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 whether the mechanism “controls” access to the work? Or to whether what is controlled amounts to “access” rather than something else? It is no easy task to shoehorn this definition into the statutory phrase meant to embody it. Small wonder that the courts find the statute confusing.

There is, in short, no reason to think that the DMCA is less amenable to the methods of judicial policymaking that have guided the development of the rest of copyright law. To the contrary, the DMCA suffers from some of the same sorts of infirmities that have confirmed the need for an independent judicial role.

C. Fair Use and Interbranch Partnership
There is precedent for the courts exercising their substantial policymaking powers in the domain of copyright to craft judge-made exceptions to liability based on public policy considerations even where the literal text of the statute seems to require a finding of infringement. Two features of copyright law in particular support an ongoing judicial role in recognizing exceptions to liability. First, copyright infringement is a strict liability offense; there is no requirement in the statute that the infringer have acted willfully or knowingly, or even consciously. Even so-called “innocent infringers” fall within the statute’s liability provisions, although they may be liable for reduced statutory damages. Second, the statute provides severe penalties for copyright infringement. A copyright plaintiff who cannot prove a penny of actual injury may nevertheless receive statutory damage awards that loom extraordinarily large in many cases: $750 to $30,000 per work infringed, increased to up to $150,000 per work if the infringement was willful. Many courts