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DMCA Violates Article I Section 8 Clause 8 of the US Constitution

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Author Topic: DMCA Violates Article I Section 8 Clause 8 of the US Constitution  (Read 4933 times)
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« on: September 19, 2010, 01:55:53 pm »

Joshua Schwartz

I. Introduction

A. The Sky Is Not Falling

In 1998 Congress passed the Digital Millennium Copyright Act (DMCA) in response to perceived evils unleashed upon copyright holders by the advent of affordable digital technology allowing consumers to make perfect serial copies of works encoded in digital media with little difficulty [p96] and little cost. [1] A panicked entertainment industry convinced Congress that, unless a new law was passed to prevent this sort of copying, [2] it would be the end of the entertainment industry as we know it. Industry members claimed that, without broad protection outlawing new copying technologies, illegal copies would be freely traded with little to no control. They painted a picture of a world where digital copying technology was the evil inside Pandora’s Box and was starting to get out. They believed it had to be stopped before those evils were fully unleashed and could never be contained.

In response to these concerns, Congress passed the overly comprehensive DMCA to decisively close the lid on that box and keep all digital copying technologies locked up so that new technology would never foster its evil upon the poor and innocent copyright holders.[3] In doing so, however, Congress unleashed a far greater evil: the DMCA itself. The DMCA is an unconstitutional law that violates Article I, § 8 of the U.S. Constitution[4] in that the DMCA: (1) allows copyright holders to prevent the public from ever copying a work, which is in direct contravention of the limited times provision of that article; [5] and (2) hinders the progress of the sciences and useful arts of copying and storage technology which is also in direct contravention of the same section. The DMCA also has the additional effect of shrinking and practically eliminating fair use which is a hallmark of copyright law, by eliminating many of the innovative technological means by which fair use copies may be made.

This is not to say that the DMCA goal of stopping infringement should not be undertaken. Infringement is wrong and Congress should take reasonable means to prevent it. While this statute has a reasonable stated purpose, its extreme overbroadness is simply a knee-jerk reaction. Rather than target the small subsection of copying that is infringement, it targets all copying.

The DMCA rolls back advancements in fair use that have arisen over the past century. [6] Congress chose to focus on the problems that come with new technology rather than embrace the fact that new technology also [p97] comes with many advantages, such as giving citizens access to make fair use copies in a way they never could before. The legislation’s attitude reads like “out with the new, in with the old.” The DMCA illustrates the mistaken notion that by prohibiting all practical digital copying it puts Pandora’s evils back into the box. Opponents of this legislation should turn to the courts to repeal this law, since Congress does not appear to be doing so any time soon. When considering legal action, however, opponents of the DMCA should bear in mind that most of the major previous constitutional challenges to the DMCA have been unsuccessful.

In order to attack the DMCA successfully, future lawsuits should frame the issue clearly and convincingly with the proper litigants. Lawyers must persuade courts to think outside the confines of the Pandora’s Box mentality. Litigants must remind the courts that, while a less comprehensive statutory system than the DMCA may not be perfect, the alternative of trying to stop all copying is not realistic. At the same time, new innovative copying technologies do have the potential for abuse. If the DMCA is struck down or revised and fair use copying in digital media is restored, some people will find a way to abuse that fair use. This does not mean, however, that encouraging innovation in the new technologies and fair use copying within those technologies are not worthy goals.

There will always be members of society who will engage in infringing uses. There will always be hackers and others who will find a way to get around technological safeguards. Nonetheless, infringers represent a small segment of society. That segment does not justify the sort of panic legislation under which we now live. There is an old adage: “If you build a better mousetrap, they will beat a path to your door.” There also is a variation of that adage: “If you build a better mousetrap, they will build a better mouse.” In other words, no matter how good the digital protection, someone will circumvent it.

Even with the DMCA and the technological protections that it breathes legal life into, many of those same infringers will continue to get away with this behavior. The DMCA will have no effect on them, but the DMCA has the deleterious effect of hindering the development of innovative copying technologies and digital media storage units (e.g. larger multimedia hard drives, MP3 players, and computer video players to name a few), both of which can be used in a fair use capacity unless these technologies can now meet the new facetious standard of being a “household device.”

