Monday, June 23, 2008

Digital locks, fair use, and the Constitution

Canada is considering legislation that would make it illegal to break digital protections on copyrighted material (i.e., so-called "DRM" ("Digital Rights Management") protection"). The Canadian bill apparently is intended to override existing rights, including the right to backup or copy digital materials for personal use or for fair use of materials with DRM protection. Apparently too, "mash ups and satire will be criminalized by the bill if they 'distort or mutilate a copyright performance.'" A group of Canadian musicians have severely criticized the bill, stating that "[t]he question is, who gains from this bill? It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers. What we do need is a government that is willing to sit down with all the stakeholders and craft a balanced copyright policy for Canada that will not repeat the mistakes made in the United States.”

The group is referring to 17 U.S.C. Section 1201 of the Digital Millennium Copyright Act,(the "DMCA"), which purports to make it unlawful to override a CD or DVD's digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

Nevertheless, I'm not sure a court could impose liability under Section 1201 of the DMCA on someone who evades DRM protection on a CD or DVD if the copying is for a fair use. Fair use is founded in the Constitution, both in Article I, Section 7, which gives Congress 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," and in the First Amendment protection of free speech. In other words, fair use is a constitutional right, and constitutional rights cannot be derogated by legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary's Inner Tracy Flick video are in violation of the DMCA's provision making it unlawful to copy material under DRM protection even if the video otherwise makes fair use of scenes from the movie Election. Soghoian cites to the statement by the U.S. Court of Appeals for the Federal Circuit in Atari v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992), that "[t]o invoke the fair use exception, an individual must possess an authorized copy of a literary work." Thus, Soghoian concludes, if the creator of the video "used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit."

I'm not so sure. Congress cannot through legislation deprive someone of using material in a way the First Amendment of the Bill of Rights and Article I, Section 7 of the Constitution permit. Thus, I am confident, a statute that makes it unlawful to copy for fair use purposes any document stating "no copy of this document is permitted by its author for any purposes" would be unenforceable under the Constitution. I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than such a bare declaration that any copying is unlawful.


Andrew P. Connors said...

Professor Friedman,

Thanks for this post. As a fellow copyright enthusiast, I'm always interested to learn about emerging issues in this field. However, I have to respectfully disagree with you regarding fair use and the constitution, at least with regard to your analysis, although I may ultimately agree with your conclusion that fair use to some extent is constitutionally required.

First, fair use is not a constitutional requirement of Article I, section 8, clause 8 (the copyrights and patents clause, which you erroneously identify as found in Article I, section 7.) Of course, that section simply authorizes Congress to grant limited monopolies for patents and copyrights, as part of Congress' enumerated powers. Thus, that section creates no rights reserved to the People - it merely grants Congress the authority to act. Accordingly, Congress could choose to enact fair use provisions, or it could not, if we simply view this section in isolation. Therefore, this section provides no basis for the conclusion that fair use is constitutionally required.

Second, I think you are on to something with respect to the first amendment - many fair use decisions hinge on the importance of the protected speech engaged in. For instance, in Hustler Magazine v. Moral Majority, 796 F.2d 1148 (9th Cir. 1986), the court held that political commentary constituted a fair use. However, the court still weighed the traditional factors of fair use as set forth in 17 U.S.C. 107. Those factors more or less relate to the impact the use has on the copyright monopoly, and largely has little to do with first amendment protections (perhaps, except, regarding parody.) Accordingly, I don't think current fair use factors are per se constitutionally required, but I ultimately agree that fair use as it relates to political and news commentary generally, along with other forms of first amendment speech, are probably constitutionally required as fair use. I don't think any court has concluded that, however.

Peter Friedman said...

Andrew -- I would suggest that it is the First Amendment that is the very source of the fair use doctrine. Thus, the the fair use test is the effort to balance the right to free speech against the limited monopoly over expression authorized by the Copyright Clause. Nor is the First Amendment limited to political or journalistic expression. See, e.g.,