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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

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.

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 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.

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

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, (Feb. 16, 2007) (noting the categorical success in dismantling encryption).

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.

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.

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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r4 - 14 Nov 2009 - 09:38:03 - BrianS
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