The US, along with the UK, is a common law country, meaning the judicial branch has fairly wide powers to interpret the law. This is actually the basis of exemptions for fair use; long before the 1976 Copyright Act, courts had spent decades insisting that copyright didn’t prevent all unauthorized uses.

In civil law countries, by contrast, courts are left with far less leeway to overturn or modify statutes through, e.g., constitutional interpretation. As William Patry elaborates:

In civil law countries, exceptions to rights don’t take the form of fair use, but rather statutory provisions that spell out the permitted conduct. This approach has some problems, though, principally rigidity: if something is not specifically enumerated, it is usually deemed excluded at least with respect to the provision in question. The U.S. has such provisions too, like Section 108, but then we also have the safety valve of Section 107. Fair use is designed to (but doesn’t always in practice) provide the type of flexibility that specific exemptions don’t. Even other common law countries, like the UK, Canada, and Australia, have migrated away from fair use and toward fair dealing and specific provisions.

Enter the DMCA, which has been used to squash consumer-friendly interpretations of 107, including the Sony decision, which would permit time- and space-shifting of copyrighted content.

A court may well still hold that these are noninfringing behavior, but 17 USC § 1201 makes that point moot. Circumventing a technological measure that controls access, for any reason not specifically permitted, is illegal. The Copyright Office has a mechanism for permitting such exemptions, but through three cycles, they have never recognized the rights of end users.

For an example of how this plays out in the marketplace, Patry cites this EFF post, “Stealing Fair Use, Selling It Back to You,” discussing the movie industry’s attempts to sell you downloads of movies you have already purchased on DVD. This doesn’t work with CDs because we have the legal right to rip CDs onto our computers. Yet the Copyright Office denied the proposal to exempt media such as DVDs for personal use on the grounds that space shifting is “mere convenience” (pdf; see p. 72).

In other words, copyright exemptions are supposed to be open to broad interpretation by the courts. Thanks to the DMCA, however, only specifically enumerated, brutally narrow exemptions are permitted. These exemptions can still be very useful and important (see next post), but they are not nearly as flexible or valuable as fair use pre-DMCA.