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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, 01:57:58 pm »


III. Current Status of the Law

A. The DMCA Threatens to Overturn Well Established Case Law in Sony

If the recent trend of interpreting cases under the DMCA in favor of entertainment producers continues, this may serve to eventually overturn [p106] the landmark ruling in Sony Corp. v. Universal City Studios, Inc. [35] Sony dealt with issues of fair use copying of home television broadcasts onto video tape cassettes. [36] Sony specifically addressed the technological means to engage in this fair use. [37] This technology manifested itself in the form of a video tape recorder (VTR),[38] more commonly referred to today as a VCR. The Sony opinion states that it is only effective in the absence of legislative intent with respect to copying means. “In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests.”[39]

With the words “in a case like this, in which Congress has not plainly marked our course,”[40] the Sony Court left the door open for Congress to legislatively overrule it. The DMCA is a “plain marking.” On its face, the DMCA seems to specifically address Sony since it addresses the copying capabilities of “analog videocassette recorders,” [41] mandating that Macrovision® [42] copy protection be integrated into them to deal with illegal copying issues, including those relating to digital TV broadcasts.

Even without the above exception, the DMCA is a legislative act, and should theoretically trump the ruling in Sony. This is especially true since the DMCA was drafted well after the Sony ruling, and thus likely contemplated Sony while it was being drafted. The Sony opinion does not claim that its fair use exceptions are constitutionally protected, therefore it would seem that they can be legislated around.

Sony set up certain fair use exceptions which the entertainment industry likely viewed as inconvenient loopholes. The DMCA closes up those loopholes while paying lip service to the fair use relief that was provided by Sony. Sony carved out certain exceptions, or loopholes, for fair use, and the DMCA came along and seems to have carved out Sony entirely. Sony’s specific elaboration of each exception under the fair use doctrine provided a blueprint to Congress to eliminate those exceptions when they drafted the DMCA. As a result, today’s courts will be hard pressed to claim Congress has not expressly spoken on this issue. [p107]

1. First Exception: Congressional Intent did not Favor Banning Copying

The Sony Court discerned when Congress addressed the issue of new technology in existence at the time the Sound Recording Act of 1971, [43] Congress still did not choose to outlaw home copying. Congress had addressed the issue of piracy with the then-existing technology, and did not proscribe home audio or videotaping of broadcasts.

The DMCA can be read to close this loophole in that the DMCA was specifically passed to prevent digital piracy and Congress explicitly chose to proscribe entire types of technology. Congress had a chance to speak on the issue of piracy by new technology, and unlike the previous Act addressed in Sony, Congress was not silent on this point.[44]

The Court noted in Sony: “The judiciary’s reluctance to expand the protections afforded by the copyright without explicit legislative intent is a recurring theme.”[45] With the DMCA there is no murky issue of trying to discern congressional intent. Congressional intent is quite clear in the DMCA. However, even the U.S. Supreme Court in Sony could not legally grant Congress license to pass an unconstitutional statute.

2. The Key Sony Exception: Substantial Non-Infringing Use

The Sony Court then went on to establish the key part of its ruling, which was as long as a piece of technology had a “substantial non-infringing use,” [46] the technology would not be considered a technology that made the manufacturer a contributory infringer. [47] Allowing this loophole for types of technology protected the ability of manufacturers to scientifically develop new technology that could increase fair use.

The DMCA closes that loophole by eliminating any trafficking and copying technology that is primarily designed to circumvent a copy protection control for “a” protected work. The DMCA seems to imply that, in theory, since the technological protection’s only true purpose is to stop infringement, technology designed to circumvent that infringement protection could not have a substantial non-infringing purpose. The DMCA makes no exception with respect to whether the technology would be put to substantially, or even exclusively, non-infringing uses. This particular loophole closing seems at odds with the rest of the copyright scheme. Even if someone were to traffic in a technology that was careful [p108] not to infringe a copyright it would still be illegal under the copyright laws.

