The Digital Millennium Copyright Act (DMCA) was enacted in 1998 in an attempt to curb the piracy of copyrighted works in the new digital age.  The most important provision, commonly referred to as the anti-circumvention provision,  makes it illegal to circumvent a technological measure that controls access to a copyrighted work or to distribute tools for others to do so. This means it is illegal to bypass DRM or other security measures. On its face this sounds very reasonable. However, this provision has had what were, hopefully, unintended consequences on fair use.

Brief Background on Fair Use:

Fair Use is an affirmative defense in cases of copyright infringement. When determining fair use four factors are taken into account:

1. The purpose or character of the use (including whether it is for commercial or nonprofit uses);
2. The nature of the copyrighted work;
3. The portion of the copyrighted work that was used in relation to the size of the copyrighted work, and;
4. The effect of the use on the potential market for or value of the copyrighted work.

The DMCA attempts to maintain the fair use defense in copyright infringement cases, but the defense appears to be useless when the anti-circumvention provision is taken into account. The anti-circumvention provision makes it possible to use a copyrighted work in a way that would be protected by fair use, but still be subject to a lawsuit. For example, say an aspiring movie critic runs a small internet blog. He has purchased the dvds of several movies he wishes to review. After he writes his article he wants to place a 30 second clip of the movie with the review. To do this he decrypts the dvd and places the data on his computer. He then trims down the film to the 30 second clip he wishes to use and places the article and clip on the internet. Nothing in that scenario sounds like a crime, and in fact, his use of the movie is likely protected by fair use. However, he still can be subject to a lawsuit for ripping the data from the dvd he purchased. The fact that he could be subject to a lawsuit for using a work legally certainly doesn’t sound like fair use.

With the technology available today to copyright holders, it is possible to eliminate the public’s rights to fair use simply by placing any barrier to access on the copyrighted work. The inability to exercise the right to fair use can have serious implications on teaching, research, news reporting, and even things as small as writing commentary on a copyrighted work. The DMCA as it stands right now is unworkable in the current technological environment and needs to be reformed before fair use becomes a thing of the past.

For additional information about the DMCA and its effects, please contact Nathan Blasé, Licensing Intern in the Office for Research Partnerships and Commercialization, at Nathaniel.Blase@unh.edu.