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The DMCA: Striking a Better Balance

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The DMCA: Seeking a Better Balance

 -- By BrianS - 16 Nov 2009

I. Corley, Elcom, and 321 Studios

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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.
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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 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.
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II. Restricting Innovation

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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.
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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).
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III. Alternatives

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III. Going Forward

 
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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.
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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.

Congress appears uninterested in revising the DMCA and even less interested in scraping it entirely. This is unfortunate, as reworking the DMCA to focus on improper circumvention instead of blindly discriminating against all circumvention tools would be a fairly simple step in the right direction. And while the DMCA itself could in theory address the author/public rights imbalance---via broad exception-making under section 1201(a)(1)(C)---that has not occurred thus far, and the historically narrow exceptions authorized do not indicate broad exceptions are forthcoming.

 

IV. Conclusion

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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.
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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. By limiting the freedom to innovate to those who fall in narrow categories, and even there, to those who possess the necessary technical expertise, the DMCA roadblocks progress. The priorities of the legislation are clear, and as a result, so too is the message sent to the public:
 
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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.
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Innovate at your own peril.
 

BrianSFirstPaper 16 - 29 Jan 2010 - Main.BrianS
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  its politics in the substance of the Internet itself. You're not going to do it this way.
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Professor Moglen,

Thank you for your comments. While I do think the DMCA is an unwise statutory device, I know that the glancing blows I have thrown at it here will not result in a knockout. Far from it. And I do think that the First Amendment argument is stronger than the general policy observation I have made here. The only reason I did not tackle it instead was because I did not think I could to it justice in 1000 words.

My goal here was to communicate succinctly that there are sound reasons to question the DMCA model. I sought to do so because remarkably it seems that some have not recognized the dangers of the DMCA, some who are not purple-tongued Kool Aid drinkers but are nevertheless unaware of the DMCA's threat.

Thank you again for your comments. I will consider if there are ways I can revise to address your well-taken points.

-- BrianS - 29 Jan 2010

 
 
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BrianSFirstPaper 15 - 25 Jan 2010 - Main.EbenMoglen
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The DMCA: Striking a Better Balance

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 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

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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.
 
 
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BrianSFirstPaper 14 - 28 Nov 2009 - Main.BrianS
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The DMCA: Striking a Better Balance


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I. Corley, Elcom, and 321 Studios

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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 rights-holders and the public.
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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.

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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 was aimed specifically at fair uses. See ElcomSoft Press Release; ElcomSoft's Motion to Dismiss. If tools intended for fair uses are impermissible, what circumvention tools are proper? According to the DMCA, none.
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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

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Courts have suggested that fair uses are still possible because individuals can, for example, quote from works. However, today's fair users quote 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.
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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.
 
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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 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).
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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

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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, this revision would also be consistent with US treaty obligations. See id. at Art. 11, 12.
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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

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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 a different meaning. The DMCA takes from public rights but gives little in return. Further, 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. See also 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.
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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.


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Additional Reading: Big Content's "theater of the absurd" at DMCA hearings, ArsTechnica.com
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-- BrettJohnson - 20 Nov 2009

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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

 
 
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BrianSFirstPaper 12 - 20 Nov 2009 - Main.BrettJohnson
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 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

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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

 
 
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BrianSFirstPaper 11 - 20 Nov 2009 - Main.BrianS
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 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

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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

 
 
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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

 
 
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The DMCA: Striking a Better Balance


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

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The DMCA: Striking a Better Balance

 
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-- By BrianS - 11 Nov 2009
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-- By BrianS - 16 Nov 2009
 

I. Corley, Elcom, and 321 Studios

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The DMCA significantly altered the copyright landscape. 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 examples, I argue in this essay that the DMCA strikes a poor balance between rights-holders and the public.
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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 rights-holders and the public.
 
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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 previously had a right to look in your safe, borrow your valuables, and innovate therefrom, within section 107's parameters. The DMCA fundamentally altered this arrangement.
>
>
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.
 