Therefore you can be found not liable of infringement under Sony because there is no copyright infringement by your product, but trafficking it is still illegal. The Sony Court stated that they need not look at “all of an article’s [technology’s]” [48] uses. With the DMCA, they need not even look at a single one.

The Sony Court decidedly points out that the Copyright Act itself (pre-DMCA) still gives the copyright owner an “arsenal of remedies” against infringers, such as injunctive relief and destruction of infringing copies. [49] The DMCA is a knee jerk reaction that looks right past the available arsenal.

3. Timeshifting

Sony carves out an exception for the timeshifting of TV broadcasts. [50] The DMCA even seems to eliminate this. The DMCA addresses copy controls for broadcast TV and only proscribes two types of copy control. However, the entertainment industry can still use other types of controls which can eliminate any timeshifting at all. While the DMCA does not prohibit timeshifting itself, it does proscribe circumventing all but two copy controls that would prevent timeshifting of a protected broadcast.

There are some dangers in relying on Sony’s basic principles to fight the DMCA. Not only did Sony leave the door open for later legislative direction in this area, but Sony, in dicta, also states “[r]epeatedly as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”[51] This unequivocally implies that the Court was willing to defer to Congress with regards to restricting new technologies. How the current Justices would address that point is uncertain.

B. Universal City Studios v. Corley

In Universal City Studios v. Corley,[52] a suit brought by eight motion picture studios (and not even one private citizen copyright holder), plaintiffs sued a consumer who cracked the Content Scrambling System for DVDs and reverse engineered a program that would allow users to play [p109] DVDs on systems using the Linux operating system. The Defendant argued that he was specifically exempted by the DMCA exception that allows reverse engineering for computer system interoperability. However the Second Circuit held that this defense was not good enough because the same technology could be used by a non-Linux user to circumvent technological copyright protections. The technology had the possibility of being misused with respect to a protected work, so the circuit court held that the technology was proscribed.[53]

The Corley court’s bottom line was, if technology falls under a DMCA exception and has the added effect of circumventing a technological measure, then two provisions of the DMCA are in conflict, and preventing the violation under § 1201(a) takes priority. [54] If the possibility of a violation always trumps an exception, then in reality this nullifies the purpose of the exception existing in the first place. Exceptions in statutes only exist for what would otherwise be a violation of the statute. There should not be any balancing test engaged in by the courts as to whether the exception is justified. Clearly, exceptions are presumptively justified in statutes, or Congress would not insert them in the first place.

The Second Circuit construed the DMCA in a manner consistent with the “Pandora’s Box thinking” that led to the DMCA in the first place. The Court seemed to want to close the box so quickly they even prevented Corley from telling other people how to circumvent, as if knowledge is the word that cannot be spoken, like Rumplestiltskin’s name.

Judicial interpretation of this type creates a minimum burden of proof on the part of the entertainment industry when bringing an action under the DMCA. All substantial uses of the technology, even non-infringing, no matter how beneficial to society, can be defeated if there is but one copyrighted work being protected by the measure being circumvented.

C. 321 Studios v. Metro Goldwyn Mayer Studios, Inc.

In 321 Studios v. Metro Goldwyn Mayer Studios, Inc., [55] a software manufacturer of a product called DVD X-Copy sued for a declaratory judgment stating that its product did not violate the DMCA.[56] The district court in this case held that the product violated the DMCA.[57] Judge Illston quoted the DMCA, specifically 17 U.S.C. § 1201(a)(2), and emphasized the word “part.” In the district court’s estimation, this expansive reading [p110] meant, if a much larger piece of technology contains any aspect that may be designed for copy protection circumvention then the entire piece of technology is proscribed.[58]

The district court then went on to agree with the extreme reasoning from Corley, that somehow the right to copy does not guarantee the right to make a good quality copy.[59] The district court quoted that there was no right to make an “optimum copy.”[60] This reasoning, in and of itself, is flawed because nowhere in title 17 does it restrict fair use to lesser quality copies, nor logically would a consumer want to make an imperfect copy of their legitimately owned work.

