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

42 Pages Posted: 21 Sep 2009 Last revised: 12 Aug 2017

Woodrow Hartzog

Northeastern University School of Law and College of Computer and Information Science; Stanford Law School Center for Internet and Society

Date Written: Spring 2005

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.

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

Suggested Citation

Hartzog, Woodrow, Falling on Deaf Ears: Is the 'Fail-Safe' Triennial Exemption Provision in the Digital Millennium Copyright Act Effective in Protecting Fair Use? (Spring 2005). 12 Journal of Intellectual Property Law 309 (2005). Available at SSRN: https://ssrn.com/abstract=1473611

Woodrow Hartzog (Contact Author)

Northeastern University School of Law and College of Computer and Information Science ( email )

416 Huntington Avenue
Boston, MA 02115
United States

HOME PAGE: http://https://www.northeastern.edu/law/faculty/directory/hartzog.html

Stanford Law School Center for Internet and Society ( email )

Palo Alto, CA
United States

HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

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