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A RIFF on FAIR USE in the DIGITAL MILLENNIUM COPYRIGHT ACT T DAVID NIMMER

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University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 148 JANUARY2000 NO. 3 ARTICLES A RIFF ON FAIR USE IN THE DIGITAL MILLENNIUM COPYRIGHT ACT t DAVID NIMMER INTRODUCTION ..................................................................................... 674 I. THE RIF ............................................................................................. 675 II. THE DIGITAL MILLENNIUM COPYRIGHT ACT ................................... 680 A. Background-Regulationof Devices and Services........................... 681 B. Section 1201's Anti-CircumventionBans ...................................... 684 1. Breaking and Entering ........................................................ 685 2. Disorderly Conduct. ............................................................. 688 3. Distinctions Between Those Schemes ................................. 689 t © 2000 by David Nimmer, Of Counsel, Irell & Manella, Los Angeles, California. This Article was initially presented as a paper to the Haifa Conference on the Com- modification of Information on May 30, 1999. It is warmly dedicated to all my friends at Frimer & Gellman, at whose Jerusalem offices it was largely composed during what was supposed to be my sabbatical year-naturally, the very time that Congress chose to enact the Digital Millennium Copyright Act. (673) 674 UNIVERSITY OFPENNSYLVANIA LAWREVEW [Vol. 148:673 C. Statutory Exemptions in Section 1201 ....................................... 692 1. General Exemptions ............................................................ 692 2. User Exemption .................................................................. 692 a. Theory ........................................................................ 693 b. Application ....................................................................... 694 c. Effective Date............................................................... 699 D. SeparateApplication of Each Exemption to Each Ban .................... 700 1. Brief Enumeration .............................................................. 700 2. Obligation to Discriminate ................................................. 701 III. FAIR USE ......................................................................................... 702 A. GeneralSolicitude for User Rights ................................................ 702 B. PracticalImplementations in the DigitalMillennium Copyright Act Outside Section 1201 ............................................................. 704 1. Ephemeral Recordings ........................................................ 705 2. Boat Hulls ............................................................................ 707 C. Reacting to a "Pay-Per-Use"World .............................................. 710 1. Background ......................................................................... 710 2. Formulation by Congress .................................................... 716 a. HouseJudiciary Committee................................................. 716 b. House Commerce Committee ............................................... 717 c. DissentingViewpoint .......................................................... 720 3. Adoption into Law ............................................................... 722 a. Explicit Effect on FairUse .................................................. 722 b. Dissenters'Reconciliation................................................... 723 4. Analysis ................................................................................. 726 a. Case Studies ...................................................................... 727 b. Two-YearDelay ................................................................. 732 c. Statutory Exceptionfor Users.............................................. 734 WRAP-UP ................................................................................................ 739 INTRODUCMON In late 1998, the United States Congress enacted its most sweeping revisions ever to the Copyright Act of 1976.1 Under the title Digital Millennium Copyright Act,2 this amendment institutes radical I See David Nimmer, Puzzles of the Digital Millennium Copyright Act, 46J. COPYRIGHT Soc'yU.S. 401, 402 (1999) (describing the October 28, 1998 amendment as the most significant of the 32 amendments to the Copyright Act of 1976). Pub. L. No. 105-304, 112 Stat. 2860, § 1 (short title). 