Changed:
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In Corley, 321 Studios, and Elcom, the courts minimized this alteration by concluding that the DMCA does not prohibit fair uses 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.
>
>
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.
 
Changed:
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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 aimed specifically 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 are proper? According to the DMCA, none.
>
>
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 was aimed specifically at fair uses. See ElcomSoft Press Release; ElcomSoft's Motion to Dismiss. If tools intended for fair uses are impermissible, what circumvention tools are proper? According to the DMCA, none.
 

II. Restricting Innovation

Changed:
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The Corley and Elcom courts suggested that fair uses are still possible because individuals can do so by, e.g. quoting from the works in question or recording a video feed using a camera aimed at the monitor. The assertion 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. Further, today's fair users quote 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.
>
>
Courts have suggested that fair uses are still possible because individuals can, for example, quote from works. However, today's fair users quote 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.
 
Changed:
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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).
>
>
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 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).
 
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III. Potential Solutions

>
>

III. Alternatives

 
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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.
>
>
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, this revision would also be consistent with US treaty obligations. See id. at Art. 11, 12.
 

IV. Conclusion

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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, implying a different relation. The DMCA takes from public usage rights but gives little in return. Further, 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. See also 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.
>
>
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 a different meaning. The DMCA takes from public rights but gives little in return. Further, 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. See also 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.
 
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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 the author-public balance, it inhibits the progress of knowledge and creativity possible through fair use. Congress should remedy the imbalance. Revising the DMCA to be consistent with fair use is a critical step.
>
>
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.
 

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, BrianS

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BrianSFirstPaper 7 - 16 Nov 2009 - Main.BrianS
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IV. Conclusion

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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, implying a different relation. The DMCA takes from public usage rights but gives little in return. Further, 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...." 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.
>
>
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, implying a different relation. The DMCA takes from public usage rights but gives little in return. Further, 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. See also 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, '[t]o promote the Progress of Science and useful Arts....'"). The DMCA, however, tilts protection heavily towards rights-holders. In upsetting the author-public balance, it inhibits the progress of knowledge and creativity possible through fair use. Congress should remedy the imbalance. Revising the DMCA to be consistent with fair use is a critical step.

BrianSFirstPaper 6 - 15 Nov 2009 - Main.BrianS
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I. Corley, Elcom, and 321 Studios

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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.
>
>
The DMCA significantly altered the copyright landscape. 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 examples, I argue in this essay that the DMCA strikes a poor balance between rights-holders and the public.
 
Changed:
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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.
>
>
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 previously had a right to look in your safe, borrow your valuables, and innovate therefrom, within section 107's parameters. The DMCA fundamentally altered this arrangement.
 
Changed:
<
<
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.
>
>
In Corley, 321 Studios, and Elcom, the courts minimized this alteration by concluding that the DMCA does not prohibit fair uses 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.
 
Changed:
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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.
>
>
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 aimed specifically 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 are proper? According to the DMCA, none.
 

II. Restricting Innovation

Changed:
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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).
>
>
The Corley and Elcom courts suggested that fair uses are still possible because individuals can do so by, e.g. quoting from the works in question or recording a video feed using a camera aimed at the monitor. The assertion 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. Further, today's fair users quote 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.
 
Changed:
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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.
>
>
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).
 

III. Potential Solutions

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IV. Conclusion

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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.
>
>
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, implying a different relation. The DMCA takes from public usage rights but gives little in return. Further, 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...." 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.
 
Changed:
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<
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.
>
>
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 the author-public balance, it inhibits the progress of knowledge and creativity possible through fair use. Congress should remedy the imbalance. Revising the DMCA to be consistent with fair use is a critical step.
 

