The DMCA: Striking a Better Balance

-- By BrianS - 16 Nov 2009

I. Corley, Elcom, and 321 Studios

The Digital Millennium Copyright Act significantly altered the copyright landscape. In Universal City Studios v. Corley 273 F.3d 429 (2d Cir. 2001), 321 v. MGM Studios, 307 F.Supp.2d 1085 (N.D.Cal. 2004), and U.S. v. Elcom Ltd., 203 F.Supp.2d 1111 (N.D.Cal. 2002), courts have analyzed the relationship between the DMCA, the First Amendment, and fair use. In this essay, I respond to these cases and argue that the DMCA undermines fair use and strikes a poor balance between the rights of authors and the public.

A common defense of the DMCA is the claim that anyone who possesses property rights is entitled to prohibit access by unauthorized persons. In Corley for example, the court noted that homeowners can padlock their doors or place valuables in a safe; the court considered the DMCA as empowering similar protection for DVDs. This comparison is flawed, however, because there is no doctrine of fair use for burglary but there is for copyright law. Under the fair use doctrine, the public has a right to borrow your valuables and innovate therefrom, within section 107's parameters. The DMCA fundamentally altered this right.

In Corley, 321 Studios, and Elcom, the courts downplayed this alteration by concluding that the DMCA does not prohibit fair uses. Instead, it bars "trafficking in a decryption code that enables unauthorized access to copyrighted materials." Corley, 273 F.3d at 459. "Fair use of a copyrighted work continues to be permitted, . . . even though engaging in certain fair uses of digital works may be made more difficult if tools to circumvent use restrictions cannot be readily obtained." Elcom, 203 F.Supp.2d at 1125 (emphasis added); see also 321 Studios, 307 F.Supp.2d at 1102.

The distinction these courts drew is largely illusory. When media is broadly encrypted, you cannot have the relevant speech without the decryption. By barring the tools providing access, the court bars the access itself for many users. See, e.g., Jacqueline D. Lipton, Solving the Digital Piracy Puzzle: Disaggregating Fair Use from the DMCA's Anti-Device Provisions, 19 Harv. J.L. & Tech. 111, 115 (2005) ("[A]lthough copyright law technically allows circumventing technologies in order to make a fair use, [a] lack of technological resources [can] effectively destroy[] this allowance."). This is especially true if circumvention programs like the one in Elcom are impermissible, because that tool specifically encompassed fair uses. See also ElcomSoft's Motion to Dismiss. If tools intended for fair uses are impermissible, what circumvention programs are proper? According to the DMCA, none.

II. Restricting Innovation

Courts have suggested that fair uses are still possible because individuals can, for example, quote from works. However, today's fair users innovate not only in text, they speak in the language of video. The courts' theories give insufficient value to such speech, and fail entirely to encapsulate other important fair uses like making back-up copies.

The impact of the DMCA on speech is real. There is mounting evidence that the DMCA's chilling effect is significant. It is ironic that Congress specifically stated in the DMCA that the Act would not affect First Amendment rights or fair use. See 17 U.S.C.A. §§ 1201(c)(1), (c)(4). The DMCA has undermined both. See, e.g., Ryan L. Van Den Elzen, Decrypting the DMCA: Fair use as a Defense to the Distribution of DeCSS, 77 Notre Dame L. Rev. 673, 691-92 (2001).

III. Alternatives

There are at least two possible solutions. The first is within the Act itself; broad exception-making under section 1201(a)(1)(C). Thus far, however, that has not occurred. It is not clear that such efforts would succeed given the historically narrow exceptions authorized. A second possibility is reworking the DMCA to focus on improper circumvention, instead of blindly discriminating against all circumvention tools. This option would thus permit distribution of tools that specifically target, in good faith, circumvention for noninfringing uses. Both revisions would improve access to encrypted works for non-infringing uses, and would thereby help restore balance to the authors-public scale. And under both alternatives, the DMCA would still provide protection against uses that are not "permitted by law" (as international treaties require it to) because circumventing-to-infringe would still be heavily punished. See WIPO Treaty, Art. 11 & Art. 12.

IV. Conclusion

As lawyers, scholars, and Congress itself have noted, the DMCA's protections "have little, if anything, to do with copyright law." See, e.g., David Nimmer, A Riff on Fair Use in the Digital Millenium Copyright Act, 148 U. Pa. L. Rev. 673, 686 n.66 (2000). They are instead a form of paracopyright, id.; "para," for me, suggesting something darker. The DMCA takes from public rights but gives little back. Further, by restricting access to circumvention tools, the DMCA obstructs less sophisticated users from making fair use of a work while largely failing to stop those the Act fears most. See, e.g., DRM: The State of Disrepair, Endgadget.com (Feb. 16, 2007) (noting the categorical success in dismantling encryption by sophisticated parties). "[A] law such as the DMCA that focuses on regulating circumvention technologies per se simply cannot facilitate socially desirable access to and use of works while at the same time prohibiting harmful access and use...." Lipton, 19 Harv. J.L. & Tech. at 119. The DMCA as crafted is a brain surgeon wielding a machete; in the delicate area of author rights vs. user rights, a finer tool is required.

The Supreme Court has recognized that fair use plays a longstanding, important role in copyright law. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) ("From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose....'"). The DMCA, however, undermines fair use. By inhibiting the progress of knowledge and creativity possible through fair use, the DMCA upsets the author-public rights balance. Congress should remedy that imbalance. Revising the DMCA to be consistent with fair use is an important step.

