Law in the Internet Society

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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.
 

Revision 17r17 - 08 Feb 2010 - 03:36:37 - BrianS
Revision 16r16 - 29 Jan 2010 - 22:11:04 - BrianS
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