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

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« on: September 19, 2010, 02:02:49 pm »


VII. Fair Use is Quickly Being Eradicated by the DMCA

A. The DMCA Effectively Eradicates Fair Use

There are two types of public domain at issue. There is the period at which a work fully passes into the public domain, and the more esoteric, less quantifiable public domain that is composed of fair use.

The legal questions surrounding fair use pit the copyright holder against individual consumers. This is only made more evident by recent legislation contemporaneous with the DMCA, such as the Bono Amendment, shifting the balance of power back to the copyright holder.[151] There is no doubt there is a general legislative intent of moving fair use away from the consumer.

Fair use revolves around the notion that some protection must be afforded to the public for acts of copying before the work finally enters the public domain. [152] It is an extension of the basic intellectual property law precept that, in order to encourage creativity, we grant creators a limited monopoly on their intellectual property in exchange for disclosing that creative work to the public[153] with the understanding that, after an appropriate time, the intellectual property will go into the public domain permanently.

While fair use is a concept that is enumerated in § 107 of title 17, its numbered provisions do little to clearly specify examples of exactly what constitutes fair use. [154] Rather, § 107 offers a four-prong test for determining what uses are fair use, placing the determination in the hands of the courts. [155] Interpretation of what is fair use has developed almost entirely under the common law on a case-by-case basis. While case law prior to the enactment of the DMCA seemed to strike an equitable balance between rights holders and individual consumer on the issue of fair use, recent case law seems to indicate a shift away from the individual consumer.

[p139] While judges in cases ruling on the DMCA tend to justify the locking up of a work in the public domain, this does not address the fact that the technology that would allow copying of the work is still illegal to traffic. Moreover, it does not even address whether the technological locking-up of a public domain item is improper. What individual consumer is going to take on a wealthy movie studio to argue that specific works are in the public domain and should be unlocked when the DMCA does not provide monetary relief for that scenario? There is no provision in the DMCA where the consumer could get attorney’s fees for such a legal challenge. The only relief the courts would have jurisdiction to grant, would be to make the specific entertainment producer turn over an unlocked copy of the work. What litigant would fund expensive litigation for such a monetarily insignificant award?

This would not help any issues of fair use. For the most part, fair use is asserted as a defense to infringement. Even if one could sue for the right to a fair use copy, do we want litigants going to court to justify each and every time they need to make a fair use copy? How would the court force a studio to grant them limited copying access if a fair use need was found? The better answer is to relax the technological guards in the first place.

B. Fair Use is a Legal Fiction

The DMCA, in effect, has been aimed at cutting back on a type of copying that was previously fair use. The legislation, in effect, has limited previous fair use, even though the act on its face says that it should not be construed to limit or abrogate fair use.[156] However, it is a legal fiction to say that the Act does not affect or impinge upon fair use. While the Act does not proscribe the use of copies, it does proscribe, the means to make the copies. The ends are not proscribed but that is irrelevant since the means are. It is akin to passing an “Entry into the Public Lakes Act,” declaring it is legal to use public waterways, but that the entrance into the water itself is illegal.

Since trespass against a copyright only exists in terms of infringement, it is antithetical to say that a device that is non-infringing of the copyright runs afoul of copyright law. You can only infringe a copyright. You can only infringe a patent. Prior to the DMCA, this was the case. The DMCA adds a new type of violation, however, without any actual infringement.

The most obvious type of copyright infringement occurs when a member of the public intends to and copies the work knowingly in violation of the previously established fair use doctrine. These are the users intending to infringe to make a profit.

[p140] The DMCA has created a second type of violator or pseudo-infringer under title 17. These type of violators tend to be professionals and corporate entities who make a product that could be used to infringe, but is also commercially used for legitimate, non-infringing purposes. A prime example is the DeCSS software and related codecs that allow Linux users to utilize DVD-ROM players on personal computers that can also be used to wholesale copy DVD movies. [157] The rabidly litigious entertainment industry has even gone after the publication of articles that address weaknesses in current copying safeguards, claiming that such publication is a violation of the DMCA in that it would give a savvy reader the ability to access means to circumvent technological safeguards protected by the DMCA. The RIAA even threatened to sue a Princeton student who did not even develop or traffic in a technology primarily designed to circumvent a technology.[158] He simply published the fact that there was a flaw, or loophole in an existing piece of technology, namely that one could hold down the shift key in windows to circumvent access controls. He did not develop the technology and it was pre-existing. There was no credible DMCA violation, but a lawsuit was threatened.[159] As recently as late April of this year, the RIAA filed a new lawsuit against 477 computer users.[160]

In theory, the next few sentences may subject the publication of this Article to a DMCA lawsuit. At some point, many of us have visited a web site where we could not right-click on a scanned picture, or other graphic, in order to access the menu to copy the picture or graphic to our hard drive.[161] The site owner uses technology to prevent the browser software from copying. Right-clicking on the desired picture prompts a pop-up window warning message along the lines of “sorry you don’t have access to that.” This gives you a few options. The first is to simply select “view source” from a pull-down menu and find within the HTML code the file location of the picture, text, or sound that you want to copy.

