for most users to exercise their fair use privileges cannot serve the purpose of
aiding copyright in the digital age, much less be considered a properly tailored or
no more restrictive than necessary manner of doing so.
Traditional copyright law has focused on giving the owner—say, the movie
studio—enough incentives to make a movie in the first place, while leaving the
product sufficiently free for reutilization to allow millions of creative acts, small
and large, to multiply the social value of that initial creation many times over.
“It may seem unfair that much of the fruit of the compiler's labor may be
used by others without compensation. As Justice Brennan has correctly observed,
however, this is not ‘some unforeseen byproduct of a statutory scheme.’ Harper &
Row, 471 U.S., at 589 (dissenting opinion). It is, rather, ‘the essence of copyright,’
ibid., and a constitutional requirement. The primary objective of copyright is not to
reward the labor of authors, but ‘to promote the Progress of Science and useful
Arts.’ To this end, copyright assures authors the right to their original expression,
but encourages others to build freely upon the ideas and information conveyed by a
work. Harper & Row
, 471 U.S., at 556-57 . . . . This result is neither unfair nor
unfortunate. It is the means by which copyright advances the progress of science
and art.”Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S.
“For as Justice Story explained, ‘in truth, in literature, in science and in art,
there are, and can be, few, if any, things, which in an abstract sense, are strictly
new and original throughout. Every book in literature, science and art, borrows,
and must necessarily borrow, and use much which was well known and used
before.’ Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845).
Similarly, Lord Ellenborough expressed the inherent tension in the need
simultaneously to protect copyrighted material and to allow others to build upon it
when he wrote, ‘while I shall think myself bound to secure every man in the
enjoyment of his copy-right, one must not put manacles upon science.’ Carey v.
Kearsley, 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K. B. 1803).”
Yet, as the court below held, the DMCA fundamentally limits the ability of
users to make fair uses of digitized video materials. CSS encryption is designed to
work with licensed DVD players such that fair uses, the equivalent of quotation
from movies, “would be difficult or impossible absent circumvention of the CSS
4Accord White v. Samsung Electronics America, 989 F.2d 1512, 1517 (9th Cir 1993) (Kozinski,
J., dissenting) (“[I]t may seem unfair that much of the fruit of a creator’s labor may be used by
others without compensation. But this is not some unforeseen byproduct of our intellectual
property system; it is the system’s very essence. … We give authors certain exclusive rights, but
in exchange we get a richer public domain.”).
encryption.”111 F. Supp. 2d at 322. Based on this finding, the court below
surmised that in enacting the antidevice provision of the DMCA, Congress had
decided to make it technically impracticable for technologically unsophisticated
users to make fair use of encrypted copyrighted works. See id., at 324.
There is no authority for the notion that First Amendment limitations on the
reach of copyright are satisfied if “sophisticated” users have a fair use privilege
while “unsophisticated” users do not. The First Amendment restriction is general,
not elitist. The privilege Harper & Rowpresumes reaches every citizen, not just
those trained to hack. And thus the decision by Congress to deny fair use rights to
one class of users is inconsistent with the presupposition of Harper & Row.
The Radical Departure of the DMCA from Copyright Law’s
Balance Unnecessarily Restricts the Speech of Users
This radical departure from the traditional framework of copyright law was
neither necessary nor narrowly tailored to attain the goal of allowing movie studios
to reap sufficient returns to justify investing in making movies. It therefore fails the
intermediate scrutiny of O’Brien.
Congress’s thinking in embracing the most extreme protection for
technology is incomplete and contradictory. The closest effort we see in the
legislative history to consider the justification for this level of protection was the
Report of the Senate Committee on the Judiciary, S. Rep. 105-190. There, the
committee stated that the antidevice provision was added “[i]n order to provide
meaningful protection and enforcement of the copyright owner's right to control
provision to prohibitions on sale of equipment intended for the unauthorized
reception of cable television service, 47 U.S.C. § 553(a)(2), equipment used for
unauthorized decryption of satellite cable programming, 47 U.S.C. § 605(e)(4),
and, most pertinently, to 17 U.S.C. § 1002(a), which regulates digital audio
recording equipment and prohibits equipment that removes the serial copy
management system required by that section to be included in digital audio
SeeS. Rep. No. 105-190 at 28.
The problem with these analogies is that the first two are inapposite, and the
third represents precisely the lesser restrictive means that was readily available to
Congress, and which Congress failed to consider.
The first two provisions protect the integrity of telecommunications systems,
not of copyright. Unlike copyright holders, however, neither Congress nor the
Constitution circumscribe the property rights of cable and satellite providers to
exclude nonpaying customers. They have full property rights in their systems, not
a set of limited statutory rights. The devices these provisions prohibit thus cannot
serve to allow users to exercise privileged access to the protected
telecommunications systems, because users have no access privileges. They are
therefore a poor analogy to devices that enable users to make use of copyrighted
materials in ways that the users are privileged to make under copyright law, the
First Amendment, and the Copyright Clause, U.S. Const. Art. I, § 8, cl. 8.
The sole apposite analogy, then, is to the provision of the Audio Home
Recording Act of 1992, codified at 17 U.S.C. § 1002(a), but that provision
undermines Congress’s claim that prohibiting all circumvention devices absolutely
The Audio Home Recording Act requires that digital audio tape recorders
include a technology that prevents serial copying, where serial copying is defined
as the ability to make a digital reproduction from a digital reproduction, as opposed
to from an original. See 17 U.S.C. § 1001(11). In other words, where digital audio
tapes, as opposed to DVDs, are concerned, Congress found it sufficient to assure
that second generation copying could not occur. Users who own digital audio tapes
can—as a practical, technical matter—make copies of the whole or any portion of
these tapes when they are privileged to do so, as well as when they are not. This
allows the users to make fair uses, or otherwise privileged uses, but also to make
illegal copies. Serial copy management systems simply prevent someone who
possesses a copyof a digital audio tape from making further copies. While this
solution does not completely prevent one person from making hundreds of copies
for distribution, it resolves the problem of perfect multi-generation copying that the
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