The district court also stated that fair use was not hindered by the DMCA because non-digital copying means were available.[61] Here it seemed that the district court misunderstood the reality of non-digital copies. Not only are non-digital copies of DVDs not “optimum,” they are of extremely poor quality. The only non-digital methods available are either:

    1. Making a copy which is automatically altered by the automatic gain copy control on a DVDs which causes a constant brightness fluctuation in the picture, much like someone sitting in front of an older television, and moving the brightness knob from one extreme to the other non-stop: or
    2. Place a video camera in front of the TV and tape what is being broadcast. That creates a copy with a great deal of glare and distortion in the final product.

Another hypothetical option for fair use, according to the district court, was for consumers to acquire non-CSS encrypted DVD versions of a movie or non-digital versions of the work, such as videotapes.[62] However, the reality is that most new movies are not being released on VHS because DVD players enjoy a great deal of market penetration and DVD sales are in far higher demand. DVDs made up almost half of the eight hundred million units of entertainment recordings shipped last year alone.[63] The comment about consumers acquiring access to non-CSS encrypted DVDs of movies conjures up memories of the movie “My Cousin Vinny,” when [p111] Joe Pesci (Vinny) is questioning Maury Chaykin about his grits, which based on his testimony, must have cooked at an alarming rate.[64]

With all due respect to the 321 court, such unencrypted copies of DVDs are not available to the average consumer, nor should a consumer be required to pay for another copy of the work. How does that solution allow you to make a fair use copy of the work you have already bought? Fair use means that you have a right to make a copy of what you have already paid for, not the right to copy something else for a fee. In theory, there exists non-CSS encrypted versions, such as master recording copies, but they are held by the entertainment producers, and it is unlikely that they will provide a copy on request to everyone who wants to make a fair use copy.

Judge Illston, much like Judge Whyte in Remeirdes, and the Second Circuit reviewing Judge Whyte in Corley, seems to cling to the legal fiction that somehow the DMCA struck a balance with the public by protecting fair use.[65]

D. Eldred v. Ashcroft

On January 15, 2003, the U.S. Supreme Court decided the case of Eldred v. Ashcroft,[66] which addressed the Bono Amendment to title 17, also known as the 1998 Copyright Term Extension Act (CTEA), which extended by twenty years copyright terms for existing copyrights. Opponents attacked the amendment on the grounds it was unconstitutional because it exceeded Congress’s authority under the limited times provision of Article I, § 8 of the U.S. Constitution. This case, the first major copyright case heard by the U.S. Supreme Court since the enactment of the DMCA, shed light on how the high court might interpret the fair use issue in the post DMCA world. In Eldred, the high court deferred to recent legislative changes to the scheme of copyright law specifically designed to address the changing technologies at play. Justice Ginsburg writing for a 7-2 majority stated:

    In addition to international concerns, Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25–26, 33, and nn. 23 and 24,14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their [p112] works, id., at 34–37; see H. R. Rep. No. 105–452, p. 4 (1998) (term extension “provide(s) copyright owners generally with the incentive to restore older works and further disseminate them to the public”). In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess Congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA which continues the unbroken Congressional practice of treating future and existing copyrights in parity for term extension purposes is an impermissible exercise of Congress’ power under the Copyright Clause.[67]

1. Justice Stevens’s Dissent

Justices Stevens and Breyer dissented.[68] Justice Stevens dissented on the grounds that Congress could not create a statute giving creators a greater right without giving something back to the public in exchange. [69] He further stated that copyright fair use has always been a balancing between competing private and public interests. [70] Stevens believed, in the case of the CTEA (and the DMCA), more weight was given to the private side without giving something of equal value to the public in return to maintain the balance. Justice Stevens’s dissent quoted Graham v. John Deere[71] for the principle stating Congress may not grant patents which would take away creative material properly in the public domain. As patents and copyrights share their genesis in the same constitutional clause, this reasoning should apply to copyright as well, and thus, the DMCA would be unconstitutional under this reasoning, as it restricts copy of public domain works.