Another example of easily circumventable protection in popular software is the built in protection in Adobe Acrobat Reader. The author of an Adobe Acrobat file can select what sort of access and copying they want to place on their document, including preventing the viewer from [p141] cutting and pasting text from the document, as well as preventing the reader from being able to print the document. However, the tools for bypassing being locked out of printing the document are available to most consumers. There exists, within more than the past few builds of Microsoft Windows, a way to circumvent the Adobe copyright protections. [162] All you have to do is have the document visible within an active window and press “Control-Alt-Print Screen” to copy the entire active window as a picture, which you can then paste into a graphic program such as Microsoft Paint. You could also simply hit the “Print Screen” button to get a snapshot of the entire contents of the screen as it is visible to you (including the windows bar at the bottom), and paste this into a graphic program as described above. While this technique could be used to copy an entire paper, it would not be worth the time. You are not copying the text like you would be doing in a word processing program. It is more akin to someone using a camera, taking a photo of every page of a book, and then stapling the photos together to avoid buying the book. In theory, you could use the technique to make screen captures of DVD movies you are watching on a computer. If you were fast enough to make copies of each of the thirty frames per second in a movie, you could paste them together into a slide show and watch a really mediocre version of the film.[163]

However, under the theory advanced by the RIAA in the Princeton situation, and Corley, the very fact that I have made this knowledge (albeit, unlikely to really affect the market) available, as “part”[164] of my Article, could be problematic. This has a chilling effect on free speech. While there are obviously many primary infringers who cloak themselves in the guise of these unintentional secondary type of violators, they are not a significant part of the landscape at issue in copyright, and are not therefore, among the focus of this Article.

With the way the DMCA stands on its face, the entertainment industry would have to do very little to threaten innocent home users with liability for infringement under the DMCA, as the home entertainment industry continues its progression towards the full integration of digital media. [p142]

C. The DMCA can be Abused by Copyright Holders Who Use Technology to Prevent Copying Access to Works Just Before They Enter the Public Domain

A fair use of any copyrighted work is theoretically always available to the public as a legal right. The DMCA, by eliminating the means to make a copy of a work, takes this right away. If the means to make any copy are proscribed, then there is no way to make a fair use copy. Thus, material that is in the public domain is taken away.

The DMCA makes no attempt to strike a perfect balance to protect what is in the public domain. It indiscriminately takes it out of the public domain and returns all realistic rights and access to the work back to the private copyright owners. This is at odds with traditional notions of copyright. “Copyright owners, however, have never been entitled to control all uses of their works. Instead, Congress has accorded copyright owners some exclusive rights, and reserved other rights to the general public.”[165]

D. The DMCA Allows Copyright Holders to Dictate What the Fair Use of Their Product Will Be

While this is the reality of the situation, it is antithetical to the notion of fair use. Fair use was born out of the reality that copyright holders did not want their works copied at all. The very nature of a fair use suit is that a copyright holder sues a fair user because the holder does not like the copying of the holder’s work. For the most part, if left to the copyright holder, the holder would never allow any fair use copying.

Eradicating fair use, essentially makes parody, satire, and sampling nonexistent. Those who wage litigation campaigns should focus on the fact that the U.S. Supreme Court will likely be displeased that this new unconstitutional law has taken all of the teeth out of their landmark holding in Campbell v. Acuff Rose Music. [166] Once all music is locked up in digital format, the entertainment producers can use access and copy controls to prevent any sampling. The controls block all copying. The controls are neutral as to the amount you may want to take.[167] If you cannot copy, you cannot make a quality sampling of the music, and sampling has little to no effect if you have to use a significantly degraded copy of the music.

What is even worse, is that the DMCA allows some copyright holders to prevent other copyright holders from granting access to their works. [p143] Even though § 106 grants copyright holders six distinctive copyrights, [168] the DMCA allows other copyright owners to prevent a copyright owner from allowing others to copy his work. In other words, you may want to grant access to your work, but if the means you provide someone to copy your work could be used to copy someone else’s protected work, you cannot grant those means. The Sony Court recognized that there were a substantial number of non-greedy, even neighborly, benevolent copyright holders[169] who wanted their works to be available to be copied and that a holding preventing their right to authorize copying would violate their copyright rights.[170] The DMCA has made such benevolence irrelevant.

E. The DMCA Makes No Sort of Mr. Rogers Exception

The DMCA allows some copyright owners to use their rights under § 1201 to stymie the rights of others. They are able to dictate to that copyright owner when they can grant access to copying and when they cannot. For example, if Steven Spielberg were to suddenly decide that he was going to contact the copyright office and let “Saving Private Ryan” [171] pass into the public domain, then even the holders of a copyright, who in the end may only own a copy of their movie in a format that the studio recorded it in, would be blocked from the access to make copies of their own work. Spielberg would be precluded from buying technology that would allow him to copy a DVD of his own movie, in which he owns the [p144] copyright. In theory, this gives a great deal of power to smaller recording studios that smaller bands pay to make a master tape for them. [172] The recording studio can lock up that master with technological protections, forcing the band to work with them indefinitely. The band cannot even take their own master tape somewhere else to get it copied, because they would be violating the DMCA in copying their own work. The DMCA simply eviscerates the rights of copyright holders under § 106.[173]

Currently, David Bowie, who owns the copyrights in his music, is offering software directly to the public that would allow consumers to mix and alter his music. [174] He has done this to foster creativity and development of the arts. Even though Bowie is providing it for a legitimate purpose in accordance with his own copyright, if that software can circumvent protection in someone else’s work, there will be a problem under the DMCA.