Additional Reading: Big Content's "theater of the absurd" at DMCA hearings, ArsTechnica.com

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, BrianS

The core of your paper seems to be a suggestion that either Congress or the Copyright Office take action to ensure that the DMCA targets only the conduct of “improper” circumvention and not the production or distribution of circumvention technologies. Unfortunately, your conclusion doesn’t flesh out the implications of this suggestion. As a result, I am left with several questions: (1) What purpose, if any, would DMCA serve if it reached only “improper” conduct? (2) Should DMCA simply be repealed? (3) if DMCA were repealed, does current fair use doctrine “strike the right balance” between author’s rights and fair use?

-- StephenClarke - 19 Nov 2009

Thank you for your comments, Stephen.

Re: (1) If the DMCA were modified as I suggested, it would reach far less than it reaches now. It would basically just make infringement penalties worse for those who circumvented protections on top of infringing. The DMCA would then target users more than decryption product makers. Your comment makes me think I should add a third option, one that alters the DMCA to still permit targeting circumvention tools that are accompanied with inducement to infringe (something along the lines of Grokster's approach perhaps). I don't favor this approach myself (see my next paragraph), but it's better than the current state of the DMCA.

Re: (2) Yes, as a matter of personal preference, I think the DMCA should be flat-out repealed. But I don't think that's going to happen, and we would be violating international treaties if we did so (not that this has stopped us from other legislative preferences).

Re: (3) In the context of the current rights-based IP system, yes, I think fair use is helpful. I have significant disagreements as to how some courts are handling the fourth factor of fair use, but that's probably going way beyond the scope of your question. Through this semester, I have found myself shifting towards the idea that we have it all wrong in our current copyright/patent system and that the zero-marginal cost world has really done all Professor Moglen has talked about. I am not there all the way yet, but I think about it each week. To that end, fair use is the best existing tool I know of for accomplishing the goals of mass (free) distribution until the broader system itself is revised.

Thanks again for the feedback. I will revise portions of the essay to try and address the ideas your questions raise.

-- BrianS - 20 Nov 2009

Brian,

Thanks for your insightful comments on my essay. I intend to incorporate them into a revision.

With respect to your essay, I agree with your position. I particularly think that your distinction between copyright law, which provides for a fair use exception, and real property law, which does not is valid and controlling with respect to the terms of the DMCA. Expanding on that idea, it seems that the court in Universal City Studios v. Corley 273 F.3d 429 (2d Cir. 2001), for example, also short-changed the overly burdensome aspect of First Amendment case law with respect to the DMCA. In other words, even if one accepts that some unprotected speech, i.e., speech that would violate copyright law could permissibly be curbed by the DMCA, it seems certain that such Act also curbs and chills protected speech, i.e., speech that constitutes fair use. See Board of Education v. Pico, 457 U.S. 853, 874, n.26 (1982) (“We have recognized in numerous precedents that when seeking to distinguish activities unprotected by the First Amendment from other, protected activities, the State must employ ‘sensitive tools’ in order to achieve a precision of regulation that avoids the chilling of protected activities. See, e. g., Speiser v. Randall, 357 U.S. 513, 525-526 (1958); NAACP v. Button, 371 U.S. 415, 433 (1963); Keyishian v. Board of Regents, 385 U.S. 589, 603-604 (1967); Blount v. Rizzi, 400 U.S. 410, 417 (1971). In the case before us, the presence of such sensitive tools in petitioners' decisionmaking process would naturally indicate a concern on their part for the First Amendment rights of respondents; the absence of such tools might suggest a lack of such concern. See 638 F.2d, at 416-417 opinion of Sifton, J.).”). Therefore, the DMAC as written would seem to violate the First Amendment.

-- BrettJohnson - 20 Nov 2009

Brett,

Thank you for the detailed citations and comment. I appreciate it. I thought about approaching this essay initially from a First Amendment/fair use angle. I actually wrote in an initial, barebones analysis of the O'Brien test being applied in my first several drafts. I deleted it only because I didn't think I could do it justice in 1000 words. It is a matter I intend to return to, however, in my writings in the coming years. I will look back on this post to your citations when I do so. Thank you.

-- BrianS - 24 Nov 2009

I'm not sure why careful legal analysis has to be joined to political unrealism here. The copyrights industries had the money to buy the DMCA from a corrupt Congress and they have the money to keep it. Fair use is a defense to infringement in US copyright law, not an affirmative right or a limitation on copyright, and there isn't any realistic political leverage to be used on that front. Whether a better First Amendment position would have been successful in Corley is uncertain: I advocated for one among the lawyers, but the retention of Kathleen Sullivan was the prelude, oddly enough, to an abandonment of the best First Amendment arguments there available, largely for reasons advocated by Pamela Samuels. I thought Pam was wrong then, and the forcefulness with which Judge Newman rejected our position in the Second Circuit opinion seemed to me back then to confirm my view. I now think it didn't matter at all.

It is obvious, unless you drink entertainment industry Kool-Aid, that DMCA-like paracopyright is a very bad idea. But they have both money- and image-creation ability on their side, and in the US they are the most adroit lobbyists of all. They have spread these conceptions not only into one bad US statute but into the fabric of EU law, and global trade regulations. Your problem is not writing law review prose about what's happened or why it is bad: your problem is figuring out how to destroy the industry or its political influence before it locks up all the cultural works of the 20th century by controlling all the devices of the 21st, and—in coopetition with the network operators—buries its politics in the substance of the Internet itself. You're not going to do it this way.