DMCA (was Re: Space-Shifting)

>>> Eric Eldred <eldred[_at_]eldritchpress.org> 10/17 9:59 AM >>> I think the difference between Vault v Quaid and Universal v Sony on the one hand and the DMCA on the other is that the former allowed *any* "infringing"technologies if there was a "substantial non-infringing use," while the rule under the DMCA is that a small exception can be made for "substantial non-infringing commercial use," otherwise *all* fair use is banned. (This rule is slightly different from Tyler's "primary purpose is for infringement.") <<<<<

I really would appreciate not having the court's positions attributed to me. If you look at my message (reproduced below), I didn't say a thing about the "primary purpose" of the technology.

I also disagree somewhat with your characterization of the statute. You wrote "the rule under the DMCA is that a small exception can be made for 'substantial non-infringing commercial use,' otherwise *all* fair use is banned." I think the last clause should read "otherwise *all* use is banned, whether it is fair or unfair." You're right, the DMCA changed the Sony rule. The DMCA may be unwise, even unfair; but unless it is unconstitutional, it is the law.

I find myself in the difficult and uncomfortable postition of defending a law that I opposed and don't like, just because I think it is not entirely irrational and is probably not unconstitutional. Please bear in mind that I am trying to give the opposing viewpoint and to correct your legal errors (which are many). I am on your side on term extension, so please don't shoot the messenger.

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Open source advocates find this latter rule inapplicable. And the constitutional basis for fair use as recognized under Vault is being thwarted by a statute that has not been sufficiently examined to see if it is conflict with the First Amendment. <<<<<

To the contrary, Judge Kaplan engaged in an EXTENSIVE discussion of the First Amendment, and he found it inapplicable. You may disagree with his conclusion, but at least give him credit for taking the argument seriously, which is more than a lot of district judges would have done. [I don't think the district judge in your term-extension case took the First Amendment argument very seriously, for example.]

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I believe the legislative history of DMCA shows that legislators had no intention to overrule the Betamax case, and I believe the same is true of Vault v Quaid. The legislators might have been on the right track following the WIPO treaty to ban "black box" devices that allow users to circumvent paying for pay-per-view TV. But in this case, users are not circumventing paying. Granting movie studios a perpetual patent-like right to control licenses for players, and using copyright law in the form of the DMCA to do that, seems beyond the scope of congressional power. <<<<<

I disagree on two fronts. First, I think the legislators DID intend to replace Sony and Vault with a more restrictive standard. [At the very least, the statute was drafted that way, and Congress voted for it, whether they knew what they were doing or not.]

Second, there are many users who ARE circumventing paying. You argue as if DeCSS was ONLY being used to create Linux-compatible players, which is simply not true. The question is: is it constitutional to enjoin a technology which has a non-infringing use (I'll leave it to others to decide whether it is "substantial" or not) in order to try to prevent a (potentially large) infringing use? Sony was not a constitutional decision; it was a statutory one, so it can be overruled by Congress. The only debatable question is the First Amendment question.

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[Eric wrote:] > In the DeCSS case we amici argue that for the purposes of compatibility, to > construct a Linux open source DVD player, it was necessary at one point to > decrypt on a Windows machine, save a copy, and then move the copy to a Linux > machine. Do you think that should not be fair use, because of your framework > of what and what is not allowed with reproduction under fair use? <<<<<

> 
>[I wrote:] I'm sorry, I don't see this as a fair use case.  Do I think that the DMCA and > encryption have the potential to restrict fair use and prevent exploitation > of works in the public domain?  Yes.  Do I think that movie studios are > overreaching, greedy bastards who are using DVD encryption to protect their > traditional market segmentation and make more money?  Yes.  Do I think that a > consumer has the right to decrypt DVDs so that he/she can view them on a > Linux machine?  No.  If you want to view a DVD, buy a DVD player.  If it > doesn't work on a Linux machine, tough.  I don't see anything in the > Constitution that gives you the right to view DVDs on a Linux machine.  As > Judge Kaplan said:
> 
> "Indeed, even academic commentators who take the extreme position that most > injunctions in intellectual property cases are unconstitutional prior > restraints concede that there is no First Amendment obstacle to injunctions > barring distribution of copyrighted computer object code."  Slip op. at 28.

[Eric replied:] Well, the DMCA does allow circumvention for the purposes of compatibility. The lower court ignored that or dismissed it. And the computer code argument Kaplan cites does not rule here. (Though I'd like to hear some more from the "academic commentators" on this issue.) <<<<<

The article the court cited was Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998). It is an excellent article, and I am in full agreement that most preliminary injunctions in IP cases are unconstitutional. Computer code, however, is not solely speech; it is also a functional machine. Congress has the power to regulate it as a machine, as long as they aren't doing it to target the speech involved. You fail to explain why that argument "does not rule here." [I do agree that the weakest part of the judge's decision is his interpretation of the compatibility exception to the DMCA; but it is a narrowly written exception, which may not provide the result you seek even if intepreted more broadly.]

