This article explains the evolution of the fair use doctrine, which historically prevented copyright holders from having too much control over their works by allowing certain legal and non-infringing fair uses of protected works. Part II explains how the United States Supreme Court developed the Betamax standard to apply the doctrine of fair use to a new technology: home video recorders. Part II also addresses how fair use and the Betamax standard might apply to digital technologies. Part III explains how the DMCA effectively abolished the defense of fair use and its application under the Betamax standard. Finally, Part IV concludes that the fair use defense must co-exist with the DMCA in order to maintain an appropriate balance of power between copyright owners and the public. Part IV then proposes a solution for restoring that balance.
Devon Thurtle, A Proposed Quick Fix To the DMCA Overprotection Problem That Even a Content Provider Could Love . . . or at Least Live With, 28 SEATTLE U. L. REV. 1057 (2005).