The Digital Millenium Copyright Act (DMCA) does not violate the First Amendment, according to a federal appeals court. In Green v. United States DOJ, the U.S. Court of Appeals for the District of Columbia Circuit considered whether the law violated free speech rights because it stifles the fair use of copyright works. It rejected the challenge because the DMCA regulates non-expressive conduct, not content. Some ABA Litigation Section leaders say that while the court has left the DMCA intact, the decision is a major blow to digital free speech supporters. Others are relieved, celebrating the fact that the DMCA is still protecting their clients’ copyrighted works.
Congress codified the fair use doctrine as an affirmative defense to a claim of copyright infringement in Section 107 of the Copyright Act. Under the fair use doctrine, the use of copyrighted works could be used for purposes such as to criticize, to comment, for news reporting, for teaching, for scholarship, or for research. The Green court noted that fair use “plays a key role in striking a balance between expression and prohibition in copyright law.”
When Congress enacted the DMCA in 1998, it criminalized activities that circumvent technological measures that protect copyrighted works from piracy or modern theft. Section 1201 of the DMCA also identifies exemptions that do not violate the DMCA. The DMCA tasked the Library of Congress to identify new exemptions every three years. The Green court observed that this process was designed “to ensure that the anticircumvention provision leaves breathing room for noninfringing uses.”
In Green, the plaintiffs challenged Section 1201 in the U.S. District Court for the District of Columbia, arguing that it violated their First Amendment rights under the fair use doctrine. They contended that the anticircumvention provision was facially overbroad, stifling “the fair use of copyrighted works.” And they asked the court to consider certain examples, such as “a documentary filmmaker using in her own film copyrighted video clips she obtained via circumvention.” Another example they offered was “a visually impaired person enabling read-aloud functionality of an e-book by circumventing its technological protections.”
The plaintiffs also challenged the Library of Congress’s process that identified new exemptions. The plaintiffs claimed the rulemaking process requires a user to obtain approval for how they express themselves from the Library of Congress, resulting in an unconstitutional prior restraint on speech.
On the government’s motion, the district court issued an order “dismissing [the plaintiffs’] facial First Amendment challenges to section 1201(a) for failure to state legally viable claims under Federal Rule of Civil Procedure 12(b)(6).” The plaintiffs appealed.
On appeal, the D.C. Circuit rejected the plaintiffs’ arguments. It held that fair use has “never been held to be a guarantee of access to copyrighted material” so that a user can copy such work using the user’s “preferred technique.” And it reasoned that while the First Amendment “protects a right to read,” it does “not grant unimpeded access to every reading material.” The court noted that a copyright holder has no duty to make their works available for fair use. Additionally, the court observed that fair use has never been held to be a guarantee of a user’s access to copyrighted material “in order to copy it by the fair user’s preferred technique or in the format of the original.”
The court also rejected the plaintiffs’ argument that the DMCA’s process to identify new exemptions is unconstitutional. The court reasoned that the exemptions are not content-based since the techniques the DMCA authorized the Library of Congress to consider do not bear a “close enough nexus to expression or conduct commonly associated with expression.” Instead, the court held that the process is constitutionally applied to non-expressive conduct, involving circumvention and trafficking.
“The court’s ruling is a significant loss for digital free crusaders,” says Laurence F. Pulgram, San Francisco, CA, former Chair of the Litigation Section. “It means the DMCA anti-circumvention procedures will continue to limit productive uses and investigations into copyrighted works on the conclusion that the general societal benefit of encryption—as spurring creation of works—outweighs those uses,” he adds.
On the other hand, some leaders state that their clients are relieved by the court’s ruling. Anticircumvention refers to “technological measures that copyright owners have put into place to prevent the copying of their work,” says Trevor W. Barrett, Venice, CA, Co-Chair of the Section of Intellectual Property Law's Copyright Litigation Committee. But he notes that Green still permits people to make use of digital works for those who “follow the exceptions or follow the rule making process.” “Congress has made it clear that it is not an impossible burden,” he adds.
In light of the ruling, approaching a copyright owner and requesting permission to use his or her copyrighted work “is the safest thing to do,” says Dr. Joan K. Archer, Los Angeles, CA, Co-Chair of the Section’s Intellectual Property Committee. Pulgram agrees, noting “when possible, obtaining advance permission to circumvent will always be more certain.”
