As critics of the DMCA lament over purported loss in fair use liberties, especially targeting the 1201(f) reverse engineering exception, others find coherence and purpose behind current and possible interpretations of 1201(f).

In Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience, Columbia Public Law Research Paper No. 05-93 (August 2005), Professor Jane Ginsburg from Columbia examines policy implementations of the WIPO Copyright Treaty (WCT), and compares the international efforts with American experience under the DMCA. The paper leaves questions to be resolved with further developments under the WTC, but finds positive precedence from US enforcement of the DMCA. After citing DMCA benefits to users, authors and commerce for works of authorship, Professor Ginsburg conciliates the intention of 1201(f) fair use exception for reverse engineering with recent US case law. According to Ginsburg, while critics are adamant about losing fair use rights, various court decisions cohere the DMCA with current technological capabilities and the delicate issues around interoperability. Professor Ginsburg summarizes one important case:

In Davidson & Assoc. v. Internet Gateway…It is not entirely clear that the defendant’s use in that case in fact exceeded the scope of the reverse engineering exception… The decision does not demonstrate that the defendant’s analysis was infringing; rather, the results of the analysis may have produced a program too similar to the plaintiff’s… the (reverse engineering) exception would not make very much sense if it did not take into account whether the program that results from accessing and studying the plaintiff’s code is infringing. 20.

The case law developing a fair use exception for reverse engineering… assesses whether the result of the reverse engineering is an independent non infringing program… the court’s decision is generally consistent with the rationale for protecting access controls in the first place… In this case, the Battle.net authentication sequence rendered unauthorized copies of Blizzard relatively useless, because they would not be admitted to the online multiplayer site. Defendant’s bnetd site allowed those copies to be played, thus defeating the purpose of the access control. 21.

… legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the “digital lockup” and other copyright owner abuses that many had feared… brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one. 2.

…a rebalancing of power between copyright owners and users. But we should not immediately assume that any change… is a bad thing… which prior “balance” do we mean?... Taking the last pre-DMCA balance as somehow normatively compelled ignores the reality that copyright “balances” are highly contingent and contextual. The more useful question is… whether the new balance makes sense for authors, owners, and users. 25.

The technological measures that reinforce legal control may enable and encourage authorial entrepreneurship, because authors may be able to rely on these measures to secure the distribution of and payment for their works and new business models may therefore emerge. Shifting control from publisher-trolls to authors… may offer the public an increased quantity and variety of works of authorship... 26.

posted by Noel Le @ 3:28 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA, DRM & Watermarks, etc.

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