Pamela Samuelson walks her audience through dense and murky regulations and case law surrounding digital rights management, glimpsing a somewhat brighter way ahead for advocates of fair use.

As Samuelson recounts, representatives of the music, film, and publishing industries successfully pressed politicians in the mid-1990s for legislation to outlaw new technologies that could circumvent technical protection measures (TPMs) that these industries sought to safeguard their copyrighted material. The resulting laws have stirred up controversy and resentment among many factions, from music fans to academics. But according to Samuelson, digital information copyright owners have been, and should continue to be, challenged.

Samuelson contends that the regulations’ structure is full of holes intentionally left by lawmakers. Industries’ starting contention was that “you don’t have a right to make a fair use of something you don’t have lawful access to.” So they outlawed the tools for circumventing technical protections. But while breaking a DVD’s code is a violation of the law, Samuelson believes “you have lawful access to a DVD you bought, and you ought to be able to bypass it to make fair use.” So it should be OK to bypass TPMs to gain fair use, she says, and that’s what the debate is about.

Through recent court cases, fair use claims are nibbling away at prohibited circumventions. And a group led by Samuelson has come up with a remedy she calls “reverse notice and take down.” Through this, someone seeking fair use gives notice to a copyright holder that uses a TPM, and asks to make fair use of desired material. The copyright holder then has an obligation to either take down the TPM or explain why not. If the owner doesn’t respond at all, “the fair user can go ahead and hack as they want.” If the copyright owner objects, the fair user can seek declaratory judgment to enable fair use.

This puts a burden on the prospective fair user, acknowledges Samuelson, but over time, case by case adjudication “could establish principles to establish balance in anticircumvention rules.”

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