Posted by: Macaulay Christian
April 20, 2015
Take a moment to think about computers. There isn’t an aspect of daily life that hasn’t been at least touched, if not outright revolutionized, by the advent of the computer. They no longer mammoth machines existing within the confines of a single, massive space—they’re portable. You probably have a laptop or notebook, maybe that’s what you are using to read this right now but, in the modern era, you aren’t shackled to just the more traditional idea of a computer, you could just as easily be reading this from you smartphone. Others still could be making use of an iPad or other tablet computer. Common accessories are becoming embedded with computing capabilities from watches to wristbands. Even the home is becoming more and more connected: Refrigerators, thermostats, and home automation technology. Your pet might have a GPS chip implanted in case they get lost. Your car speaks to you and understands your oral commands. Computers are everywhere in the 21st Century.
To put this revolution in some perspective, once the computer became a consumer good, civilization set sail from the old, analog world for a new, digital one. But, just as the first colonists who came to the Americas learned, not everything that worked in the old world works with the rules of the new one. Principally, how to strike the appropriate balance between an 18th Century Constitution and the technological realities of 2015? Do some constitutional protections not exist when applied to the digital world? Let me be clear, rumors of the demise of the Constitution in the digital age are greatly exaggerated, but there are real concerns confronting the Supreme Law of the Land, and First Amendment issues are only one of many. To narrow the discussion even further, we are going to look at one specific issue challenging fair use: The Digital Millennium Copyright Act’s anti-circumvention provision. This itself raises another question…
What is the Digital Millennium Copyright Act?
Put simply, the Digital Millennium Copyright Act, or DMCA, criminalizes any technological means of or the dissemination of knowledge to circumvent access to copyrighted content. That’s the thrust of the Act’s anti-circumvention provision. If there’s a technological lock on the content, you better be authorized to access that content, instead of finding a way to pick at the lock. The intention then is grounded in trying to protect the work an author produces, just as Article I, section 8 of the Constitution mandates.
So…the DMCA is just trying to protect what is already supposed to be protected but what otherwise might be vulnerable to infringement because of a rift between the analog and digital worlds? Yes and no. All work—and by work, I mean anything included under the definitions provided in 17 U.S.C. § 101—is protected by virtue of having been placed in a fixed and tangible medium, whatever that medium may be. To illustrate this point, take a moment to think back to any story you’ve written or a doodle you’ve made on a napkin. Both of those ordinary actions constitute a work of original authorship and are thus copyrightable. Now, this is a very basic example, and pursuing damages for infringement does requires registration with the U.S. Copyright Office, but it does help to orient one’s mind to thinking about copyright.
In the old world of copyright protection, if you had written a story you thought was worth sharing with the world, you would go through the process of finding editing and revision before securing a literary agent who would then shop your manuscript to publishing houses and, hopefully, land your work at a press. During this process, your work would become registered as a copyrighted work with the federal government, granting you legal avenues to protect your story, in addition to exclusive rights held by the copyright owner. That story would be protected not only for the rest of your life, but an additional seventy years.
Fair use begins to play a role in our discussion if we take a brief moment to expand on what those exclusive rights are. Under the Copyright Act of 1976, the owner of a copyright—so, our hypothetical scenario above, that would be you—is entitled to certain rights and privileges, among them are the reproduction of the copyrighted work in copies, prepare derivative works based upon the copyrighted work, and the distribution of copies to the public by sale, lease, rent, or lending. What fair use allows is for there to be some limitations on those exclusive rights to serve the public interest of Free Speech, such as allowing the work to be used in parodies, research, and teaching. Fair use is then a balance between the copyright interests, which serve an individual, and Free Speech interests, which serve society.
Until the advent of computers and the digitalization of information, the policing of copyright for potential infringement was easier in that it was not nearly so easy to disseminate information to thousands of people in minuscule amounts of time. If someone wanted to take your story and release it, for free, to the public, while under copyright protection in the analog world, it was possible, but always feasible. They would have to acquire a copy of your story and begin making numerous copies that would then be printed and distributed by hand…not particularly efficient if your goal is spread information to the greatest number of people, quickly, and at little financial cost to you. Today, all of that work to infringe can be accomplished with a few clicks of a mouse. That sort of piracy was just not available when the laws governing copyright were put into force, but nonetheless those laws continue to guide the legal regime’s enforcement and punishment of infringers. The DMCA attempted to curb the piracy of copyrighted works by realizing that there are substantive differences between the analog and digital worlds.
The DMCA-Fair Use Problem
If we think of the computer as a present-day Santa Maria carrying us to a wondrous new land of technological advancement, we should also think of the conflict that arose when two immensely differing cultures came into contact with the other. This conflict is not one that will lead to Austrian-accented killing machines or humanity enslaved to machines as living Duracell batteries, this conflict will and has been one of cultures and laws.
To help illustrate this divide, let us now suppose you own a DVD and, in the event that the fragile disc may become scratched or otherwise unreadable, decide that you want to protect your purchase by making a back-up copy. To facilitate your efforts to back-up your movie collection, you acquire software that will allow you to circumvent the CSS encryption on the DVDs, making their content freely accessible to be copied. This situation is quite similar to the facts laid out in 321 Studios v. Metro-Goldwyn-Mayer Studios, Inc. On its face, this issue seems relatively straightforward; after all, people have been doing effectively the same thing with music and CDs since the CD hit the market.
Another hypothetical that might be cause for concern is the legal implications for the amateur film critic on YouTube who uses short scenes from the film they are reviewing in the intro to their video. While they lawfully own a copy of the film, and while their use may defendable under fair use, they might still be subject to legal action because of having circumvented the DVD’s protective encryption. How worthwhile is a defense of fair use when the means by which one would achieve fair use is illegal or, at the very least, potentially subject to legal action (i.e. a lawsuit between the amateur YouTube critic and a major motion picture studio)? Constitutionally, if fair use is supposed to serve as a Free Speech caveat in copyright law, does the DMCA’s anti-circumvention provision more accurately circumvent the defense?
=The 321 Studios decision offered a few noteworthy lessons: The first being, although computer code does qualify as speech under the First Amendment, it is only that part of the speech which is expressive and not functional; the encryption barred the function of the code, not its conduct, thus, when applying an intermediate level of scrutiny, the government only requires an important interest in order to regulate. Second, fair use is remains a valid defense under the DMCA…so long as in the course of achieving that fair use, the work was not circumvented in anyway at anytime.
Borrowing a speculative situation from a law professor: Would a researcher, testing and in the process of testing is circumventing, products in order to better inform potential consumers, be in able to publish their findings? Well, if we take those facts, and are mindful of 321 Studios as well as the language from the DMCA itself 17 U.S.C. § 1201: “To ‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner” it may very well be the case that the researcher in this example would run a substantial risk of being in violation of the DMCA.
If the expression cannot be transmitted to the public, how is that not a violation of the First Amendment? Software, as expression, is created for its function and the function only exists because of the expression—it is an interesting conundrum that has emerged as a result of the collision between the analog and digital regimes. The anti-circumvention provision establishes a prior restraint on speech as it defaults to a presumption that an infringement or other violation has taken place. Take-down notices, such as might be sent by a major film studio to YouTube ordering that the amateur critic’s videos be removed, are exercised by the right holders’ themselves, skewing the balance that is fair use more in favor of copyright than Free Speech. Where other prior restraints are especially disfavored under the First Amendment, bearing a heavy presumption against constitutional validity, the anti-circumvention provision would seem to turn that principle on its head in the new digital world.