Can the Fair Use of Digital Works be Automated: Digital Rights Management and the Proposed Digital Choice and Freedom Act

G.M. Secor (USA)


Digital Millennium Copyright Act; Digital Choice and Freedom Act of 2002; Digital Rights ManagementSystems; Fair Use; Anti-circumvention; Rights Specification Language.


The Digital Millennium Copyright Act (DMCA) has been the subject of intense debate since its passage in 1998. In particular, the “anti-circumvention” provisions of the DMCA, which make it illegal in all but a few circumstances to defeat copyright protection and access control technologies, have been hugely controversial. Proponents of the anti-circumvention rules contend that the effective application of copyright protection technology is essential to the development and distribution of digital information. Opponents counter that the anti-circumvention rules serve to shift the traditional balance between copyright owner and copyright user, placing too much control over information access and usage in the hands of the copyright owner. On October 2, 2002, the Digital Choice and Freedom Act of 2002 (DCFA) was filed in Congress. The DCFA addresses many of the concerns of DMCA critics by seeking to ensure that fair use is preserved for digital works. This paper will summarize the anti circumvention rules of the DMCA and then analyze the proposed response contained in the provisions of the DCFA. Significant attention will be paid feasibility and advisability of the DCFA approach in the context of the opportunities and limitations presented by digital rights management systems (DRMS).

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