Justice Stevens’s reasoning should be considered for any litigation campaign because the majority does not disagree with his general statements about intellectual property law, so much as they simply do not believe that the situation Stevens decries occurred in Eldred. The majority, inter quoted from Graham v. John Deere.

2. Justice Breyer’s Dissent

Justice Breyer set forth a blueprint for what he would consider a proper litigation campaign to challenge the constitutionality of a copyright statute:

    [p113] Thus, I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective. Where, after examination of the statute, it becomes difficult, if not impossible, even to dispute these characterizations, Congress’ “choice is clearly wrong.” Helvering v. Davis, 301 U.S. 619, 640 (1937).[72]

He felt that in the context of the DMCA, movie studios would seem hard pressed to explain any public benefits of the DMCA, and that the balance is not heavily shifted in favor of private interests.[73] Locking up fair use runs afoul of the second prong of his test. Taking away all copying means for a medium does not seem to serve the purposes of the clause.

E. Dastar Corp. v. Twentieth Century Fox Film

Some hope can be found in the U.S. Supreme Court’s holding in the recent Dastar Corp. v. Twentieth Century Fox Film[74] decision. In Dastar, the Court addressed the issue of what is the legal effect of using one intellectual property statute to prevent copying of a work, which has passed into the public domain pursuant to another statute, and a copy is made? [75] A unanimous Court stated, “[a] statutory interpretation that renders another statute superfluous is of course to be avoided.” [76] In other words, if copying is allowed under one statute, another statute cannot be used to prevent the logical application of the first statute. This case seems to bolster the idea that the sections of the DMCA that prevent fair use copying and the copying of public domain works are working to render §§ 106 and 107 superfluous.

F. RIAA v. Diamond Multimedia Systems Inc.[77]

In Diamond,[78] the Recording Industry Association of America (RIAA) sued for a preliminary injunction to enjoin sales of the Diamond Rio MP3 [p114] player on the grounds that sale of the device was in violation of the Audio Home Recording Act of 1992 (AHRA), [79] because the player did not use Serial Copyright Management Technology. The trial court found in favor of Diamond on the grounds that the RIAA was unlikely to prove likelihood of success on the merits in the underlying action.[80] This ruling was upheld on appeal. [81] The Ninth Circuit stated that the player was not a digital recording device within the meaning of the statute. [82] The devices proscribed by the statute were devices that could copy transmissions to multiple copies in a tangible medium form (e.g., a digital audio cassette).[83] The circuit court further held the AHRA did not apply because, as defined under the statute the player did not record from digital music recordings or transmissions. [84] The circuit court also focused on exceptions to the definitions that expressly named computer hard drives, [85] which in that case was where the player copied music from.[86] Since the hard drives were not covered under the AHRA, copies from them were not within the jurisdiction of the statute either. The circuit court also went on to note that the purpose of the AHRA was “to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private noncommercial use.”[87]

This case sets precedent for the defense of “Space Shifting” [88] as a fair use similar to timeshifting from Sony. Here, the consumer has a fair right use to make a copy of recordings that did not come from transmissions, but are from works of which the consumer has a non-infringing copy.

G. Lexmark v. Static Control[89]

Lexmark v. Static Control, however, shows that many (bad faith) hardware manufacturers may get more economic benefit out of the abuse of the DMCA than they lose from it. This case seemed closer to the lines [p115] of the prophesized showdown between the deep pockets of the hardware and software industry versus the entertainment industry, except the entertainment industry was not a party to this action.