The DMCA, on its face, stifles fair use. By prohibiting the sale of technology that can safeguard a technological measure, the DMCA explicitly prohibits trafficking in technology that controls access to protected and unprotected works because the DMCA only speaks to the technology itself.[175] If the same type of technology is used to control access to a copyrighted work, as well as control access to a non-copyrighted work (which a member of the public has a right to copy in any way, shape, or form), then technology which allows the public to circumvent the protective measure is in violation of the DMCA.

If a protective measure, such as CSS for DVDs, currently affords protection to a new movie, like “Terminator 3,” which is still under copyright, and is the same technology used to protect the DVD content of a movie in the public domain, like Lumiere’s “Shot to the Moon,”[176] then the technology which allows a consumer to copy “Shot to the Moon” is illegal under the DMCA, because it allows the copying of protected movies. Even if that practice is questionable at the very least, there is a strong incentive for entertainment producers to be sure to re-record a work just prior to its passing into the public domain and use the latest copy and access controls on it.[177]

[p145] The primary purpose of the technology that a fair user utilizes need not even be to assist copying, just that the technology circumvents the technology used to protect a work. The DMCA allows the copyright owner to tell you how you are going to watch the work. It is quite the megalomaniacal statute.

F. The Commercially Significant Exception Rings Hollow

Section 1201(a)(2)(B) prohibits the sale or importation of technology that “has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title.”[178]

Considering that the protection is digital in nature, however, any circumvention will be digital as well. What are the odds that someone will find a piece of technology that performs some other commercially useful function, but for some reason, also has the added benefit of circumventing a technological protective measure? This is not like George Washington Carver tolling around in his lab, finding new uses for peanuts. No such item exists.

The only conceivable type of device that might work would be some sort of mass decryption machine that breaks down any encryption sequence. The only legitimate market for this, though, would seem to be people who enjoy cryptoquotes and such similar word games. The odds of such a piece of technology that could copy an entire DVD existing in another market seem slim.

This closes up the “otherwise substantially non-infringing use” loophole in that the infringement issue falls to the wayside as the issue becomes one of circumvention. [179] Even though the technology may have commercial significance, and the act of copying may be non-infringing from a fair use standpoint, the means of getting there, the circumvention itself, is proscribed. In this context, the DMCA still allows the ends, just not the means. In that sense, fair use starts to become meaningless.

While engineers in labs may have access to specialized equipment that has other uses, and may also circumvent some protection means, these tend to be expensive pieces of equipment that are not going to be trafficked to the average consumer. At this point, the best bet for finding a copying means would be to turn to the arcane arts, as the DMCA only prohibits technological means, not sorcerous ones. [p146]

VIII. Building the Perfect Litigant or the Search for the Holy Digital Grail

A litigation campaign to strike down the DMCA should be waged much in the same way that civil rights activists were finally able to get the U.S. Supreme Court to begin striking down discrimination laws by presenting the Court with a perfect litigant. In the case of Brown v. Board of Education,[180] the real parties at issue were a large class that the Court could not say no to, children.[181] In that case, the Court could not condone the overwhelming detrimental effects that would come about from denying an equal education to minority children.[182]

While a litigation campaign to strike down the DMCA will be hard pressed to find a plaintiff that can pull at the Court’s heart strings the same way that children can, a litigation campaign can learn from Brown that the plaintiffs in this case must unite and file a declaratory action together. [183] Then, they can show the Court how other substantial industries are being affected by the DMCA and its unconstitutionality.

The DMCA implicates many types of technology: HCCPs, hard drive back-up software, interoperability parts for high-end and low-end stereo and video equipment. Manufacturers of all of these types of technologies are potential litigants who could challenge the DMCA. The perfect litigants would be those whose technological innovations are hindered by the DMCA, and hardware manufacturers who want to ensure interoperability of parts, but cannot meet the 1201 (f) exception because their product is not primarily computer software.[184] Such litigants would include the manufacturers of MP3 players, and related video content mass storage device providers, and manufacturers, like Toshiba, who make the subcomponents of their units, namely small hard drives.

Manufacturers of technologies associated with hard drives should also join in as litigants. Data recovery and restoration is a growing industry. Even in the world of lawyers, and the development of electronic discovery, the ability to get a copy of an opposing party’s hard drive during document production can be invaluable. There are many software manufacturers who make products that allow the quick mirroring of the entire contents of a hard drive quickly and easily. These products work at a basic level by copying an entire hard drive bit by bit. In theory if a user has protected or [p147] encrypted files, and these copying technologies ignore and bypass those safeguards, the trafficking of that technology would be a DMCA violation. This violation would exist even though there is no intent whatsoever in that situation to copy the underlying source material to avoid paying for it or to infringe a copyright holder’s rights.

These hard drive copying technologies have substantial non-infringing uses. When consumers want to upgrade their computers, they often want to migrate their documents and multimedia files from the old unit to the new. However, certain legitimately downloaded files may be protected by digital rights management software that prevents the copying of the computer file. The copying and restoration technology can be used to retrieve files lost in the event of a system or hard drive crash, which is a common occurrence among personal computers. In all of those situations, the consumer is simply trying to make sure that they have continued access to a work that they have paid for and want to enjoy legitimately.

The best litigants whose technology is hindered by the DMCA are the manufacturers of HCCPs and the manufacturers who supply them with the component parts to make the units. HCCPs are simply the latest innovation in what has become a staple article of commerce over the last twenty-five years, [185] the portable personal music player.

