Vol 7 No 1 - Roger Williams University School of Law

DMCA creates an exclusive right in the person or entity settingthe technological protection measure to control access to copyrightworks. That would allow a person or entity to protect raw data(embodied in a copyright work) by encasing it in a TPM or toprevent fair use of copyright material by encasing it in the TPM—some suggest this is akin to locking a book or a database in a roomor bank vault.294 Reimerdes, while acknowledging somelimitations, intimates that the DMCA does create a right tocontrol access to copyright works and that this does not violate ofthe First Amendment, as this incidental impact on protectedexpression is acceptable in light of the overall objective ofCongress to protect copyright in the digital environment.295 Itmight be suggested that such an approach serves to eliminate fairuse, create rights in unprotected data and portrays overly broadregulation.296 An even more pressing point to appreciate is thatfair use rights to reverse engineer software architecture in thename of interoperability, where that software is a technologicalprotection measure or lock, are severely restricted by the DMCAas interpreted in this case.One further point arising in the case and throwing light onthe meaning of the DMCA must be noted. In the process ofarguing fair use, the defendants raised the Sony defence. Thejudge responded:Defendants claim also that the possibility that DeCSSmight be used for the purpose of gaining access tocopyrighted works in order to make fair use of thoseworks saves them under Sony Corp. v. Universal CityStudios, Inc. But they are mistaken. Sony does not applyto the activities with which defendants here are charged.Even if it did, it would not govern here. Sony involved aconstruction of the Copyright Act that has been overruled294. See Pamela Samuelson, Intellectual Property and the Digital Economy: Whythe Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech. L.J. 519,538-43 (1999).295. See Reimerdes, 111 F. Supp. 2d at 322-23, 330; see also Council Directive01/29/EC of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright andRelated Rights in the Information Society, 2001 O.J. (L 167) 10, art. 6(1) (prohibitingactual circumvention); cf. Copyright Amendment (Digital Agenda) Act, 2000, (Austl.)(failing to expressly prohibit actual circumvention).296. In considering whether such legislation should be allowed to protect noncopyrightdata see Benkler, supra note 10; Patry, supra note 128; Reichman &Samuelson, supra note 22.