Falling on Deaf Ears: Is the 'Fail-Safe' Triennial Exemption Provision in the Digital Millennium Copyright Act Effective in Protecting Fair Use?

Abstract:     
This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anticircumvention provisions by protecting the ability of the public to engage in noninfringing uses of copyrighted works.

Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rulemaking provision to meaningfully counteract the adverse effects of the anticircumvention provisions of the DMCA. Specifically, the rulemaking procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of fair use principles - one of the very doctrines the exemption provision was designed to protect.

Number of Pages in PDF File: 42

Keywords: copyright, drm, dmca, fair use, anticircumvention, triennial rulemaking

Accepted Paper Series