This Article will address the foregoing issues with respect to the DMCA. With fewer and fewer movies and CDs being released in non-digital format each year, where can consumers get audio visual works that [p98] do not fall under the DMCA? Except for the most ardent Luddites, all will be affected by the overreaching powers of this act.

For the purposes of this Article, I have chosen to use the term “entertainment producers” to describe copyright holders, as well as those actors in the market that actually produce the physical copy of the entertainment product. Often, those two groups are one and the same.

B. Breakdown of DMCA

None of the individual sections of the DMCA state that they prohibit the act of copyright infringement.[7] Nowhere in the list of the DMCA’s “violations” or “additional violations,” is something akin to “if a person without fair use rights in a particular work circumvents technological protections on that work, then in doing so, that person makes an infringing copy of the work.” Nowhere is the word infringement used. In fact, the Act does not require that the work whose protection you circumvented is a work that, in and of itself, is entitled to copyright protection.[8] The Act only prohibits trafficking in technology that can be used to circumvent technology that can protect a copyrighted work.[9] You need not use the technology for an infringing purpose, the technology must merely have the potential for an infringing use. This overbroadness can create far-reaching problems.

As long as a movie studio protects a public domain work with the same technology that they use to protect copyrighted works, any technology which would allow someone to make a copy of that particular public domain work (from its digital format) would be illegal under the DMCA because that same technology also has the capability to make a copy of “a” [10] work protected by copyright. This creates a huge incentive for entertainment producers to use complex technological safeguards to lock up all of their movies within the public domain. In fact, it behooves a studio to re-press movies and CDs with the latest protection just prior to that work’s entrance into the public domain. If entertainment producers play their cards right, they can actually use the provisions within the DMCA to lock up works that are in the public domain regardless of lower federal court rulings and a statement by the register of copyrights that such locking up cannot possibly occur in reality.

[p99] At first glance, section 1201 reads as if it only covers copying technologies applied to works that are under a copyright. [11] In other words, it seems that you would not be violating the statute if you circumvented the technology used to lock up access to or copying of, a work well within the public domain. This would, however, be incorrect. The statute is actually much more powerful than that and, in practice, is neutral in regard to whether the specific work to which access and copying are locked up is protected by copyright or not. The language in section 1201 actually extends DMCA protection to works unprotected by copyright.[12] Works unprotected by copyright become protected when the technology used to protect them is being used to protect at least one other work that is copyrighted.[13]

The DMCA uses language that allows a broad interpretation as to what constitutes a banned technology and all the means in which it is banned from entering the stream of commerce. All three key sections[14] of the DMCA addressing this point, circumvention technology, echo the same basic language. They state that “No person shall [sell or other related entry in the stream of commerce] . . . any technology that circumvents a technological measure that protects a work (or controls access to a work) protected under this title.” [15] The sections use the phrase “a work,” not “the [p100] work,” connoting that as long as the technological protection is being used to protect at least one work that is copyrightable, you cannot traffic in circumvention means that attack that protection.

It is in this regard that the DMCA is out of place with the rest of title 17. Before now, violations of a copyright existed in the form of infringement. [16] In other words, you could only violate someone’s copyright by infringing upon it. The DMCA adds a completely new class of violation that seems at odds with copyright as a legal principle. You can now have a copyright violation even though there is no infringement. The leading DMCA cases did not turn on issues of actual infringement at all, rather they tended to be actions for declaratory judgment under the trafficking provisions of the Act.

A copyright, by its very nature, invests its owner with some measure of legal right to control the who, what, when, why, and how the copying of their work takes place. The DMCA creates a new type of copyright without calling this right a copyright. The DMCA creates a pseudo-copyright for works whose original type of copyright (a true copyright under sections 106, 106A) may not even exist. The DMCA does this by controlling the means to make copies. The DMCA prevents trafficking in the technology, the means by which access and copying is achieved to reach the end, or a copy. While the end may still be legal, without the means to get there, the end becomes meaningless.