In this case, Lexmark,[90] a manufacturer of computer printers and computer printer cartridges, sued Static Control, an independent reconditioner of printer cartridges, for alleged infringement of Lexmark’s copyrights. [91] In addition, Lexmark sued for the DMCA violations of circumvention of Lexmark’s access and copying control measures to protect their copyrighted material.[92]

The copyrighted expression at issue is a very small amount of computer code written on a small computer chip that resides within the Lexmark chip. [93] The program at issue was an access control used to facilitate a “handshake”[94] between the printer cartridge and the printer itself. This program served little to no purpose, other than to let the printer know that it was using a Lexmark branded cartridge and to prevent the consumer from using a competitor’s cartridge. The program that performed the handshake between the printer and the cartridge was nothing more than a simple linear equation.[95] When the cartridge is used up its chip burns itself out to prevent the cartridge from being refilled and reused.

Static Control is in the business of reconditioning printer cartridges and selling them at a lower price than the original equipment manufacturer. They are a direct competitor of Lexmark in cartridge sales. They took apart and reverse engineered Lexmark chips to be able to copy the handshake technology. They then copied the tiny program and placed it on a new chip on the refilled and reconditioned cartridge. They then sold their reconditioned cartridges with a chip that circumvented the unnecessary access control on the chip. Lexmark sued Static Control for a preliminary injunction to stop the sales of those cartridges and prevailed.[96] The Sixth Circuit vacated the injunction and remanded the case to the district court.[97]

Prior to the Sixth Circuit’s ruling, Lexmark succeeded in using the DMCA to engage in what would otherwise be an illegal taking of goods under the antitrust laws, specifically section 3 of the Clayton Act.[98] This [p116] is copyright misuse and feels like nothing more than the copyright equivalent of Morton Salt.[99]

In theory, this line of reasoning could be used to force consumers to buy all sorts of tied branded products. A Gateway® computer system can be designed so that consumers need to buy a Gateway monitor and Gateway printer because they are the only ones who will handshake with the Gateway computer to allow you to see the small portion of your computer (outside of your operating system and other software) that is Gateway’s expression in the operation of your computer. Consumers would be forced to buy the whole package. In a non-computer context, it is akin to a consumer buying a Sony TV and, if they want to watch DVDs, having to buy a Sony DVD player because only they will talk to each other.

If the Static Control injunction stands on any appeal to the U.S. Supreme Court, it will serve as a blow to competition in many fields. Since competition leads to innovation, this means if the injunction were ultimately upheld on appeal, the DMCA will cut a wide swath across many industries, hindering innovation in them. This case highlights how the DMCA can be used and abused beyond its original intent. The DMCA will not only eviscerate fair use, but antitrust concerns as well.

By allowing the DMCA to be used to establish a trust in what would otherwise be technology that would not be protected from competition under the intellectual property laws, Congress has allowed individuals and companies acting in bad faith to restrain the ability of competitors to sell competing technologies. Competition drives competitors to offer better products at lower prices. This leads to innovation so that one competitor can outshine the other. This is the purpose of the antitrust laws. Without the right to compete, no one will invest money to make a better product than the original. Without competition, the original becomes the only source, and there is no need to innovate because it dominates that market.

The DMCA provides for proscribing the selling of a better, yet similar, product if the bad faith competitor can somehow tie a copyright purpose into the original product, even when such copyright purpose is not needed.

H. Relevant Legislative History

1. The Senate Report

The committee reports on the DMCA in both the House and Senate help provide insight into how the DMCA is overbroad, even in terms of its [p117] stated purpose. In the Senate Report, the Senate stated that this Act’s independent purpose, and other purpose of implementing terms of the WIPO agreement, was to address the serious problem of mass infringement that could be perpetrated by mass distribution of infringing copies across the Internet and other high-speed networks. The Senate stated:

    Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously, copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy. Legislation implementing the treaties provides this protection and creates the legal platform for launching the global digital on-line marketplace for copyrighted works. It will facilitate making available quickly and conveniently via the Internet the movies, music, software, and literary works that are the fruit of American creative genius. It will also encourage the continued growth of the existing off-line global marketplace for copyrighted works in digital format by setting strong international copyright standards.[100]

Yet the DMCA, on its face, does not really speak to preventing copying or distribution at the network level. In fact, § 1201 is silent as to copying circumvention or access in any network or Internet context.[101] It wholesale bans all copying that circumvents access or copy control technology regardless of whether or not the copies are ever distributed via a high-speed network, let alone copied with that intent to begin with. The Act is clearly broader than its stated purpose. The Act burdens more copying than that which the Senate felt was at issue for serious infringement.

