Page:Fair Circumvention.djvu/43

 Fair use is a sufficiently settled principle today that it is perhaps easy to forget the doctrine’s origins as a judge-made shield against what the courts, based on considerations of sound policy, perceived to be the over-deterrent effects of the copyright statutes as written. The parallels between the DMCA and the rest of federal copyright law, accordingly, leave ample room for similar doctrinal developments under the DMCA. It would be consistent with the substantial policymaking responsibilities the courts have long exercised under copyright for the courts to identify countervailing policy considerations militating against DMCA liability in proper cases. As the example of the fair use doctrine shows, where such countervailing policy considerations exist, the courts stand on relatively firm historical ground in declining to impose liability even where the defendant’s conduct appears to fall within the literal prohibitions of the statute. It would, accordingly, be broadly consistent with the historical development of federal copyright law and with the courts’ responsibilities as coequal partners in copyright policymaking to develop a set of rules defining circumstances in which the literal terms of the DMCA’s circumvention and trafficking prohibitions will not be given effect—to craft, as I have labeled it herein, a doctrine of fair circumvention.

IV. Towards Fair Circumvention
If the courts are, as the foregoing analysis suggests, free to develop their own exceptions to the DMCA’s liability provisions, how should they do so? The courts’ present approach—announcing essentially ad hoc exceptions based upon dubious assertions about what the statutory text expressly requires—yields perhaps the worst of all possible worlds. By purporting to rest their decisions upon the statutory text alone, the courts seem to eschew broader policy considerations based upon sources that are surely pertinent to a complete understanding of the DMCA (such as the requirements of the relevant 1996 WIPO Treaties or the Clinton Administration’s 1995 White Paper ) but which lie outside the statute itself. And by making overbroad or unjustified statements about what the statutory text alone is perceived to require, the courts undermine the authority of their own positions—future courts may simply examine the statute for themselves and discover that it does not really read as advertised.