In 1979, Sony developed the first Walkman, [186] a radio and tape player in one unit. [187] Since 1979, we have seen the improvement in the tape player, as well as the innovation of new technologies to this staple article. We have seen the introduction of the personal compact disc players in the late 1980s and their rise in the 1990s. MiniDisc technology developed in the mid 1990s, and today, we have HCCPs. Each unit’s format was an improvement over the last, in that it allowed the consumer to carry more music than the previous format.

An HCCP litigant should argue that they have invested a great deal of their money in developing technologies for this staple article of commerce. They could argue that any copying technology associated with the HCCP is designed to allow fair use copying by a consumer who simply wants to take the music they paid for and convert it into a portable format.

These same litigants should be able to provide proof that after the DMCA, they spent less money than before on R&D of their technology because of fear that they would spend too much money on a technology and subsequently find out it was proscribed under the DMCA. It would be important to have a device that had sufficient safeguards built into its [p148] technology to prevent rampant serial copying and distribution. Furthermore, the HCCP litigants should develop a variety of solutions allowing usage of their technology in its intended fair use purpose, while still preventing infringement. The more options they offer a court to prevent rampant infringement, the harder it will be for a court to rule against them. A variety of solutions are discussed in Part IX of this Article.

The adoption of standards for their software would allow copying to a PC and the HCCPs, but would do so in a format that prevented Internet distribution of the file. In the alternative, the format could use a basic encryption that locked the file so that it could only play on the consumer’s HCCPs. Another workable system would be some sort of plug-in component similar to a credit card, or USB thumb drive, that would identify and associate a particular user with his or her hardware. Consumers would have to use their access card, key, or code to sync up all of their devices. They would also pay a fee every time they added another device to the code.

The genius of current technology is that it is possible to use unique digital serial numbers that are encoded on the computer chips of all devices. This is how your cellular phone provider knows it is your phone accessing the network when you make a call. They maintain a database that says a specific serial number on a chip in your phone is assigned to you. Manufacturers can take advantage of that type or serial number system to develop a system that utilizes those unique numbers to make sure that a specific copy is limited to the unique consumer who owns the device, and cannot be unfairly distributed to anyone else.

The system they pick does not have to be perfect. Any of the foregoing systems should work. What is important is that the hardware manufacturer must step into court with copying technology that is well thought out in a technological way that balances fair use against rampant distribution. The manufacturer must show that there is no way to make their staple items work in a fair use manner. In other words, there is no way to transfer the entertainment data to a HCCP without circumvention.

That same manufacturer would be well-served to make a home non-portable unit that stored video and music files. The manufacturer would argue that the goal of science, and the development of the staple articles of home entertainment, has been to improve the product. For home entertainment, the progress has always been to make a better fidelity, higher capacity format.

The staple articles have also developed with an eye for allowing the consumer to fix his legitimately owned music in a medium that he prefers, such as mix tapes or CDs. Wholly proscribing any technology that serves that purpose discourages the natural progress of technology, with respect [p149] to those staple goods in this particular area of science and thus, is at cross purposes with the U.S. Constitution.

The DMCA unfairly pits copyright against patents, or technological innovation, and the U.S Constitution cannot abide by allowing one aspect of the Constitution to trample on another when there is no such need. However, innovation in science is not like innovation in entertainment. While entertainers may still be driven to create, and will create in the face of no protection for their work, the same cannot be said for technological innovation. While inventors may still have the drive to create, even in the face of the DMCA, it takes millions of dollars to bring most technology to bear. If the company funding the inventor feels that the DMCA increases its risk of having a product it cannot sell, then as risk increases, companies will simply invest less in that specific area of technology. Less investment in R&D means slower development of the technology.

The weaknesses in the entertainment producers’ case would pale in comparison to the strengths they enjoy. At best, they could argue that an unchecked system would allow consumers to copy their entertainment files to a computer where they could be used and shared by everyone. However, manufacturers who use a copying technology that relies on some sort of access code or hardware key on the consumer’s part, allows the file to go to a device that the consumer, and no one else, owns, and prevents widespread Internet distribution of the underlying content, would be able to argue that they are meeting the goals of the DMCA without eradicating fair use.

IX. Solutions

A. We Can Build a Better Box

The technology exists to solve the underlying problems and protect fair use. The bigger problem is the entertainment producers do not want the public to have that power. They want to control access to the ability to copy, so that the public always has to buy their copies from the entertainment producers. I will discuss below some possible solutions that can be incorporated into the DMCA, making sure that entertainment producers guarantee some real access to fair use, while at the same time protect their interests. [p150]

B. ROM vs. RAM

First off, there should be a switch to a RAM format. CDs and DVDs are currently released in a ROM format. ROM stands for “read only memory,” which means that no content can be written to the medium after it is initially recorded. An alternative to this is a “random access memory,” or RAM, format, which allows recording to the medium after the original recording is made. Instead of CD-ROMs and DVD-ROMs, the content would be released in CD-RAM and DVD-RAM. In a DVD context, the original movie would still be recorded on the DVD. Elsewhere on the DVD would be an access and copy control system that would allow a set number of copies, as well as a set number of partial copies. [188] Each time a copy is made, the copy control will update a section of the RAM medium to account for that copy. The technology could encode the copy so that only one copy could be made in the case of a partial copy or a mix DVD, so that you would not have to recreate a lot of work. Once the maximum number of copies is reached on the original no more copies could be made.

