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 courts; to the contrary, it has repeatedly blessed judicial exercises of independent policymaking in matters of copyright. Copyright treatises, too, recognize the historical and ongoing policymaking responsibilities of the courts.

This history puts one obvious objection to the creation of a judge-made fair circumvention doctrine in a rather different light. In substance, the objection would be that to recognize a new judge-made doctrine of fair circumvention would be an affront to Congress’s lawmaking role. Congress having spoken, the argument would run, the courts’ obligation as “faithful agents” of the legislature is to apply the enacted text as written, and to leave to Congress the task of crafting exceptions from whatever liability rules it chose to adopt. The fact that Congress expressly established certain limitations upon the liability rules adopted in the DMCA, this line of reasoning would continue, only strengthens the presumption against the recognition of additional unstated exceptions by judicial fiat.

To be sure, the courts can and do rely on the enacted statutory text as the primary and best indication of legislative intent, although the command to apply the enacted text as written is not inexorable. Nevertheless, whatever the overall merits of the interpretive theory that courts must act only as “faithful agents,” applying the statutory text precisely as written by Congress without interjecting their own