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The DMCA, Fair Use, and the First Amendment: A Case Study in Universal City Studios v. Corley

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

 -- By BrianS - 11 Nov 2009
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I. Universal City Studios v. Corley

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I. Corley, Elcom, and 321 Studios

 
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In Universal City Studios v. Corley, the Second Circuit analyzed the program DeCSS? under the DMCA and considered the DMCA's relationship to the First Amendment and fair use. See also Paramount Pictures Corp. v. 321 (link connects to Findlaw PDF). In essay, I argue that Corley reached the wrong result and that the DMCA cannot be separated from considerations of fair use and the First Amendment.
>
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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.
 
Changed:
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First, in discussing the DMCA, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door. This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law.
>
>
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.
 
Changed:
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The Second Circuit neatly avoided this concern by concluding that "nothing in the injunction prohibits [appellants] from making [] fair use [of copyrighted materials]. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials." The problem is that when media is broadly encrypted, you cannot have the relevant speech without the decryption, and by barring the tool creating access the court effectively bars the access itself for most 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."). [discuss Elcom's facts]
>
>
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.
 
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Both the district court and the Second Circuit dismissed this concern based on a lack of evidence that the DMCA is in fact inhibiting people's speech. However, the DMCA's heavy civil fines and even imprisonment significantly threaten to chill speech. There is mounting evidence that the DMCA's chilling effect is very real. It is shocking if Congress in fact intended this result since Congress specifically stated in the DMCA that its enactment would not diminish First Amendment rights or affect the fair use defense. See 17 U.S.C.A. 1201(c)(1), (c)(4). The DMCA has clearly undermined both.
>
>
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.
 
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The Corley court also rejected the claim that the DMCA limited fair use by asserting that individuals wishing to make fair use of something could simply use versions other than DVD, such as recording the video feed using a camera aimed at the monitor.* The court's fundamental assertion that to make a fair use, you must use an obsolete or inferior format is striking in light of fair use's role in advancing science and the arts. It is substantially unfortunate if that "advancement" is henceforth limited to grainy pictures and obsolete formats.
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II. Restricting Innovation

 
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Finally, the court's comparison to the First Amendment standard described in United States v. O'Brien overlooks an essential difference between the facts of O'Brien and the facts in Corley. In O'Brien, the Supreme Court noted as part of its expressive conduct test that the draft-card burning protester had alternative means of speaking. This is significantly less true for encrypted media because, absent programs like DeCSS? , individuals cannot "speak" using the relevant media at all. They can quote from it, or perhaps pluck scenes from unencrypted trailers, but a meaningful portion of their vocabulary has been banned by DMCA-backed encryption. O'Brien's standard is hardly directly analogous.
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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).
 
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II. Potential Solutions

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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.
 
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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., an expansion in the protections rights-holders may claim and one that operates to significantly restrict downstream user rights under the fair use doctrine. 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). 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 likely was aimed most directly at: hackers. Cf. DRM: The State of Disrepair, Endgadget.com (Feb. 16, 2007) (noting the categorical success in dismantling encryption).
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III. Potential Solutions

 
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There are at least three possible solutions. The first is within the Act itself; broad rule-making under section 1201(a)(1)(C). Thus far, that has not occurred. See U.S. Copyright Office, Rulemaking on Anticircumvention. Accordingly, it is not necessarily a likely solution.
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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.
 
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A second possibility would be reworking the DMCA to focus on improper circumvention itself, instead of blindly discriminating against the tools facilitating circumvention. Because this modification would be a radical change in the DMCA, it too is unlikely.
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IV. Conclusion

 
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The third solution is to discard the DMCA entirely and start from scratch. While similarly unlikely, this approach is the best. "[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 has as much success as a brain surgeon wielding a machete; in the delicate area of author rights vs. user rights, a finer blade is required.
>
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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.
 
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III. Conclusion

The Supreme Court has recognized that fair use plays a central role in the balance between rights-holders and the public 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 the scale heavily towards rights-holders to the detriment of the public. In upsetting that balance, it inhibits the advancement of knowledge and creativity possible through fair use. It is time for Congress to begin to set the scales back to even. Revising the DMCA to be consistent with fair use is a critical step.

