Falling On Deaf Ears: Is the "Fail-Safe" Triennial Exemption Provision in the Digital Millennium Copyright Act Effective in Protecting Fair Use?

Authors

Woodrow Neal Hartzog, Burr & Forman LLPFollow

Abstract

This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anti-circumvention provisions by protecting the ability of the public to engage in non-infringing uses of copyrighted works.

Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rule-making provision to meaningfully counteract the adverse effects of the anti-circumvention provisions of the DMCA. Specifically, the rule-making procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of fair use principles - one of the very doctrines the exemption provision was designed to protect.

Recommended Citation

Woodrow N. Hartzog, Falling On Deaf Ears: Is the "Fail-Safe" Triennial Exemption Provision in the Digital Millennium Copyright Act Effective in Protecting Fair Use?, 12 J. Intell. Prop. L. 309 (2005).
Available at: https://digitalcommons.law.uga.edu/jipl/vol12/iss2/1