By controlling access to the means of copying, the producer of the work in its digital format completely controls whether or not the consumer can actually make a copy. Thus, the producer now has the final say as to whether the consumer can exercise their fair use legal rights. The producer completely controls a consumer’s ability to use the copyrighted work. The DMCA creates a practically unlimited de facto copyright for entertainment producers (DF-Copyright). This de facto copyright allows them to control copying of the work even though: (1) there is no legal infringement of the true copyright that applies to the work; or (2) when the work is not even eligible for a true copyright. [p101]

II. Constitutionality of the DMCA

A. History of the Constitutional Issues Raised in Copyright Cases

The U.S. Supreme Court has yet to address a case where the legal question at issue implicates the constitutionality of the DMCA.[17] However the unconstitutionality of the DMCA has been argued unsuccessfully both in the federal district courts and federal appellate courts. [18] The majority of the constitutional arguments focused on the First Amendment and argued that the DMCA unfairly restrains free speech. As of this date, there is no split among the circuits regarding the constitutionality of the Act. The lower courts ruled in favor of the entertainment producers.

The charge to convince a federal court of the DMCA’s unconstitutionality on First Amendment grounds has been woefully unsuccessful. A likely reason for the lack of success is that, in the past, federal courts, including the U.S. Supreme Court, have managed to strike a careful balance between copyright and the First Amendment. These courts have ruled, whenever possible, that copyright statutes do not trample on the First Amendment.[19]

Constitutional arguments regarding the limited times provision with respect to copyright argument has recently been brought before the U.S. Supreme Court in a non-DMCA case, and also before the lower courts in DMCA cases. [20] In all of those cases, the courts favored constitutionality and held for the entertainment producers. [21] Luckily, for similarly situated future litigants the cases upholding the constitutionality of the DMCA are lower appellate court cases. The U.S. Supreme Court has yet to rule on the constitutional validity of the statute.

Since there does not seem to be a split among the circuits, as to the First Amendment constitutionality of the DMCA, it is unlikely that the U.S. Supreme Court would grant certiorari in any of those types of cases and rule against the lower courts on the First Amendment issues. It is also unlikely that any new attacks along these First Amendment lines would meet with any greater success than they have so far.

[p102] Therefore, a litigant who wants to get the U.S. Supreme Court to take an interest in their case and hopefully hold the DMCA unconstitutional, in whole or part, must give the Court a new constitutional issue to discern. They must frame a constitutional issue the U.S. Supreme Court has not seen or addressed before in the realm of copyright.

For the last 125 years, the U.S. Supreme Court has not declared a federal intellectual property statute unconstitutional. No such ruling has come forth since the time of the Trademark Cases.[22] However, that is not to say that this cannot change or that the federal intellectual property statutes should be held inviolate above all. The U.S. Supreme Court exists to interpret the laws and, by that very nature, discern the constitutional limits of the law.

A logical place to begin framing this argument is with the patent and copyright clause which sets forth the constitutional mandate for the intellectual property laws. Then, one must contend that the DMCA is unconstitutional because Congress exceeded its authority under that clause when it enacted the DMCA. The clause’s mandate requires that any laws passed under it promote the sciences. The DMCA is unconstitutional because it is inconsistent with that very mandate. For that matter, any statute contrary to that purpose would be unconstitutional. The patent and copyright laws share their genesis in that same constitutional clause.[23] That clause makes the same requirements of the laws which stem from it, regardless of whether they are patent or copyright based. In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,[24] Justice Kennedy, writing for a unanimous court interpreting the purpose of the patent laws, stated:

    The patent laws “promote the Progress of Science and useful Arts” by rewarding innovation with a temporary monopoly. U.S. Const., Art. I, § 8, cl. 8. The monopoly is a property right; and like any property right, its boundaries should be clear. This clarity is essential to promote progress, because it enables efficient investment in innovation.[25]

That statement requires that the laws passed by Congress must “promote the progress of science.” The DMCA does not further this purpose. It fails to promote the progress of science and the arts by hindering the development and innovation in digital copying technology, as well as digital storage technology, thus slowing down a particular area [p103] of science. Consequently, the DMCA is in direct contravention of the patent and copyright clause’s promotion requirement.

The Act further runs afoul of that same constitutional provision by proscribing and eliminating the means of fair use copying preventing the actual copying of works that are in the public domain. This is unconstitutional because material in the public domain is, by its nature, material that is past its “limited times” and cannot be protected. By preventing works from being accessible for fair use once in the public domain, Congress has, in effect, granted an indefinite copyright.