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I don't see anything in the Constitution that bars me from viewing DVDs on a scanning electron microscope--or my own Linux machine--if I have purchased the DVD disc. <<<<<

But that's not the issue. The issue is whether you are barred by the STATUTE from viewing the DVD on your own Linux machine if decryption is required to do that; and whether the Constitution forbids Congress from making that choice. No one is claiming that the DMCA is constitutionally required; the only question is whether it is constitutionally forbidden.

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This is not a license issue, since everyone agrees no license is involved here--no license says I cannot view the DVD on a Linux machine. Nor is it a patent issue nor a normal copyright infringement case--there is no asserted "substantial similarity" of expression involved. If it is copyright law that bars me from viewing the DVD on a Linux machine, what happened to the "limited times" provision of the Copyright Clause? (Note that the same encryption technology is being used to lock up public domain material as for material under copyright.) <<<<<

Congress' argument is that the DMCA is NOT a copyright law; it is a law the prevents the distribution of technology that has no commercially significant purpose other than to infringe and/or to decrypt/descramble. You have a right to copy a public domain work to which you have access. The question is whether you have a constitutional right of access. I think you SHOULD have a right of access in many cases. But your right of access may be outweighed by the studios right to use encryption and scrambling to protect their copyrighted works.

Remember, I wrote that "the DMCA and encryption have the potential to restrict fair use and prevent exploitation of works in the public domain." But at this point, it is just that: potential. Show me a case in which someone is using DeCSS to descramble public domain works, and I'll be on your side. But right now, the only "commercially significant" use of DeCSS is to illegally reproduce copyrighted works. I may not like that standard any better than you do, but I'm not convinced its unconstitutional..

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What is happening here is that a piece of computer code is being banned under the copyright law (with prior restraint) because a copyright holder asserts that it might "threaten" their rights to make money--even if there is no evidence to show it can be "infringing" in any normal sense. In my opinion copyright should be used to encourage publication, not to ban all future publication of an expression. <<<<<

A piece of computer code is being banned under the DMCA, which is outside the Copyright Act, and is arguably based on Congress' Commerce Clause power, not the Patent and Copyright Clause. But you're right, it is being banned not because it is itself infringing, but because it can be used to infringe. But the ban is probably constitutional, because it is the functional aspect of the software that is being banned, not its communicative aspect.

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I believe this IS a fair use case, and briefs by amici well present that case. Unless the encryption can be lawfully circumvented, nobody can make fair use of the encrypted material, for example by quoting parts of a movie in a lecture at a law school. <<<<<

That's not true. I can quote the movie all I want. ["Go ahead; make my day."] I can even to show parts of the movie during my lecture - on a lawfully authorized DVD machine. I do NOT have to decrypt the movie in order to view it. [I do have to decrypt it to view it on a Linux machine, but I have to buy a TV before I can view a broadcast too.] So I have "access" to the movie in a viewing sense. What I can't do is literally copy small portions of the movie to use in, say, a scholarly documentary on film. But that right has already been greatly circumscribed by the courts under general copyright law. Try to use even a very short clip from a film and you'll find yourself having to pay a license fee. I don't agree with that narrow view of fair use, but I don't think the DMCA is really changing things to any great extent.

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It is disingenuous to assert that users have the right to circumvent if they can only figure out how to do it themselves. This is the key point of Vault v Quaid--that if users have that right, then they also have the right to purchase the circumventing technology to do so. <<<<<

But the "right" at issue in Vault v. Quaid was a statutory right, a right that can be eliminated by Congress. To win the DeCSS case, you have to demonstrate that you have a Constitutional right right to do something that requires circumvention, AND that you have a Constitutional right to purchase the technology that permits you to do it. I consider myself to be a public domain advocate, and I am not convinced.

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If the higher courts do not recognize this, then copyright law as we know it will start to become meaningless in today's economy. Publishers will lock up works forever and fair use will remain only a technical possibility for a few experts. The balance will be tipped toward publishers not the public. <<<<<

I am very sympathetic to your concerns, but I think this is an unrealistic future scenario. Pay-per-use is inevitable; but there will always be some publishers who are willing to provide hard copy, because enough members of the public will prefer hard copy. Audiovisual works may be available only in encrypted form, but when the work goes into the public domain (if ever, and I agree with you on term extension), I will be able to copy the encrypted version without liability, and view it on a regular DVD machine. I agree that the balance has been tipped too far toward publishers; but that doesn't mean that what Congress has done in the DMCA is unconstitutional.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Thu Oct 19 2000 - 19:34:46 GMT