A system similar to this is in use currently by Apple Computer’s iTunes, which allows music to be downloaded on a pay-as-you-go system. [189] Strong copy controls are built into the downloaded file. Downloaded songs can be burned to a CD ten times, [190] and then no more.

RAM capability for CDs and DVDs currently exists in the CD-RW and DVD-RW formats. [191] In fact, RW technology has been around for years. This is likely the best solution because the technology exists today to make this happen. It should not be too difficult to implement a software control that would control the number of copies made. Similar DRM technology is being used now for computer files.

C. Clearinghouses and Fees

Another option is to set a statutory rate for making copies, akin to the statutory rate for radio play of music, and set up clearinghouses like ASCAP and BMI. The legitimate copy would still be locked up with access and copy controls. However, the copying technology could charge your account or credit card when you make the copy. Then, that same [p151] technology would contact the appropriate clearinghouse entity and, using the digital ID from what you are copying, get a pay-per-use authorized circumvention from the clearinghouse, which then allows you to make the copy. Finally, the recording technology system used pays the fee to the clearinghouse for what you have copied.

Another clearinghouse option is for the clearinghouses to maintain online servers of the works in various digital formats. The consumer would place their legitimate copy into their recorder. The digital ID from the legitimate copy would be verified and the clearinghouse copy would then send the copy to you for download.

Another option is to charge a fee on copying technology at the time of sale. This was done under the AHRA for the sale of DAT recorders. [192] Lastly, the clearinghouse could distribute the money in a manner akin to the way AHRA money is doled out.

D. Internet Copy Solutions

Since the purpose of the DMCA was to prevent mass network dissemination, copy and access controls could be tailored specifically to the Internet problem. Legislation could be put in place to watermark files that have digital rights management (DRM) features built in. The DRM could be designed to prevent the e-mailing, FTPing, peer-to-peering, or any other sharing of the files, without an explicit authorization or the payment of a fee.

Lastly, legislation could simply enforce stricter penalties for actual infringement. In theory, that should still serve as a deterrent. There are a variety of other options. There were options that were available to protect fair use when the DMCA was enacted. Luckily, they are still available. It is likely no coincidence that the entertainment industry pushed for a system like the DMCA, allowing for no copies.

Currently Congress is considering in committee H.R. 107, which in its current form would call the final version of this bill “The Digital Media Consumers’ Rights Act.” This bill proposes to amend, among other titles of the U.S. Code, title 17 to restore some degree of fair use. [193] Section 5 of the bill states:

    b) FAIR USE RESTORATION — Section 1201(c) of title 17, United States Code, is amended —
    (1) in paragraph (1), by inserting before the period at the end the following: “and it is not a violation of this section to circumvent a [p152] technological measure in connection with access to, or the use of, a work if such circumvention does not result in an infringement of the copyright in the work;” and
    (2) by adding at the end the following new paragraph:
    (5) It shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work.[194]

If the bill passes, specifically section 5, it would reestablish some of the protections afforded under Sony and would restore much of the incentive for innovation stolen by the DMCA.[195] This measure, by lowering the threshold to “significant,” would allow manufacturers to invest in R&D, with less risk in HCCPs, and in technological areas where there is clearly more than significant demand for such innovation.

X. Conclusion

Digital is here to stay whether we like it or not. However, we need the courts to realize that digital is a boon, not an evil, and the DMCA was the evil that escaped from the box. We must get courts to think outside of their preconceived notion of what is the actual Pandora’s box. Regardless of the entertainment industry’s fears, Congress cannot pass a statute that effectively, though not expressly on its face, renders a constitutional clause ineffective in terms of copyright. This would be like Congress attempting to outlaw the sale of bullets, claiming that such a statute does not offend the Second Amendment because one can still buy guns. The DMCA hinders fair use and the progress of legitimate copying and storage technologies, plain and simple. In essence, the DMCA is punishing consumers who want to embrace new technology.

The RIAA and the MPAA, as well as other entertainment producers and their related groups, tend to look past the words “primarily designed” in the DMCA. These words seem to indicate an intent requirement. These groups hone in on the ability to circumvent as being the sine qua non of a DMCA violation. Even providing know-how is attacked, as in the APEX situation. Such a heavy handed attack has consequences.

The DMCA is hindering the development of technology in basic staples of commerce. There exists many other better legislative options today. These options existed even at the time the DMCA was enacted, which if [p153] exercised, would have hindered no more innovation of technology than was necessary. However, these options were not part of the statute.

It is important to bear in mind that the judges should not be blamed. When looking at the leading cases, it is important not to blame the judges for what may appear to be a lack of understanding of the underlying technologies at issue. Judges are not expected to be technical masters of all subjects that come before them. We should no more expect a judge to understand the intricacies of binary chip design and machine code, than we should expect them to automatically and completely understand how lasers affect vitreous fluid in a medical malpractice case. It is the responsibility of the parties, and by default, the lawyers handling the cases, to educate the judges as to technical issues via expert testimony and demonstrative evidence.

Lawyers who hope to prevail on a claim of the DMCA’s unconstitutionality where others have failed must be prepared to thoroughly train the judge in the technical issues underlying their case. At the very least, the attorneys should introduce evidence including the quality, or lack thereof, of copies made from DVDs and CDs with digital protection, so that the judges can see that these copies are severely substandard. The judges could see such copies would not constitute the type of fair copy use anticipated by section 106.

