Over at the U of C Faculty Blog, Randy Picker has an excellent post on fair use and the DMCA. It begins:
Try this hypothetical. Writing a novel seems to be the thing for law professors to do these days, so I pen a law-and-economics thriller (how could it not be?). You want to read it but I have not released any copies but you know that I have one printed sitting in my bedroom at home. You break into my house, steal the novel, immediately read it, and blog a book review, which includes juicy quotes (“He had the supply, she had the demand, and in the heat of the moment they vertically integrated.”)
Where does this put us when the cops catch you? Do you go to jail? Can I sue you for copyright infringement?
Read the rest of the post here.
UPDATE: While I’m on the topic, I shoud point out the fruits of my own dabbling in the waters of the DMCA from back in 2002: A Lukewarm Defense of the Digital Millennium Copyright Act. It’s a very short essay, just 7 pages.
He still misses the point that the DMCA is not a copyright statute despite it’s name. Protecting copyrights was merely the pretext used to secure passage of the law, but copyright hardly circumscribes its effect: a rather striking alteration of property rights.
The DMCA reminds me of those tags on furniture: “This Tag not to be Removed”. Of course a store is free to remove said tag; it just is not permitted to sell the article without the tag attached. The DMCA acts somewhat differently: it’s more akin to a prescription that the tag may never be removed.
[OK Comments: Paul, your comment doesn't make sense to me. I believe Picker's point is that the DMCA is *not* a copyright statute, as it is a statute that governs access. Second, why is the DMCA a "rather striking alteration of property rights"? Statutes prohibiting possession of tools that are designed for mostly unlawful uses are relatively common; for example, see crimes prohibiting the possession of burglar tools. Do you oppose all of these laws, or are some of them okay? If some of them are okay, how are you drawing a line between those that are okay and those that are not?]
To be a little more specific in context. He’s dead-on about the problems with analysis 3, wherein he presents the idea that fair use trumps the DMCA. People are only reaching for this argument because the DMCA seems poorly suited to its purpose, but this sort of argument is really a patch-up over the intrinsic issues that DMCA creates regarding long standing norms regarding one’s rights and controls over property.
Really, people need to make a concerted effort to convince Congress that they got it wrong.
[OK Comments: Paul, I would be interested in your comments to my short article linked to above. As the title might suggest, I'm not so sure that Congess got it wrong.]
I haven’t had a chance to read your article yet, but let me remark about about your comment to my first remark: there is I think a distinction here between burglary tools. First there are two parts at play here, one involves ‘tools-in-trade’ and the other involves the act of circumvention itself.
In the former case, the DMCA is akin to being forbidden from from deconstructing the lock on your door and publishing sketches you make of what you observe about the design.
In the latter case, when you purchase digital content, it would seem obvious that were it not for the DMCA you own a copy of the actual content. Your use of that content is constrained by copyright law, obviously, but generally speaking you’re free to subject it any sort of anaylsis you want (say by running it through a mathematical function (decoder) and displaying the result on your monitor. The DMCA changes this. e.g., in the case of the DVD CSS, you are compelled to only analyize the content via certain approved devices (anything else is circumvention.)
I have to admit that I do not (morally) agree with crimes of mere possession, but I think I’m making a strong point here: that the DMCA altered certain legal norms regarding the nature of property and ownership.
Well, I agree at least in principle with your reasoning in the 2002 article: government provides tools that make contracts enforcible, but I think the conclusion works against you. Namely: the DMCA was poorly structured to achieve its ends.
The best example of this is the DVD CSS system. Now, the DMCA, in theory, requires that the copyright protection mechanism be effective–and this question has been adjudicated with the conclusion that as a matter of law DVD CSS is effective.
But there is something really wrong here, and you can find it in the lost revenue statistics published by the MPAA. Illicit copying of DVDs principlly occurs by means of copying the entire disk–no need to decrypt it at all. The disk is read verbatim and written out to a new disk exactly in the manner it first appeared.
Interestingly the Cato Institute actually published an essay on this issue. http://www.cato.org/pubs/pas/pa564.pdf Now the author doesn’t do a perfect job presenting the issues, but neither do his critics. In particular, one criticism is that ordinary computer software will not read the disk in its entirity, but the question of whether or not distributing such tools is or is not illegal goes to my earlier concern that you’ve been deprived of the right to inspect your property. Reading the entire disk literally means categorizing the reflectivity properties of the disk. But more than this, most computer DVD drives will happily read the entire disk on instruction; it’s just makers of commerical copying software who have omitted this feature.
Second it has been said that while the DMCA does not solve the problem, it does do something. This argument clearly isn’t enough because surely we must care as to whether it does enough relative to its costs.
[OK Comments: So the DMCA needs to be broader?]
Paul, I have a series of posts on our faculty blog regarding these issues (all filed in the Copyright/Technology category). My guess is that you will not like any of them, but that will give you a better developed sense of how I see the DMCA (not a copyright statute, but about creating enforceable technological contracts related to copyrighted works; those contracts set the terms of access to the work). I also have two much longer papers (though short by law prof standards (35 pages roughly)) on the DMCA and DRM at SSRN. The first is Copyright and the DMCA: Market Locks and Technological Contracts(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=690901); the second is Mistrust-Based Digital Rights Management (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899155).