B. Limited Monopoly

The purpose of the limited times provision of Article I, § 8 and the federal intellectual property laws that stem from it, is to strike a perfect balance between the privatization of ideas and their availability to the public. [26] The government grants creators a limited monopoly over their idea or invention to encourage them to develop such ideas, with the understanding that the idea will eventually pass into the public domain. [27] Any scheme that frustrates such passage runs contrary to the purpose of the intellectual property scheme. [28] The DMCA frustrates that purpose. Under the DMCA, the notion of a public domain for works that exist in a protected digital format is a legal fiction. While the work technically may, on paper, become part of that which belongs to the public, the public unfortunately lacks any real means in which to harness the reality of that work being in the public domain. In other words, the work may be in the public domain, but there are no means by which to access and make copies of that work.

A scheme which only permits access to lesser technology that only makes an inexact, [29] imperfect, and therefore flawed copy of a digital work can be compared to a scheme affecting photocopiers. It would be like saying that because all photocopiers have the ability to make a clean [p104] perfect copy of a copyrighted book, photocopiers can only be manufactured if they make grainy low-grade copies or inserted a prominent watermark saying “this is a copy” on all copies made.

As all media move towards digital formats, the DMCA allows entertainment producers to use technology to turn fair use into a legal fiction by either completely prohibiting copying or, at best, imposing low-grade copies that may be “fair” to make but no one could or would practically “use.” This alone may get the U.S. Supreme Court to take a special interest, because drastically restricting fair use would render all of their opinions in the area of fair use null and void. The U.S. Supreme Court will likely have a strong desire to preserve what is some of their strongest jurisprudence in the area of copyright law.

C. Other Constitutional Challenges in Intellectual Property Law

Outside of the First Amendment challenges to the intellectual property laws, the other main challenges to the constitutionality of intellectual property statutes have primarily been addressed in the context of the Supremacy Clause with respect to state intellectual property rights.[30] This is an area that has been well covered by the courts, and this type of constitutional challenge is inapplicable in a DMCA context at the moment.

D. Ideal Litigants for Challenging the Constitutionality of the DMCA

An ideal litigant or group of litigants would be those parties who develop the science of copying technology. Specifically, someone who makes legitimate technology that needs to circumvent digital protections so consumers can use that manufacturer’s legitimate product. These litigants would be hardware manufacturers and related components suppliers who specialize in developing high capacity storage units for multimedia that is converted from its original format[31] (e.g. Compact Discs (CDs) and Digital Versatile Discs (DVDs)).[32] It has long been hypothesized that in the end, the major battles regarding the constitutionality of the DMCA would pit the entertainment industry against hardware and software manufacturers. This is because hardware and software manufacturers have the deep pockets to take on the entertainment industry. Additionally, they have an incentive to wage this war because it is their pocketbooks that are being hurt by the DMCA. They must make the case that innovation in their industry is being hurt by the DMCA. The threat of having a technology declared illegal under the act, [p105] after millions of dollars are invested in that technology, turns the DMCA into the proverbial “Sword of Damocles” just waiting to fall. They need to argue that the Act lowers demand for their products and that they are not willing to invest as much money in research and development (R&D) of multimedia technologies in the post-DMCA world.

The Court needs to hear from a new type of disaffected plaintiff. A past history of recent litigation under the DMCA shows that the major plaintiffs in the litigation to this point have been entertainment producers.

E. Whom to Target in a Litigation Campaign[33]

A litigation campaign with deep pockets on both sides is likely to be fought all the way up to the highest court, therefore litigants must tailor their strategy with that end goal in mind. They must develop strategies designed to appeal specifically to the U.S. Supreme Court Justices.

There must be at least one Justice who is champing at the bit for the opportunity to write the definitive case setting forth the modern U.S. Supreme Court stance on the constitutionality of the federal intellectual property scheme. American Jurisprudence teaches us that no right is absolute and that there are constitutional limits to all areas of the law. Striking down the DMCA provides a unique opportunity for a Justice to make his or her mark by defining exactly what those limits are in this area of the law, and to be the first justice in over 125 years to write an opinion placing constitutional limits in this area of the law. A good place to look for that Justice is at recent U.S. Supreme Court copyright decisions. Arguments should be tailored to specific Justices likely to be sympathetic to the notion that the DMCA is unconstitutional in its overbreadth. Dissenting Justices’ opinions provide good insight into the types of challenges to laws that were discussed during consideration of the case. A good place to look is at the relevant recent case law, such as the dissents of Justices Stevens and Breyer in Eldred v. Ashcroft.[34]

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