The perfect litigant to challenge the DMCA should demonstrate how innovation in their field is being unduly restricted by the DMCA, how there is a demand for their product, that it primarily would be used for fair uses, that the fair use can only be accomplished through circumvention, and that they have built in safeguards to minimize as much infringement as possible.

That litigant should also point out that the entertainment producers possess options they could use to guarantee fair use, while still protecting their works. On the other hand, the litigant should show that the statute does not require them to use this less restrictive technology. Hopefully the perfect litigant will be able to convince the Court to put the true evil back into its box.

  • B.A., University of Pennsylvania, J.D., Tulane University, LL.M., Intellectual Property, George Washington University Law School; licensed to practice in Texas and Oklahoma. The author would like to thank Mom and Dad, as well as Professor Dawn Nunziato of The George Washington University School of Law. The author can be contacted at
  • [1] 17 U.S.C. § 1201 (2004).

    [2] Witness testimony, To Amend Title 17, United States Code, To Implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty: Hearing on H.R. 2281 Before the House Comm. On the Judiciary, 105th Cong. 551 (1997).

    [3] H.R. Rep. No. 105-551, at 10 (1999).

    [4] U.S. Const. art. I, § 8, cl. 8 (the Copyright Clause).

    [5] The Copyright Clause states that Congress shall have the power, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8.

    [6] 17 U.S.C. § 1201.

    [7] Id.

    [8] Id.

    [9] Id.

    [10] Id. § 1201(a)(1)(A) (emphasis added) (“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”).

    [11] 17 U.S.C. § 1201(a)(1)(A).

    [12] Id. §§ 1201(a)(1)(A), (b)(1)(A), (d)(1)(A), (i)(1)(A).

    [13] Id.

    [14] Id. §§ 1201(a)(1)(A), (a)(2)(A), (b).

    [15] Section 1201, in relevant part, states:

        (A)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
        . . . .
        (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that —

        (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
    (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title.
    . . . .
    (B)(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that — (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
    (B) has only limited commercially significant purpose or use other than to circumvent portion afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

Id. § 1201.

[16] 17 U.S.C. § 501 (2004).

[17] The U.S. Supreme Court recently decided to hear a case that involves the safe harbor provisions of the DMCA, and deals primarily with file sharing and piracy. See MGM Studios, Inc. v. Grokster Ltd., 380 F.3d 1154 (9th Cir.), cert. granted, 125 S. Ct. 686 (2004).

[18] Universal City Studios, Inc. v. Corley, 273 F.3d 429, 436 (2d Cir. 2001); United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002).

[19] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1994).

[20] Eldred v. Ashcroft, 537 U.S. 186 (2003).

[21] Id.

[22] In re Trade-Mark Cases, 100 U.S. 82, (10 Otto) 82 (1879).

[23] U.S. Const. art. I, § 8, cl. 8.

[24] 535 U.S. 722, 730-31 (2002).

[25] Id. at 731.

[26] Id.

[27] Id.


    The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

[29] 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004).

[30] Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 168 (1989).

[31] Devices such as MP3 players with storage capacities in excess of five gigabytes.

[32] Digital Video Discs.

[33] In other words, which Justices to target.

[34] 537 U.S. 186 (2003).

[35] 464 U.S. 417 (1984).

[36] Id. at 419.

[37] Id. at 423, 425.

[38] While Sony involved a Betamax machine, Sony referred to both Betamax and VHS machines as VTRs.

[39] Sony, 464 U.S. at 432.

[40] Id. at 431.

[41] 17 U.S.C. § 1201(k)(1)(A)(i) (2004).

[42] Macrovision is a copy guard technology that scrambles a video signal when connected to a recording device.

[43] Sound Recording Act of 1971, Pub. L. No. 92, 85 Stat. 391, 3140 (amended 1971).

[44] H.R. Rep. No. 105-551, at 10 (1998).

[45] Sony, 464 U.S. at 431 (emphasis added).

[46] Id. at 440.

[47] Id.

[48] Id. at 442.

[49] Id. at 433.

[50] Sony, 464 U.S. at 456.

[51] Id. at 430-31.

[52] 273 F.3d 429 (2d Cir. 2001).

[53] Id.

[54] Id.

[55] 307 F. Supp. 2d 1085 (N.D. Cal. 2004).

[56] Id. at 1089.

[57] Id. at 1105.

[58] Id.

[59] Id. at 1101.

[60] 321 Studios, 307 F. Supp. 2d at 1102.

[61] Id.

[62] Id.

[63] The Recording Industry Association of America’s 2003 Yearend Statistics, available at (last visited Mar. 9, 2005).

[64] My Cousin Vinny (Twentieth Century Fox 1992) (“[Would I] get this [Non-CSS encrypted DVD] from the same guy who sold Jack his Magic Beans?”).

[65] 321 Studios, 307 F. Supp. 2d at 1102.

[66] Eldred v. Ashcroft, 537 U.S. 186 (2003).

[67] Id. at 207 (emphasis added).

[68] Id. at 191.

[69] Id. at 230-31.

[70] Id. at 240.

[71] Eldred, 537 U.S. at 240; Graham v. John Deere Co., 383 U.S. 1 (1966).