20001 DIGITAL MILLENNIUM COPYRIGHT ACT changes, from protecting boat hulls with sui generisefrghts, to permit- ting maintenance of computer systems without the consent of copy- right owners whose software may, by chance, be copied in the proc- 5 ess,4 to mandating respect for copyright management information. The most important feature of the Digital Millennium Copyright Act institutes anti-circumvention provisions into U.S. copyright law. The details of the resulting section 1201, added to the Copyright Act, are fiendishly complicated. Even without canvassing all of the nu- ances, however, a philosophical issue emerges-how does this amendment affect one of the cynosures of copyright law, its fair use doctrine? A full answer would require complete explication of both the Digital Millennium Copyright Act and of the fair use doctrine of U.S. copyright law.6 Even without such an ambitious program, some tentative steps into the terrain reveal interesting conclusions about the thrust of this massive amendment. I. THE RIF As we confront questions in the waning days of the millennium regarding the public policy of access and copying, it is instructive to examine how these issues were treated at the beginning of the millen- nium.7 Rabbi Isaac Al-fasi, known as the Rif,8 lived in North Africa in the eleventh century.9 At around the same time that William, Duke of 3 See infraPart III.B.2 (describing how the Act confers protection on the design of vessel hulls). 4 See 2 MELVn.LE B. NIMMER & DAvID NIMMER, NIMMER ON COPYRIGHT § 8.08[D] (release 50 1999) (permitting the copying of software for the sole purpose of maintenance and repair as long as the copy is used for no independent purpose and is destroyed immediately thereafter) [hereinafterNIMMER]. 5 See 17 U.S.C. § 1202 (Supp. IV 1998) ("Integrity of copyright management in- formation"). This issue, in addition to the anti-circumvention features discussed in thispaper, is addressed in 3 NIMMER, supra note 4, ch. 12A. 7 See 3 NIMMER, supra note 4, § 12A.02 (examining the impact of the Act). For an attempt to go even further back, see David Nimmer, Adams and Bits: Of Jewish Kings and Copyrights, 71 S. CAL L. REV. 219 (1998), which examines copyright issues through an analysis of Biblical and Talmudic texts. 8 Perhaps a more exact English transliteration would be as follows: Ri"f. The three letters represent the initials for Rabbi Issac al Fasi (given that "al" is Arabic for "the," it drops out of the equation). The quotation mark in the middle signals to the Hebrew reader that the intent is to convey rashei-teivot [an acronym] rather than a real word. In English, such words as "NATO" are printed in capital letters (which Hebrew lacks) to make the same point. 9 Born in Algeria, his surname derived from his transplanted homeland in Fez, Morocco [A-fasi = The Fezzite]. See2 ENCYCLOPEDIAJUDAICA 600, 601 (1973) (provid- ing a biography and explaining the derivation of his name). In 1088, he was forced to 676 UNIVERSITY OFPENNSYLVANIA LAWREVEW [Vol. 148:673 Normandy, made headlines with his daring cross channel exploits,'0 the Rif occupied himself with a protocopyright question:" Q. A student took books of sacred commentaries from a colleague. When asked to return them, he took a strict vow not to return them until such time as he could copy them. One rabbi permits this type of taking. A. Both that rabbi and the student who took the books erred and did not act according to law. The rabbi who permitted the taking reasoned that this type of behavior is permitted, for it seemed to him that the stu- dent wanted to learn matters of Torah from the books, which qualifies as a mitzva [commanded, meritorious deed]. But he erred, for it is also written that "[a] stolen lulav [palm frond] is pasul [ritually unfit] ." 2j The Omnipresent detests a mitzva that emanates from sin, as it is written, "God loves righteousness, and hates thievery in its iniquity." To unpack the reasoning of the responsum," the Rif calls attention to the fact that one who wants to wave a lulav on the holiday of Sukkot is also behaving meritoriously to fulfill a mitzva. 4 That fact, however, does not give him the right to steal. Indeed, if he does steal someone else's lulav and proceeds to wave it, the stolen character of the lulav nullifies the mitzva. Precisely such nullification is the meaning, within the Jewish legal system, of something being pasul In like measure, the meritorious intent of studying Torah cannot justify stealing someone else's book containing words of Torah because the very act of theft nullifies the otherwise meritorious character of the studying.1 In this responsum, we see two points of view expressed. The Rif himself accords primacy to property ownership-he rules that the owner of the book enjoys untrammeled rights in it and is unimpressed with contrary arguments founded on public policy.1 6 On the other hand, he acknowledges that his is not the only view. By expressing flee to Spain, at age 75. See id. (explaining that he was denounced by enemies). 10See, e.g., The Bayeux Tapestry, available at <http://batte1066.com/baypart2. html/>
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