I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.
Two recent developments have me wondering whether the trend towards limiting the DMCA’s overreach has reached a point where it’s now possible to declare victory of a sort. First, two Circuits–the Fifth and the Federal–are now on record as essentially requiring a plaintiff in a DMCA case to prove copyright infringement, and a third court, the Sixth, is not far behind. … Second, each recent round of the Librarian of Congress’s triennial DMCA rulemaking incorporates stronger and stronger protections for users. The 2006 rulemaking allowed DVD access controls to be circumvented by some users; the 2009 rulemaking (which was delayed until just last month) dramatically expanded this to include virtually all noncommercial users, so long as not too much of the underlying copyrighted content is taken (which looks an awful lot like a fair use type of inquiry).
Tim concludes by wondering “whether the DMCA controversy is now behind us; whether the worst of the statute’s sharp edges haven’t now been effectively worn away.”