Volume 18, Number 2
March 2001

ADMINISTRATIVE LAW AND REGULATORY PRACTICE

Copyright Protection in the New Millennium

Amending the Digital Millennium Copyright Act to Prevent Constitutional Challenges

By JeanAne Marie Jiles

On October 28, 1998, President Clinton signed into law the long-awaited and much-heralded Digital Millennium Copyright Act (DMCA), a complex piece of legislation addressing rapidly changing technology and designs, to ensure more effective protections of copyright owners’ digital material. This legislation substantially modifies U.S. copyright law by amending the Copyright Act of 1976 and other copyright laws to comply with two World Intellectual Property Organization (WIPO) treaties.

Title I of the DMCA contains controversial anticircumvention provisions. Specifically, Section 1201(a) grants the Librarian of Congress the authority to conduct rulemaking proceedings to determine the extent to which the anticircumvention provisions will apply to copyright users. This provision also delays implementation of the anticircumvention rule for two years, during which the Librarian of Congress studies the prohibition’s effect on users and promulgates rules accordingly. These rulemakings effectively will result in the exclusion of certain types of materials from protection.

The inclusion of Section 1201(a), and particularly the Librarian’s designation as the rulemaking authority, raises serious constitutional concerns. By delegating the rulemaking authority to a legislative officer, Congress violated the constitutional doctrine of separation of powers and paved the way for future constitutional challenges to the validity of Title 1. Even if the Librarian were determined to be an "executive officer" for separation of powers purposes, the DMCA still would raise constitutional concerns because Congress did not establish sufficient guidelines within which the Librarian is to legislate to avoid "nondelegation" concerns. Con-sequently, unless this provision is amended before Title I is implemented, it will prompt constitutional challenges on the basis of the doctrine of separation of powers.

This article advocates amending Section 1201(a) before rulemakings begin or, at the very least, before the two-year period expires to avoid unnecessary constitutional litigation.Delegation of authority to Librarian of Congress is an intralegislative delegation in violation of separation of powers. Under Title I, the Librarian of Congress is given rulemaking authority that effectively results in the exclusion of certain types of materials from protection. Such rulemaking, when intended to make policy that will bind the nation and thus is "legislative in its character and effect," must be delegated properly to the executive branch or an independent agency by Congress. Congress’s broad authority to take action that has the "purpose and effect of altering the legal rights, duties, and relations of persons...outside the Legislative Branch" is limited by the procedural requirements of Article I of the U.S. Constitution. Article I requires that Congress take such action "in accord with a single, finely wrought, and exhaustively considered procedure"—bicameral passage and presentation to the president followed by presidential signature or bicameral repassage by a two-thirds majority. Otherwise, "Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to a legislative committee, or to an individual agent of the Congress."

Under the rationale of Bowsher v. Synar, a delegation that allows Congress to legislate without following Article I procedures constitutes an unconstitutional intrusion into the executive function. The delegation of the rulemaking authority to the Librarian of Congress poses just such a risk.

As the head of a legislative office, the Librarian is a legislative officer. Under Title I’s rulemaking authority, the Librarian will determine classes to which the heightened copyright restrictions will apply and thereby determine and bind the rights of users and content providers. This determination automatically results in the exclusion of certain other categories, thus allowing them to operate outside the restrictions of the DMCA. The effect of these rulemaking determinations is to substantially alter the legal rights of those parties. Users will not have the access they formerly enjoyed and content providers, to whom the new copyright protection will not extend, will find themselves with less protection than those providers included by the Librarian.

The authority to make such a broad legislative determination lies with Congress and requires bicameral passage and presentment to the president, unless authority in that area has been delegated properly to the executive or an independent agency pursuant to federal law. Accordingly, a delegation of such authority to a legislative officer that does not meet the bicameralism and presentment requirements is an impermissible intra-legislative delegation of power in violation of the doctrine of separation of powers. Congress has not divested itself of the legislating power by designating the Librarian as the rulemaking body for Title I of the DMCA. Hence, as a legislative officer, the Librarian of Congress cannot legislate without following the constitutionally prescribed legislative procedures. By authorizing a legislative officer to legislate without complying with the Article I procedures, Congress has set the stage for constitutional challenges by affected parties when Section 1201(a) is implemented. Title I does not contain intelligible principle or articulate procedures for rulemaking. Even if the Librarian were considered an agent of the executive, Title I still would not pass constitutional muster because, under the nondelegation doctrine, there are limits on Congress’s ability to delegate legislative power to the president. The Supreme Court emphasized in a string of cases that an acceptable delegation from the legislature of avowedly discretionary powers could survive constitutional scrutiny only if the delegation included an "intelligible principle" to direct the delegate’s discretion. Essent-ially, the Court reasoned that to not require Congress to provide statutory boundaries for the delegation of authority would make such a "‘sweeping delegation of legislative power’ that [a statute] might be unconstitutional." Similarly, Title I grants the Librarian the broad authority to determine whether users of copyrighted work are adversely affected by the anticircumvention prohibition and, though Title I indicates areas that the Librarian shall examine, it in no way provides restrictions or boundaries to this authority and does not require that the Librarian follow specified procedures.

The dangers of this broad delegation are manifold, given the three important functions the nondelegation doctrine serves in protecting the separation of powers. First, it ensures that Congress will make important social policy decisions. Second, it guarantees that Congress will have to provide an "intelligible principle" to guide the exercise of the delegated discretion. Third, it provides a basis for the courts, in reviewing the exercise of delegated legislative discretion, to test that discretion against ascertainable standards. By allowing members of Congress to defer the difficult choices of determining who ultimately will suffer under a new statute and who will benefit, they are avoiding their ultimate duty as legislators and depriving society of the ability to respond to their decisions through the electoral process.Recommendations. There is time for the DMCA to be amended before Title I is implemented, though it should be done before the rulemakings begin. The easiest and most obvious solution is to grant the rulemaking authority to a nonlegislative officer or to an independent executive agency. The legislative history indicates that the authority was delegated initially to the secretary of commerce. This was a permissible delegation to an executive officer.

In addition to transferring the rulemaking authority, Congress should define further the goals and principles by which the rulemaking body is to develop policy to avoid conflicting with the nondelegation doctrine. The doctrine requires the inclusion of an intelligible principle and the creation of procedures within which the rulemaking authority would function. Ultimately, a solution will require Congress to spend more time shaping the legislation. Successful amendment will require that Congress again address the controversial issues of jurisdiction and control resulting from competing interests that created the initial obstacles to passing the act.

JeanAne Marie Jiles is an associate with Darby & Darby, P.C., in New York City.

- This article is an abridged and edited version of one that originally appeared on page 433 of Administrative Law Review, add season (52:1).

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