>
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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.
 

BrianSFirstPaper 4 - 14 Nov 2009 - Main.BrianS
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The DMCA, Computer Code, Fair Use, and the First Amendment: A Case Study in Universal City Studios v. Corley

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The DMCA, Fair Use, and the First Amendment: A Case Study in Universal City Studios v. Corley

 -- By BrianS - 11 Nov 2009
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Universal City Studios v. Corley

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I. Universal City Studios v. Corley

 In Universal City Studios v. Corley, the Second Circuit analyzed the program DeCSS? under the DMCA and considered the DMCA's relationship to the First Amendment and fair use. See also Paramount Pictures Corp. v. 321 (link connects to Findlaw PDF). In essay, I argue that Corley reached the wrong result and that the DMCA cannot be separated from considerations of fair use and the First Amendment.
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First, in discussing the proper scope of First Amendment protection to afford computer code, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door. This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law. While a homeowner is not required to give his neighbor a key to his front door so that the neighbor can browse the homeowner's belongings, fair use empowers authors to innovate in certain ways using property held by another.
>
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First, in discussing the DMCA, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door. This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law.

The Second Circuit neatly avoided this concern by concluding that "nothing in the injunction prohibits [appellants] from making [] fair use [of copyrighted materials]. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials." The problem is that when media is broadly encrypted, you cannot have the relevant speech without the decryption, and by barring the tool creating access the court effectively bars the access itself for most 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."). [discuss Elcom's facts]

Both the district court and the Second Circuit dismissed this concern based on a lack of evidence that the DMCA is in fact inhibiting people's speech. However, the DMCA's heavy civil fines and even imprisonment significantly threaten to chill speech. There is mounting evidence that the DMCA's chilling effect is very real. It is shocking if Congress in fact intended this result since Congress specifically stated in the DMCA that its enactment would not diminish First Amendment rights or affect the fair use defense. See 17 U.S.C.A. 1201(c)(1), (c)(4). The DMCA has clearly undermined both.

 
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The Second Circuit neatly avoided this concern by concluding that "nothing in the injunction prohibits [appellants] from making [] fair use [of copyrighted materials]. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials." The problem is that encryption-breaking programs and the speech that would result from decrypted media cannot be neatly separated; when media is broadly encrypted, you cannot have the relevant speech without the decryption. Both the district court and the Second Circuit dismissed this concern based on a lack of evidence that the DMCA is in fact inhibiting people's speech. This approach ignores the fundamental doctrine in First Amendment law that where an act threatens to chill speech the act is problematic. The DMCA's power to permit heavy civil fines and even imprisonment significantly threaten to chill speech. There is mounting evidence that the DMCA's chilling effect is very real.
>
>
The Corley court also rejected the claim that the DMCA limited fair use by asserting that individuals wishing to make fair use of something could simply use versions other than DVD, such as recording the video feed using a camera aimed at the monitor.* The court's fundamental assertion that to make a fair use, you must use an obsolete or inferior format is striking in light of fair use's role in advancing science and the arts. It is substantially unfortunate if that "advancement" is henceforth limited to grainy pictures and obsolete formats.
 
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The court also rejected the claim that the DMCA limited fair use by asserting that individuals wishing to make fair use of something could simply use versions other than DVD, such as recording the video feed using a video camera aimed at the television or monitor.* Those overlooks, among other things, that movies are not always widely-released on VHS at this stage in history. People who wish to innovate using another's work do not necessarily even own VHS players. The court's fundamental assertion that to make a fair use, you must use an obsolete format is striking in light of fair use's stated purpose: [to advance quote]. While the court was likely correct in finding that fair use does not require works be made available in a specific format, it should at least enter into the analysis that many formats are not available,
>
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Finally, the court's comparison to the First Amendment standard described in United States v. O'Brien overlooks an essential difference between the facts of O'Brien and the facts in Corley. In O'Brien, the Supreme Court noted as part of its expressive conduct test that the draft-card burning protester had alternative means of speaking. This is significantly less true for encrypted media because, absent programs like DeCSS? , individuals cannot "speak" using the relevant media at all. They can quote from it, or perhaps pluck scenes from unencrypted trailers, but a meaningful portion of their vocabulary has been banned by DMCA-backed encryption. O'Brien's standard is hardly directly analogous.
 
