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The DMCA, Fair Use, and the First Amendment: Striking a Better Balance

-- By BrianS - 11 Nov 2009

I. Corley, Elcom, and 321 Studios

In Universal City Studios v. Corley 273 F.3d 429, 459 (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. Using these cases as a launching point, I argue in this essay for revision of the DMCA.

In discussing the DMCA, Corley observed that anyone who possesses property rights is entitled to prohibit access by unauthorized persons. It noted that homeowners can padlock their doors or place valuables in a safe. It considered CSS as imposing similar protection for DVDs. This comparison is flawed for at least one reason: there is no doctrine of fair use for burglary, but there is for copyright law. Under fair use law, the public has a right to look in your safe, borrow your valuables, and innovate therefrom, within section 107's parameters.

The DMCA, however, restricts this right. Corley dismissed this concern in part by concluding that the DMCA does not prohibits making fair use of copyrighted materials. Instead, it bars "trafficking in a decryption code that enables unauthorized access to copyrighted materials." Corley, 273 F.3d at 459. Similarly, Elcom, concluded that "[f]air 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 fair use without the decryption. By barring the tool 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) (noting that "although 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 not permissible, because that tool was advertised as aiming at fair uses. See Discussion in ElcomSoft's Motion to Dismiss; Elcomsoft Press Release. If tools intended for fair uses are impermissible, what circumvention tools would be proper? None.

II. Restricting Innovation

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 diminish First Amendment rights or the fair use defense. See 17 U.S.C.A. §§ 1201(c)(1), (c)(4). The DMCA has clearly 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).

Finally, the Corley and Elcom courts' arguments that individuals wishing to make fair uses can still do so by, e.g. quoting from the works in question or recording a video feed using a camera aimed at the monitor, are unpersuasive. Today's fair users quote not just in text, but speak in the language of video. The courts' assertions that a fair use must use an obsolete or inferior format pays insufficient credit to today's media and to fair use's role in advancing science and the arts. The courts' theories fail entirely to encapsulate other important fair uses like making back-up copies.

III. Potential Solutions

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. See U.S. Copyright Office, Rulemaking on Anticircumvention. It is not clear that such efforts would succeed given the historically narrow exceptions authorized. Id. A second possibility would be reworking the DMCA to focus on improper circumvention, instead of blindly discriminating against tools facilitating circumvention. This modification would be a significant change to the DMCA. However, the DMCA would still provide protection to rights-holders against uses that are not "permitted by law." See WIPO Treaty Art. 11. Accordingly, it appears this revision would also be consistent with US treaty obligations. See id. at Art. 11, 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, having a different context. By restricting production and 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. Cf. 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 for digital piracy." 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, '[t]o promote the Progress of Science and useful Arts....'"). The DMCA, however, tilts protection heavily towards rights-holders. In upsetting that balance, it inhibits the progress of knowledge and creativity possible through fair use. Congress should remedy the imbalances. Revising the DMCA to be consistent with fair use is a critical step.

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