First off, let me say that I have found Orin’s succinct “lukewarm defense” quite useful in my teaching. I will be assigning it again this fall.
Second, the comment about DVD’s CSS being ineffective as copy protection misses the point that the CSS is not serving as copy protection, but rather as access protection, the circumvention of which the DMCA also regulates. From the movie distributors’ standpoint, the goal is not to prevent copying, but rather to segment the market, so that they can sell the same movie at vastly different prices in different parts of the world without enterprising importers engaging in arbitrage.
This brings us squarely back to the notion of the DMCA as a rational means for the government to lend support to contracts. I find that notion plausible and to have a degree of value. However, I also find that it has two shortcomings, both of which arise in the DVD CSS context. I think Paul Allen may have been alluding to these:
(1) The contracts that the government is helping enforce may be ones that the consumer at best considers to be kooky and at worst doubts ever having agreed to. This calls into doubt the policy wisdom of the DMCA. In particular, the movie distributors claim that when I buy a DVD, I am not only agreeing to watch it in only in country A and not in country B, but also to only watch it in my living room (where I have a Windows computer) and not in my office (where I have a Linux computer). Of course, the limitation to one room of my house is accidental collateral damage, not the intended effect of the CSS, but you can see why the DeCSS croud would have doubts about the wisdom of the DMCA. Most of us grew up used to books that we can read wherever we darn well please, once we by them.
(2) Additionally, the whole contract argument seems to me to fall to pieces the moment I take the DVD I bought and give it as a gift to someone else. (Unless, that is, the contract I implicitly signed by buying the DVD forbids me from giving such a gift in the first place.) The recipient of the gift has entered into no contract with the movie distributor nor for that matter with me. Yet the DMCA is still forbidding the gift recipient from circumventing the CSS to watch the DVD in the room of her choice. Thus, the DMCA goes beyond just providing legal backup to technical backup to a contract.
[OK Comments: Max, I'm very glad you have found the essay helpful.]
An interesting related issue, based on your article, is whether such “limited use” contracts can be enforceable in paper contexts.
One example is that publishers have been trying for ages to quash the secondary market on textbooks. After all, they don’t make anything on used books.
Suppose that a publisher comes up with a warning plastered all over its new edition of textbooks:
“YOU agree that ONLY YOU will use this copy of this textbook. Resale, to a commercial entity or another individual is breach of this contract. Breaking this seal constitutes acceptance of this agreement. If YOU do not agree to these terms, return this book for a full refund.”
This, of course, is analogous to the End-User Licensing Agreements found on many software titles. Would we enforce this contract? It’s an odd concept of property, since we see books as transferrable entities, but would this era of textbook publishing be far away? Would it be enforceable?
the question of whether or not distributing such tools is or is not illegal goes to my earlier concern that you’ve been deprived of the right to inspect your property.
Paul, you can inspect your property all you want; you just can’t decrypt it. I’m not sure this violates any traditional norms about what you can do with property. There’s lots of things you can’t do with your property. You can’t take colored inks that you own, and a printing press that you own, and print U.S. currency in your basement. You can’t take the poker chips and cards that you own and run a high-stakes poker game, in most states. You can’t modify a radio scanner that you own so that it intercepts cell phone calls. You can’t take a semiautomatic rifle that you own and modify it so that it’s fully automatic. In many neighborhoods, you can’t paint your house pink or let the grass grow too long. You can’t leave the snow unshoveled on the sidewalk to your front steps. You can’t make methamphetamine from chemicals you bought legally. Etc.
The real issue here is that copy protection schemes can have undesirable side effects (from the comsumer’s point of view). Previouly common practices, such as recording mixes from a number of CD’s, may or may not be possible now. The fine print license may now allow the distibutor to install monitoring software on your computer, with consent being implied (this has happened already).
These schemes have been developed in an attempt to reduce or eliminate the fraudulent copying of DVD’s and CD’s. While this is a worthwhile goal, the law should balance this with other goals, such as permitting traditional uses, etc.
The act is a balancing act, and as Prof. Kerr points out, we still do not know how it will work out.
“So the DMCA needs to be broader?”
Pound-for-pound, traditional copyright enforcement would be more effective. But, to convince me of your suggestion you would 1) need to demonstrate the benefits outwayed the costs and 2) overcome my conservative hesitation.
“Paul, you can inspect your property all you want; you just can’t decrypt it.”
Right: then the DMCA is useless as a copyright measure. Either the DMCA permits copyright holders to prevent your being able to extract the encrypted form of the data (and so change property-right norms vis-a-vis inspection) or it does not do this and fails as an copyright protection measure. Decryption is not a precursor to copyright infringement, though it is a precursor to many forms of ‘fair use’.
“but rather as access protection, the circumvention of which the DMCA also regulates.”
Well based on some informal conversations with a few (only a few) hill staffers, I am not entirely so sure that this detail was really adequately grasped by the Congressmen at least not its implications.
“An interesting related issue, based on your article, is whether such “limited use” contracts can be enforceable in paper contexts.”
This I think is an interesting question, but it is a public policy question. What rights should copyright holders be given?
I wonder also, whether the public policy embedded in the Clayton Act enforcement in United Shoe Machinery Corp v US 285 US 451 (1922) has another perspective on this issue.
What’s interesting there is the idea that whether or not a patent is held, anti-trust law still curtails what sort of licensing criteria are permissible.