[72] Eldred, 537 U.S. at 245.

[73] Id.

[74] 539 U.S. 23 (2003).

[75] Id. at 33, 34.

[76] The vote was 8-0. “Justice Breyer took no part in the consideration or decision of the case.” Id. at 38.

[77] 180 F.3d 1072 (9th Cir. 1999).

[78] Id.

[79] 17 U.S.C. § 1001 (2004).

[80] Diamond, 180 F.3d at 1075.

[81] Id. at 1081.

[82] The statute was originally meant to apply to Digital Audio Tape Recorders. Id.

[83] Id.

[84] Id. at 1076.

[85] Diamond, 180 F.3d at 1076. Most of the current higher-end MP3 players are hard drives themselves, though this does not give any extra specific protection or exemption from jurisdiction under the DMCA.

[86] Id.

[87] Id. at 1079 (quoting S. Rep. No. 102-294, at 86 (1999)).

[88] (Corrected) Memorandum of Points and Authorities of Amici Curiae [Law Professors], at 11, United States v. Elcom, Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002) (No. CR-01-20138 RMW, filed Feb. 6, 2002).

[89] 253 F. Supp. 2d. 943 (E.D. Ky. 2003).

[90] Formerly an IBM company; spun off in the late 1980s.

[91] Lexmark, 253 F. Supp. 2d at 945.

[92] Id.

[93] Id. at 950, 951.

[94] Real Networks, Inc. v. Streambox, Inc., 2000 WL 127311 (W.D. Wash. 2000).

[95] Format y = mx + b, which itself raised questions about how effective an access control has to be to qualify under the DMCA. The Court also seemed to ignore basic tenets of the function v. expression dichotomy, holding that this simple program was expression. Id.

[96] Lexmark, 253 F. Supp. 2d at 947.

[97] Lexmark, Inc. v. Static Control, 387 F.3d 522 (6th Cir. 2004).

[98] 15 U.S.C. § 14 (2002).

[99] FTC v. Morton Salt Co., 334 U.S. 37 (1948).

[100] S. Rep. No. 105-190, at 8 (1998) (emphasis added).

[101] Id.

[102] Id. at 10-11 (emphasis added) (citations omitted).

[103] Black’s Law Dictionary 1148 (6th ed. 1990).

[104] Id.

[105] S. Rep. No. 105-190, at 8.

[106] H.R. Rep. No. 105-551, at 17 (1998).

[107] The government witnesses were Bruce Lehman the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, and Marybeth Peters, Register of Copyrights.

[108] H.R. Rep. No. 105-551, at 17 (1998).

[109] S. Rep. No. 105-190, at 13.

[110] The technical explanation of how these controls work is described later in this Article. At this time it is enough to know that these technologies function by allowing the original source or broadcast to be viewed normally, but when copied, emit a distortion signal that severely degrades the picture quality of the copy.

[111] Black’s Law Dictionary 1148 (6th ed. 1990).

[112] In fact, DVD sales of Fox’s cancelled show “Family Guy” were so profitable, Fox is returning the show to the airways in new first-run production, slated to begin airing sometime in early 2005.

[113] Lexmark, Inc. v. Static Control, 387 F.3d 522 (6th Cir. 2004).

[114] Stephen A. Booth, Access Denied!, Sound & Vision Mag., Mar. 2002, at (last visited Dec. 31, 2004).

[115] Id. With the likely exception of print media.

[116] Id.

[117] U.S. Const. art. I, § 8, cl. 8.

[118] Much in the same way many Windows-based media players access databases, when you load an audio CD, to identify the album you are playing and download the track information.

[119] In the context of a DVD movie in the public domain you would only have a right to the movie itself and not the menu features or bonus, as these would be new material subject to their own new copyright.

[120] Gary Gentile, The Good Parts, Express, Apr. 19, 2004, at 20.

[121], Six Million Dollar Man, available at (last visited May 9, 2005).

[122] Rob Walker, The Guts of a New Machine, N.Y. Times, Nov. 30, 2003, sec. 6, at 78. The original iPod held approximately 1,000 songs. The current high capacity unit holds approximately 10,000 songs.

[123] Id.

[124] Moore’s Law, Small Business Computing Channel, available at (last visited Jan. 7, 2005).

[125] The IOMEGA Zip Disk, Jaz Drive, and Click Miniature drive never really caught on with consumers to replace floppy drives, or any other drives for that matter.

[126] ARCHOS Web Site, at (last visited Jan. 7, 2005).

[127] Id. The unit will also take a feed from a video camera, a TV with an output signal, or a personal computer.

[128] Device for DVD Movie Raises Legal Issue, Jan. 7, 2004, at (last visited Jan. 7, 2005).

[129] Id.

[130] Paul Sloan & Geoff Keighley, The Offer Hollywood Can’t Refuse, Business 2.0, May 2004, at 94.

[131] Library of Economics and Liberty, The Concise Encyclopedia of Economics, Biography of Adam Smith (1723-90), available at (last visited May 9, 2005).

[132] Tom Verducci, Welcome to the New Age of Information, Sports Illustrated, Apr. 5, 2004, at 52.

[133] Id. and author’s personal knowledge.

[134] Commonly, yet mistakenly, referred to as an amplifier. An amplifier in actuality is only a part of the receiver that powers the speakers.

[135] Id.

[136] Webthink International Web Site, at (last visited Jan. 7, 2005).