Furthermore, this original “Internet” theme is repeated in the committee report with regard to the act’s implementation of the WIPO treaty:

    The WIPO treaties contain many important provisions. For example, the Copyright Treaty contains significant provisions such as: (1) explicit recognition that computer programs are covered by the Berne Convention; (2) recognition of a broad right of public distribution; (3) recognition of a broad right of communication to the public that includes the Internet; (4) an official statement that interprets the existing reproduction right of the Berne Convention [p118] to “fully apply in the digital environment”; (5) an obligation to provide “legal protection and effective legal remedies” against circumventing technological measures, e.g. encryption and password protection, that are used by copyright owners to protect their works from piracy; and (6) an obligation to provide “adequate and effective legal remedies” to preserve the integrity of “rights management information.” The Performances and Phonograms Treaty recognizes certain rights of performers over their performances and basically gives the copyright owners of sound recordings the same protection for their works as exist in the Berne Convention for other works.[102]

Piracy is, by its very nature, infringement. Black’s Law Dictionary discusses “piracy”[103] in the copyright context: “The term is also applied to the illegal reprinting or reproduction of copyrighted matter or to unlawful plagiarism from it; and, similarly, to the unlawful reproduction or distribution of property protected by patent and trademark laws. See also Infringement; Plagiarism.”[104] Since anti-circumvention was not illegal in the United States at the time of WIPO, how could it fall under the aegis of “piracy.”

This Senate record will allow a reviewing court to ask the following rhetorical questions during a constitutional challenge of the DMCA: Why is the law drafted in a way to prevent more than piracy, if stopping piracy was all that was required by statute? While the DMCA makes circumvention illegal, and therefore after the DMCA, circumventing those copying measures would now qualify as piracy, piracy could not have meant that prior to the DMCA. So, how could the Act have been directed at a definition of piracy that did not exist when the word was negotiated for in the WIPO treaty?

The Act states that it wants to prevent “piracy,” both as general principle and to comply with WIPO, but the Act is not crafted in a way directed to piracy as it was understood to be defined at the time the DMCA was enacted. [105] Rather, the Act broadly prevents whole classes of copying. In fact, the word piracy is conspicuously absent from the statute. If the purpose was to curtail Internet piracy, then the law is overbroad. [p119]

2. The House Report

A quoted part of the House report that arises in many of the leading cases on the DMCA is: “The act of neutralizing a technological protection measure by a copyright holder to control access to the work is the electronically equivalent of entering unlawfully inside a locked room with the goal to obtain a copy of the book.” [106] While this analogy may be on point for circumvention when it is used to infringe, this analogy falls short of the mark with regard to circumvention to make a fair use copy. Fair use, by its very nature, means that no one is entering unlawfully. To use a more appropriate analogy, the act of circumventing a copy or access control for a fair use is like removing a padlock that a private citizen has arbitrarily or capriciously put on the entrance to a public park.

In mid September 1996, the House Committee on the Judiciary held hearings on what would become the DMCA and heard from twenty-three nongovernmental witnesses, [107] fifteen of whom had interests aligned with the entertainment industry’s desire to enact §§ 1201(a) and 1201(b). [108] While the House Committee heard from one witness, Christopher Byrne, Director of Intellectual Property for Silicon Graphics, Inc., as to how the Act would hinder innovation in the industry, both parts of the House report are conspicuously silent as to whether the Act will hinder or foster innovation.

