What is the effect of the anti-circumvention provisions on the traditional defenses to copyright law?
Section 1201(c)(1) explicitly provides that: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use.” Substantial question remains over whether or not courts will interpret the traditional defenses to copyright infringement as defenses to the anti-circumvention provisions as well. Recent court decisions have not found the fair use defense to apply to violations of the anti-circumvention provisions of the DMCA. By making the circumvention prohibitions distinct from copyright infringement, defendants can be held liable for circumventing an access control measure even if the uses made of the work are held not to infringe on the rights of the copyright owner. Disengaging the anti-circumvention provisions from the traditional fair use analysis effectively limits use of copyrighted materials to solely what is explicitly permitted by the copyright owner. The concept of fair use remains, but for all practical purposes only
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