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Appeals Court Rejects DMCA Constitutional Challenge, Because Apparently Fair Use Means Nothing Good Will Ever Be Published
What began as an attempt to challenge the constitutionality of the DMCA’s terrible anticircumvention provision has now backfired. A court ruling will limit our rights to fair use and free exp…
A big part of the argument was that even though the government has its ridiculous triennial review process, in which the Librarian of Congress gets to designate specific uses that are exempt from 1201, there is no fair use defense for 1201 violations. That said, to avoid impeding robust expression, courts have long recognized a common-law doctrine of “fair use” that implies an “author’s consent to a reasonable use of his copyrighted works” by other speakers Indeed, the Supreme Court has described reliance on a “potential fair use defense” as a “roll [of] the dice,” subjecting the user of copyrighted material to a “notoriously fact sensitive” analysis that typically cannot be resolved “without a trial.” Georgia v. Public.Resource.Or g, Inc., 590 U.S. 255, 275 (2020).
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