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The DMCA and fair use: Has anti-circumvention gone too far?

Jason Schwent April 30, 2015

With the passage of the Digital Millennium Copyright Act (DMCA) in 1999, Congress expanded copyright law and the rights afforded owners of copyrighted works. At the time, copyright holders — worried that the increased access to copyrighted works afforded by the Internet would lead to unchecked infringement — wanted limits on unfettered access to copyrighted works. This pressure resulted in Congress’ creation of new copyright holder rights under the DMCA.

Previously, copyright laws prevented infringers from taking certain actions with a copyrighted work. Those who accessed the work could not copy, sell, or make derivative works based on the work. But with the DMCA, Congress, for the first time, forbade access to copyrighted works under certain circumstances. This represented a fundamental shift in copyright protection. And, while this change in the law appeared to address concerns that songs and movies could be pirated and placed on the Internet for all to share, some worried that unanticipated consequences would result.

The problem lies in the wording of the DMCA statute and its anti-circumvention provisions. Section 1201(a)(1)(A) of the DMCA “prohibits circumventing a technological measure that effectively controls access to work protected [by copyright law].” To show a violation of this section, the copyright holder need only show that (1) there is a copyrighted work, (2) that the work was protected from access by some technology, and (3) that the technology was somehow circumvented. It does not matter that the reasons for the circumvention are legitimate or lawful. The act of circumvention alone causes the violation — and other than several narrow exceptions — the reasons for that circumvention are irrelevant. This creates a situation where copyright holders can now “lock up” properly protected copyright materials with other non-protectable works or even services.

Copyright protections are not without limit. Copyright does not cover functional aspects of works. The rights accompanying copyrights are limited after the first purchase of the copyrighted work. Copyrights do not last forever. And, perhaps most importantly, copyrights are limited by fair use. One of the fundamental exceptions to copyright protections is the notion that the public has an interest in allowing the use of copyrighted materials when it is for the public’s benefit. This fair use exception allows schools to use copyrighted materials in their lessons. It allows critics to describe copyrighted plays, movies, and television shows. And, it allows satirists to use copyrighted songs and characters to make political points.

Each of these exceptions constitutes lawful conduct that the public may undertake with respect to a copyrighted work. But, each of these exceptions requires that the public first have access to the work. Without access, none of this conduct is possible: which is why the DMCA’s provisions preventing access are so problematic.

By locking a work behind anti-circumvention technology, a copyright holder can prevent both unlawful pirating as well as lawful use of the work. And because anyone who accessed without authority would be liable regardless of one’s intent, there is no way for a court to differentiate between proper and improper access when determining liability. This is increasingly problematic when it comes to software, as the use of software creeps into almost every consumer product. By placing copyrighted and technologically protected software within any product, a company can prevent buyers of the product from accessing the software to repair the program through unauthorized dealers, to modify the functional aspects of the software to allow for modification or customization, or to allow for the publishing of repair manuals for the product that incorporate information from the software.

This is an improper restraint on the public’s right of fair use. It also fundamentally undermines the goal of the copyright system as a whole — a system designed to foster the exchange and disbursement of ideas and expression. Without a full and robust protection for the public’s right of fair use, expression is restrained.

There is no doubt a need for protections for electronic media and software to prevent unchecked piracy. But that protection must not come at the expense of fair use. That protection must still allow for access when warranted. Otherwise, copyright is failing to live up to its Constitutional origin and is fostering profit over free expression.

Jason Schwent is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of the Patent Billy Goat. You can find Jason on Google+Twitter, and reach him at (314) 552-6291or jschwent@thompsoncoburn.com.