Solving the Digital Piracy Puzzle: Disaggregating Fair Use from the DMCA\u27s Anti-Device Provisions

Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another copyright law \u27balancing act\u27 involving the regulation of anti-circumvention devices under the Digital Millennium Copyright Act (\u27DMCA\u27). The DMCA aims to prevent digital copyright piracy while at the same time facilitating certain legitimate interests in copyright works. Recent judicial interpretations suggest that these legitimate interests are not well supported under the current legislation. This article advocates developing a better balance by disaggregating questions relating to the protection of legitimate uses of copyright works from the larger battle involving the appropriate regulation of circumvention technologies. The idea is to take certain socially beneficial uses of copyright works outside the scope of the DMCA\u27s anti-circumvention provisions, and to create a new administrative mechanism that would facilitate those uses by imposing affirmative legal obligations on copyright holders. The system suggested here would also generate useful data about emerging social norms relating to fair use of copyright works in the digital age