[137] Andy Patrizio, Apex Player Banned by Ebay, Wired News, June 20, 2000, available at,1367,37072,00.html (last visited Jan. 7, 2005).

[138] Id.

[139] Id.

[140] Id.

[141] When video signals are described in terms of resolution this refers to the lines of horizontal resolution in the signal. A line of resolution is a column of RGB (Red Green Blue) pixels.

[142] Interestingly the government has been trying to mandate HDTV for years, and had to push back the effective mandatory date of stations switching to HDTV. It now seems odd that other legislation will interfere with providing the public all the benefits of a better quality signal.

[143] For example, Sony televisions are known for their Trinitron® technology, which enhances the green and black hues on a television screen giving Sony televisions a distinctive and crisp feel. Mitsubishi has their “DiamondVision” picture technology. Panasonic Televisions burn Blue and Green hues brighter. High-end components have their own distinct feel for how they express content that they process.

[144] The TiVo unit also relays back to TiVo information about what you watch. TiVo makes this information available (presumably for a fee) in ways similar to Nielsen data. Two days after Janet Jackson’s infamous Superbowl stunt, TiVo stated it was the most replayed moment ever on TiVo devices. TiVo: Jackson Stunt most Replayed Moment ever, Feb. 3, 2004, at (last visited Jan. 7, 2005).

[145] Section 1201(h) only requires that if such information is collected, that “conspicuous notice” be given to the consumer. 17 U.S.C. § 1201 (2004).

[146] David Nimmer, Sacred Text, Technology and the DMCA 334 (2002).

[147] 17 U.S.C. § 1201(h).

[148] Such “hacks” are frequently available via the world wide web.

[149] Press Release, SK Telecom, SK Telecom Carries Out Test of Mobile Advertisement Using Cellular Phone (Sept. 3, 2001), available at (last visited May 9, 2005).

[150] However, it is likely that cellular phone contracts of the future will require the user to accept advertising, and thus contract around any fair use issues.

[151] 17 U.S.C. § 302(a) (1978).

[152] Harper & Row Publishers, Inc. v. Nat’l Enters., 471 U.S. 539, 561 (1985).

[153] Sony, Eldred, Dastar, and Festo, among many others.

[154] 17 U.S.C. § 107 (1992).

[155] Id.

[156] DMCA ch. 12 (2003).

[157] Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 319 (S.D.N.Y. 2000).

[158] Id.

[159] EEF on SunnComm’s Threat Against Princeton Student, Oct. 9, 2003, available at (last visited Dec. 31, 2004).

[160] Ted Bridis, Music Industry Sues 477 More Computer Users, Associated Press, Apr. 29, 2004, available at (last visited Dec. 31, 2004).

[161] In my case, this came up when a friend of mine had just had her fourth child, and wanted to download the picture of her newborn from the hospital’s web site, but the web site would not allow you to copy the picture. She called me to ask me how to get the photo.

[162] The local freely distributed newspaper, the Post Express, a publication of the Washington Post, is available online in Adobe format. For some reason, this newspaper, which you can pick up for free on the street, cannot be reprinted from the online version. However you can copy the crossword section every day using the tip in the text.

[163] It would only take 162,000 frames for a 90 minute movie.

[164] Less than one page in a 70+ page paper. 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004).

[165] Jessica Litman, Digital Copyright 174 (2001).

[166] 510 U.S. 569 (1994).

[167] Amount of the work copied being a key factor in fair use analysis.

[168] Section 106 states:

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
    (1) to reproduce the copyrighted work in copies or phonorecords;
    (2) to prepare derivative works based upon the copyrighted work;
    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106 (2004).

[169] Including, in that case, Mr. Rogers.

[170] Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 445 (1984).

[171] Assuming, of course, that he holds the copyright on it.

[172] Fortunately, Spielberg owns a large part of the studio (Dreamworks) that produces his work.

[173] 17 U.S.C. § 106.

[174] David Bowie: Please Remix My 'Songs, Industry News, Apr. 26, 2004, at (last visited Dec. 31, 2004).

[175] 17 U.S.C. § 1201 (2004).

[176] Or even the TV films at issue in Dastar.

[177] Litman, supra note 165, at 165 (“. . . [c]ontrol over reproduction could potentially allow copyright owners control over every use of digital technology in connection with their protected works. This is not what the Congresses in 1790, 1870, 1909, and 1976 meant to accomplish when they awarded copyright owners exclusive reproduction rights.”).

[178] 17 U.S.C. § 1201(a)(2)(B).

[179] Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[180] 347 U.S. 483 (1954).

[181] Id. at 486.

[182] Id. at 493.

[183] Id. at 486.

[184] 17 U.S.C. § 1201(f) (2004).

[185] Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 426 (1984).

[186] Steve Schoenherr, Recording Technology History, at (last visited Dec. 31, 2004).

[187] Id.

[188] The exact formula to determine a fair number of copies, a fair amount to be a partial copy, and how many copies a consumer can make is something that can be determined by the legislature.

[189], iTunes Web Site, available at (last visited May 9, 2005).

[190] Ten is an arbitrary number, but it does allow a reasonable amount of fair use. It is better than the number zero normally afforded under the DMCA.

[191] RW stands for “rewritable.”

[192] 17 U.S.C. § 1004 (1992).

[193] Id.

[194] Id.

[195] See id.; Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
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