Fair use, the First Amendment, and the Digital Millennium Copyright Act (DMCA): A case for heightened judicial scrutiny?

摘要

This study critically examines section 1201 of the new addition to the United States copyright law called the Digital Millennium Copyright Act (DMCA). The specific focus on is on how this section impacts customary non-infringing uses of copyrighted material allowed by previously existing law.; Of particular interest to this study is section 1201 of the DMCA, which bans the circumvention of technological measures put in place by content creators to protect their work, and also bans the trafficking in devices of circumvention. At first blush, this section of the DMCA seems like an effective measure to prevent piracy. The problem is that such bans go too far by not making adequate provisions for the continuing existence of fair use in the digital age. The goal of this study find a way of balancing all the interests involved in digital copyright regulation such that the information industry would be equipped with the tools necessary to protect the industry and the general public would still have traditional fair access and use of digital information.; Using interest group theory, this study suggests heightened judicial scrutiny of cases arising from section 1201 of the DMCA as a way of maintaining the balance of interests in copyright law. Heightened judicial scrutiny provides an impartial overview of the DMCA in non-infringing situations to benefit the public domain and still provide incentive to create to the information industry by providing adequate legal protection for digital information.