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BrianSFirstPaper 8 - 17 Nov 2009 - Main.BrianS
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< | The DMCA, Fair Use, and the First Amendment: Striking a Better Balance | >
> | The DMCA: Striking a Better Balance | | | | |
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< | -- By BrianS - 11 Nov 2009 | >
> | -- 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. | >
> | 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. | | | | |
<
< | 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. | | | | |
<
< | 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 | |
<
< | 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. | | | | |
<
< | 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 | |
<
< | 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. | | | | |
<
< | 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. | | |
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BrianSFirstPaper 7 - 16 Nov 2009 - Main.BrianS
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| | | IV. Conclusion | |
<
< | As lawyers, scholars, and Congress itself have noted, the DMCA's protections "have little, if anything, to do with copyright law." See, e.g., David Nimmer, A Riff on Fair Use in the Digital Millenium Copyright Act, 148 U. Pa. L. Rev. 673, 686 n.66 (2000). They are instead a form of paracopyright, id.; "para," for me, 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. |
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BrianSFirstPaper 6 - 15 Nov 2009 - Main.BrianS
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| | | I. Corley, Elcom, and 321 Studios | |
<
< | In Universal City Studios v. Corley 273 F.3d 429, 459 (2d Cir. 2001), 321 v. MGM Studios, 307 F.Supp.2d 1085 (N.D.Cal. 2004), and U.S. v. Elcom Ltd., 203 F.Supp.2d 1111 (N.D.Cal. 2002), courts have analyzed the relationship between the DMCA, the First Amendment, and fair use. Using these cases as a launching point, I argue in this essay for revision of the DMCA. | >
> | 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. | | | | |
<
< | 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. | | | | |
<
< | 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. | | | | |
<
< | 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 | |
<
< | 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. | | | | |
<
< | 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 | | | IV. Conclusion | |
<
< | As lawyers, scholars, and Congress itself have noted, the DMCA's protections "have little, if anything, to do with copyright law." See, e.g., David Nimmer, A Riff on Fair Use in the Digital Millenium Copyright Act, 148 U. Pa. L. Rev. 673, 686 n.66 (2000). They are instead a form of paracopyright, id.; "para," for me, having a different context. By restricting production and access to circumvention tools, the DMCA obstructs less sophisticated users from making fair use of a work while largely failing to stop those the Act fears most. Cf. DRM: The State of Disrepair, Endgadget.com (Feb. 16, 2007) (noting the categorical success in dismantling encryption by sophisticated parties). "[A] law such as the DMCA that focuses on regulating circumvention technologies per se simply cannot facilitate socially desirable access to and use of works while at the same time prohibiting harmful access and use for digital piracy." Lipton, 19 Harv. J.L. & Tech. at 119. The DMCA as crafted is a brain surgeon wielding a machete; in the delicate area of author rights vs. user rights, a finer tool is required. | >
> | 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. | | | | |
<
< | 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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BrianSFirstPaper 5 - 15 Nov 2009 - Main.BrianS
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This document is not yet ready for review. | |
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< | The DMCA, Fair Use, and the First Amendment: A Case Study in Universal City Studios v. Corley | >
> | 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 | >
> | I. Corley, Elcom, and 321 Studios | | | | |
<
< | 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. | >
> | 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. | | | | |
<
< | 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. | | | | |
<
< | 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. | | | | |
<
< | 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. | | | | |
<
< | 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. | >
> | II. Restricting Innovation | | | | |
<
< | 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. | >
> | 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 | >
> | 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). | >
> | III. Potential Solutions | | | | |
<
< | 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. | >
> | 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. | | | | |
<
< | 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. | >
> | IV. Conclusion | | | | |
<
< | 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. | >
> | 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. | | | | |
<
< | 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. | >
> | The Supreme Court has recognized that fair use plays a longstanding, important role in copyright law. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) ("From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts....'"). The DMCA, however, tilts protection heavily towards rights-holders. In upsetting that balance, it inhibits the progress of knowledge and creativity possible through fair use. Congress should remedy the imbalances. Revising the DMCA to be consistent with fair use is a critical step. | | |
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BrianSFirstPaper 4 - 14 Nov 2009 - Main.BrianS
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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: A Case Study in Universal City Studios v. Corley | >
> | This document is not yet ready for review.
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 | >
> | 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. | >
> | 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. | | | | |
<
< | 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. | | | | |
<
< | 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, | >
> | 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. | | | | |
>
> | II. Potential Solutions | | | | |
<
< | 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). | >
> | 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). | | | | |
<
< | 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. | | | | |
<
< | Conclusion | >
> | 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. | | | | |
<
< | 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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