Interestingly, the Senate report speaks briefly to innovation, but only in the context that the DMCA will likely foster innovation in reverse engineering technology and security technology.[109] The report is deafly silent, however, as to the Act’s hindrance of other innovation.

IV. The DMCA is Beating Down your Door

The DMCA’s effects will soon be felt in the home, because within a few years time, the DMCA can soon be used to prevent the home recording of television programming. High Definition Television (HDTV), a digital broadcast signal, is a reality in many markets. Gone are the analog television signals addressed in Sony. Now we are dealing with digital signals being brought into the home, and digital is expressly covered under the DMCA. The American populace does not even have the option of clinging to the old technology. Congress is forcing HDTV on them. Even [p120] broadcast antenna TV will have to switch to HDTV format before the decade’s end. We are also seeing the introduction of home digital recorders such as digital VHS, DVD-R, and TiVo, allowing the user to make perfect digital copies of broadcasts. Once HDTV is in a household with a digital recorder, home consumers will be able to make perfect copies of digital broadcasts. This is problematic because people will want to continue to record television shows and will do so with their digital recorders. However, digital broadcasts are covered under the DMCA, and it can be interpreted to expressly prohibit the timeshifted home copying of digital TV broadcasts, even when entirely for private use. This copying is what the entertainment producers fear, and the DMCA is their best weapon to stop that.

The DMCA allows entertainment producers to stop this copying in a variety of ways. Section 1201(k)(2) of the DMCA only prevents two types of copy control from being applied to broadcast television signals, automatic gain control and colorstripe copy control. [110] No other types of copy or access control are prohibited by statute, and under the statutory construction rule of the maxim expressio unius est exclusio alterius, the expression of one thing is the exclusion of the other, aids in determining legislative intent. [111] This means that a court would have to read into the DMCA that, since no other copy controls are proscribed, then the right to use other types of copy control is authorized by Congress for broadcast digital TV.

Other types of controls that could be used would embed the broadcast signal with time expiration, so whatever you copy to a digital recorder expires and erases from the recorder after a certain amount of time. The controls could also embed code that electronically locks out the output jacks on the digital recorder, so the TV broadcast can never be memorialized in another format.

An in-depth discussion of the types of technology (that do not exist yet) that can be used simply requires using one’s imagination. I doubt that entertainment producers will have much trouble coming up with a system to protect their programs. Using the DMCA to stop any copying would not even be that difficult. All the networks and studios have to do is place any kind of copying protection on their HDTV broadcasts. The DMCA does not define how good the protection must be, or that it even be effective, just that there be some means to safeguard from copying.

[p121] How much of a reality is that scenario? We are currently seeing a surge in DVD sales, including box sets of popular television shows, both in rerun syndication as well as shows that are still currently in first-run production (e.g. The Simpsons, The Sopranos, Friends, and even American Idol). [112] If home consumers can make digital copies of these shows when they air, there would be no need to ever buy these box sets after the fact. Therefore, there is a large incentive for the recording industry to take steps to make sure the average consumer cannot make digital copies of the shows at home, thus nullifying the need to ever buy the box set. This scenario could happen, as there is more money involved in the sale of prerecorded media than in the sale of the home recording equipment.

Even if the DMCA does not trump Sony, as opponents of the DMCA advocate, it can be argued that Sony would still have little effect on the DMCA, as the DMCA encompasses digital technology used for recording purposes. Sony would still be good case law, but only with respect to VCRs. That would not matter since the industry is not concerned about non-perfect analog copies. The question of whether or not the DMCA will prevent VCR copying may very well be academic because, in five to ten years, most VHS VCRs will likely become obsolete. Already, VHS VCR sales are dwindling.

While it may seem like a stretch to say that courts would interpret the DMCA to ban all home video recording in the wake of HDTV, it is not unrealistic to presume that the entertainment industry will present that case, or that current law would prevent a court from ruling in their favor. The DMCA is currently being used by parties in ways the DMCA never intended.[113]

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