Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, August 8, 2006

More on Access and Anti-Circumvention

Zohar Efroni, the Max Planck Institute for Intellectual Property, has published "Towards a Doctrine of "Fair Access" in Copyright: The Federal Circuit's Accord" in IDEA: The Intellectual Property Law Review. Here is the abstract.

This Article argues that the Federal Circuit in Chamberlain and Storage Tech is developing a parallel common law doctrine of fair access. As applied, this doctrine manifests the court's approach as to the appropriate balance between the interests of copyright owners and information users in the context of access to copyrighted works. It is parallel to the statutory approach due to its deviation from Congress's policy as reflected in the DMCA.

Applying the Hohfeldian model of fundamental jural relations to the anti-circumvention norms, the Article criticizes Chamberlain's theory, which argues that the anti-circumvention law did not establish a new property right allowing owners to prohibit access to their digital works.

In connection to a possible interpretation of the fair access doctrine that would allow fair use (and other copyright defenses) as a valid protection against anti-circumvention and anti-trafficking claims, it shall be argued that the Federal Circuit's decisions have paved the way not only for the incorporation of traditional copyright infringement defenses into the anti-circumvention law, but also provided solid arguments to defendants in cases where such defenses, and particularly statutory fair use, are inapplicable.

The court's analysis effectively opens up the door to an alternative judicial approach of anti-circumvention construction - the fair access doctrine. In light of the legislature's bewilderedness as to if and how to modify the flawed access control provisions of the DMCA, Its development in the course of future disputes could furnish an effective shield for defendants in circumstances of unjustified application of the anticircumvention rules.

Download the entire article from SSRN here.

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