright holders. So viewed, recent decisions may be creating what amounts to a judge-made exception to the liability rules of the DMCA—what is in