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Chapter 5 Copyright Infringement and Remedies

§ 504. Remedies for infringement: Damages and profits
(a) In General. - Except as otherwise provided by this title, an infringer of copyright is liable for either -
(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).


§ 506. Criminal offenses
(a) Criminal Infringement. - Any person who infringes a copyright willfully either -
(1) for purposes of commercial advantage or private financial gain,or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

Chapter 10 Digital Audio Recording Devices and Media

§ 1008. Prohibition on certain infringement actions
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Chapter 12 Copyright Protection and Management Systems

§ 1201. Circumvention of copyright protection systems2
(a) Violations Regarding Circumvention of Technological Measures. - (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
(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.

§ 1204. Criminal offenses and penalties
(a) In General. - Any person who violates section 1201 or 1202 willfully and for

purposes of commercial advantage or private financial gain

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One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of ?fair use.? Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered ?fair,? such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work;

and the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between ?fair use? and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

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The Digital Millennium Copyright Act clearly violates the fair use principle for all copyrighted works in digital form. The Digital Millennium Copyright Act makes no provision for fair use when prohibiting circumvention of copyright protection systems and hence clearly obstructs fair use of any copyrighted work. Users of every class of works are likely to be ?adversely affected by virtue of such prohibition in their ability to make non-infringing uses? of those works.
The fair use principle has a long and respected history, and its advantages have been firmly established. When I obtain a copy of a copyrighted work, I have the right not only to view and enjoy the copyrighted work, but also to make copies for ?criticism, comment, news reporting, teaching, scholarship, or research,? among other purposes.
It often takes a panel of judges, two teams of lawyers, and several months, if not years, to determine fair use; a simple ?technological measure? cannot possibly be expected to determine fair use. Since non-infringing copy protection cannot distinguish between copying for fair use and copying for unfair use, non-infringing copy protection effectively stops all copying of works, even copying for fair use. For instance, the Macrovision copy protection technology unconditionally stops DVD-to-VCR copies, regardless of whether they qualify as fair use; no consideration is even given to fair use. Nearly every other copy protection scheme on the market today and in the foreseeable future makes the same error, stopping copying of works under any circumstances, even those of fair use.

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III. THE COPYRIGHT ACT FORECLOSES JUDICIAL ABROGATION OF THE BETAMAX DOCTRINE.
A. Copyright Is a Carefully Balanced, Statutory Right Intended To Serve the Public Interest that Should Not Be Judicially Expanded.

From the very first, this Court has consistently held that a copyright is solely a creature of statute, not the common law or any theory of natural or moral right, and that the scope of the right is strictly limited by the statutory grant.

(holding that the right ?does not exist at common law?it originated, if at all, under the acts of congress?

The Copyright Act expressly defines an ?infringer? of copyright as one ?who violates any of the exclusive rights of the copyright owner.?


{17 U.S.C. § 501(a). The exclusive rights are defined as the rights ?to do or to authorize? six specific activities with respect to a copyrighted work,

the most relevant here being reproduction and distribution to the public.

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