Adrift in the Digital Millennium Copyright Act: The Sequel

Abstract

Among the many concerns expressed about the potential negative impacts of the Digital Millennium Copyright Act on the copyright system was that access controls to digitally encoded works would hamper fair use. For that reason, a so-called "fail-safe" provision was added to the statute that would have permitted the Copyright Office to engage in selective waiver of the restrictions on circumventing technological protections where necessary to prevent a diminution in the availability of certain classes of works to users. As the first rulemaking has demonstrated, any hope that Congress had provided a workable remedy for any negative effects caused by the access controls is illusory. The article analyzes the statutory provision, the first attempts at rulemaking and suggests an alternative way to approach crafting an accommodation between the legitimate and conflicting needs of copyright owners and users.