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II. Potential Solutions

 
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The court also correctly noted that "government regulation of expressive activity is 'content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 720 (2000).
>
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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., an expansion in the protections rights-holders may claim and one that operates to significantly restrict downstream user rights under the fair use doctrine. 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). 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 likely was aimed most directly at: hackers. Cf. DRM: The State of Disrepair, Endgadget.com (Feb. 16, 2007) (noting the categorical success in dismantling encryption).
 
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Finally, the court's comparison to the First Amendment standard described in United States v. O'Brien overlooks an essential difference between the facts of O'Brien and the facts in Corley. Further, the court's suggestion that the DMCA is "unrelated to the suppression of free expression" is also puzzling; a central purpose of the DMCA is to help prevent the dissemination of expression by restricting access by pirates.
>
>
There are at least three possible solutions. The first is within the Act itself; broad rule-making under section 1201(a)(1)(C). Thus far, that has not occurred. See U.S. Copyright Office, Rulemaking on Anticircumvention. Accordingly, it is not necessarily a likely solution.
 
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Conclusion

>
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A second possibility would be reworking the DMCA to focus on improper circumvention itself, instead of blindly discriminating against the tools facilitating circumvention. Because this modification would be a radical change in the DMCA, it too is unlikely.
 
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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., an expansion in the protections rights-holders may claim and one that operates to significantly restrict downstream user rights under the fair use doctrine. By restricting production and access to circumvention tools, the DMCA stops less sophisticated fair users while largely failing to stop the most "dangerous" infringers, those that are significantly motivated and sophisticated. See, e.g., DRM: The State of Disrepair, Endgadget.com (Feb. 16, 2007).
>
>
The third solution is to discard the DMCA entirely and start from scratch. While similarly unlikely, this approach is the best. "[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 has as much success as a brain surgeon wielding a machete; in the delicate area of author rights vs. user rights, a finer blade is required.

III. Conclusion

The Supreme Court has recognized that fair use plays a central role in the balance between rights-holders and the public 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 the scale heavily towards rights-holders to the detriment of the public. In upsetting that balance, it inhibits the advancement of knowledge and creativity possible through fair use. It is time for Congress to begin to set the scales back to even. Revising the DMCA to be consistent with fair use is a critical step.

 
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:
 # * Set ALLOWTOPICVIEW = TWikiAdminGroup, BrianS
Deleted:
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Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list

BrianSFirstPaper 3 - 14 Nov 2009 - Main.BrianS
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META TOPICPARENT name="FirstPaper"
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 It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
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The DMCA, Computer Code, Fair Use, and the First Amendment

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The DMCA, Computer Code, Fair Use, and the First Amendment: A Case Study in Universal City Studios v. Corley

 -- By BrianS - 11 Nov 2009
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Universal City Studios v. Corley

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Universal City Studios v. Corley

 
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In Universal City Studios v. Corley, the Second Circuit analyzed the program DeCSS? under the DMCA and that Act's relationship to the First Amendment and fair use. In discussing the proper scope of First Amendment protection to afford computer code, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door.
>
>
In Universal City Studios v. Corley, the Second Circuit analyzed the program DeCSS? under the DMCA and considered the DMCA's relationship to the First Amendment and fair use. See also Paramount Pictures Corp. v. 321 (link connects to Findlaw PDF). In essay, I argue that Corley reached the wrong result and that the DMCA cannot be separated from considerations of fair use and the First Amendment.
 
