Thought Papers/Kevin Hickey Thought Paper 2

Apprehension and Intent: Construing “Access” to Preserve Fair Use

In class, I found myself doubting whether the DMCA’s § 1201 significantly impairs fair use. Facially, it appeared¹ to me that the statute struck a reasonable balance by distinguishing between access and rights restrictions, with the act of circumventing the latter remaining legal. Fair use has never given anyone a right to obtain a work. I may not, for example, steal a book from a bookstore in order to excerpt quotes for educational purposes. In other words, fair use rights are premised on the notion that the fair user has perceived a work’s contents in some lawful way. This does not mean that a fair user must be an owner of the copyrighted work. One might make a parody of a television broadcast, for example, without buying a copy. I conceive of the line fair use draws as based on apprehension. Before a work is perceived, the author may employ any Hobbesian means he likes to restrict access (e.g., keeping manuscripts in a safe). But once the author has allowed his creation to be apprehended by another, he cannot restrict fair uses of lawfully-acquired knowledge.

If the differential treatment of access controls and rights controls is meant to preserve fair use, I fail to see why CSS is an access control.² If the owner of a DVD is free to watch the audiovisual work, how does she not therefore have “access”? CSS is less like a safe in which a manuscript is kept, and more like a book printed on copy-protected paper (like official transcripts). You can read the book—as you can watch the CSS-protected movie—but you can’t make a good copy without some trickery. On this apprehension-based understanding of “access,” CSS does not control access because it allows the work to be viewed.

There is one way in which CSS restrains access to a work: it keeps the DVD’s copyrighted code hidden from the user. This code is a literary work, not an audiovisual one. With regard to the code, CSS is indeed a true access restriction, as a user cannot see the code without circumvention. However, I would argue that whether a restriction is conceived as an access or use control ought to depend on the intended target of the circumventer. A user who employs DeCSS to parody a DVD seeks to make fair use of an audiovisual work, not code. As she is allowed to apprehend the audiovisual work, only a use restriction is circumvented. If the circumventer wishes instead to examine the DVD’s code, she circumvents an access restriction by using DeCSS. This interpretation of “access” seems reasonable in light of § 1201’s expressed intent not to affect fair use rights.³

Notes

¹ I use the past tense since courts have not followed the reasoning I present here. See Universal Studios v. Reimerdes, 111 F.Supp.2d 294, 317–18 (S.D.N.Y. 2000).

² The statute’s definition of “gaining access” is essentially circular on the meaning of “access.” See 17 U.S.C. 1201(a)(3)(B).

³ 17 U.S.C. 1201(c)(4).