Fair Use and the "Digital Millennium Copyright Act" (DMCA)

The Digital Millennium Copyright Act is intended to enhance copyright protection to emerging new media.  Some question whether 'fair use' applies under its provisions.

The text of the copyright code as amended by the Digital Millennium Copyright Act is clear on this:

1201(c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

Thus, the right of fair use of materials is not reduced by the act.

Fair use in the United States is a concept that developed through 'trial and error' in the court systems and only relatively recently (1976) was incorporated into the code.

 The historical and revision notes for section 107, Fair Use, says

(Section 107) endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

In an internet search using "DMCA" and "fair use" as the search criteria, I found the following:

Based upon our initial review of the Digital Millennium Copyright Act ("DMCA"), we do not believe  that the act affects the guide's fair use analysis. - Regents Guide to Understanding Copyright  and Educational Fair Use, University System of Georgia

In the final version of the DMCA…(Congress) provides a mechanism to assure the continued vitality of the fair use privilege enjoyed by teachers, students, library patrons and all other information users. These provisions represent a dramatic departure from earlier drafts of the legislation. Copyright Implementation Manual - Copyright Resources on the Internet -  December 1999 Revision, Groton Public Schools, Mystic CT

The anti-circumvention provisions of the DMCA must be viewed in context. The DMCA explicitly states that it shall not affect "rights . . . or defenses, including fair use" which exist under copyright law. MP3.com, Inc