Changed:
<
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This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law. While a homeowner is not required to give his neighbor a key to his front door so that the neighbor can browse the homeowner's belongings, fair use empowers authors to innovate in certain ways based on or using property held by another.
>
>
First, in discussing the proper scope of First Amendment protection to afford computer code, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door. This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law. While a homeowner is not required to give his neighbor a key to his front door so that the neighbor can browse the homeowner's belongings, fair use empowers authors to innovate in certain ways using property held by another.
 
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The court also correctly noted that "government regulation of expressive activity is 'content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 720 (2000).

Subsection A

Subsub 1

>
>
The Second Circuit neatly avoided this concern by concluding that "nothing in the injunction prohibits [appellants] from making [] fair use [of copyrighted materials]. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials." The problem is that encryption-breaking programs and the speech that would result from decrypted media cannot be neatly separated; when media is broadly encrypted, you cannot have the relevant speech without the decryption. Both the district court and the Second Circuit dismissed this concern based on a lack of evidence that the DMCA is in fact inhibiting people's speech. This approach ignores the fundamental doctrine in First Amendment law that where an act threatens to chill speech the act is problematic. The DMCA's power to permit heavy civil fines and even imprisonment significantly threaten to chill speech. There is mounting evidence that the DMCA's chilling effect is very real.
 
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Subsection B

>
>
The court also rejected the claim that the DMCA limited fair use by asserting that individuals wishing to make fair use of something could simply use versions other than DVD, such as recording the video feed using a video camera aimed at the television or monitor.* Those overlooks, among other things, that movies are not always widely-released on VHS at this stage in history. People who wish to innovate using another's work do not necessarily even own VHS players. The court's fundamental assertion that to make a fair use, you must use an obsolete format is striking in light of fair use's stated purpose: [to advance quote]. While the court was likely correct in finding that fair use does not require works be made available in a specific format, it should at least enter into the analysis that many formats are not available,
 
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Subsub 1

Subsub 2

Section II

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The court also correctly noted that "government regulation of expressive activity is 'content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 720 (2000).
 
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Subsection A

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Finally, the court's comparison to the First Amendment standard described in United States v. O'Brien overlooks an essential difference between the facts of O'Brien and the facts in Corley. Further, the court's suggestion that the DMCA is "unrelated to the suppression of free expression" is also puzzling; a central purpose of the DMCA is to help prevent the dissemination of expression by restricting access by pirates.
 
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Subsection B

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Conclusion

 
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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., an expansion in the protections rights-holders may claim and one that operates to significantly restrict downstream user rights under the fair use doctrine. By restricting production and access to circumvention tools, the DMCA stops less sophisticated fair users while largely failing to stop the most "dangerous" infringers, those that are significantly motivated and sophisticated. See, e.g., DRM: The State of Disrepair, Endgadget.com (Feb. 16, 2007).
 
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.

BrianSFirstPaper 2 - 14 Nov 2009 - Main.BrianS
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Paper Title

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The DMCA, Computer Code, Fair Use, and the First Amendment

 -- By BrianS - 11 Nov 2009
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Universal City Studios v. Corley

In Universal City Studios v. Corley, the Second Circuit analyzed the program DeCSS? under the DMCA and that Act's relationship to the First Amendment and fair use. In discussing the proper scope of First Amendment protection to afford computer code, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door.

This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law. While a homeowner is not required to give his neighbor a key to his front door so that the neighbor can browse the homeowner's belongings, fair use empowers authors to innovate in certain ways based on or using property held by another.

The court also correctly noted that "government regulation of expressive activity is 'content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 720 (2000).

 
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Section I

 

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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

Paper Title

-- By BrianS - 11 Nov 2009

Section I

Subsection A

Subsub 1

Subsection B

Subsub 1

Subsub 2

Section II

Subsection A

Subsection B


You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, BrianS

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list


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