an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is the Digital Millennium Copyright Act Unconstitutional under Eldred v. Ashcroft?
In an earlier post, I strongly criticized the Supreme Court’s First Amendment analysis in Eldred, arguing that the first amendment issues were not well thought out and that the Court seemed so preoccupied with the Copyright Clause that it dismissed the First Amendment issues as an afterthought. But anyone who understands the important connections between the free speech principle and the public domain should also understand that there is no way you can resolve the First Amendment issues in the case simply, or without making new law, and if you don’t pay careful attention to the larger picture, even what appear to be the simplest and most uncomplicated statements of law will have all sorts of unintended side effects.
As a lawyer and legal scholar, it’s my job, when confronted with decisions I don’t particularly agree with, to make lemonade out of lemons-- to see how the court’s reasoning might apply to future cases in ways I do approve of. And after thinking about Eldred’s First Amendment analysis, it seems to me that the Supremes have made new law that puts the DMCA into question.
The key holding of Eldred is that “when ... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” The reason for this is that fair use and idea/expression provide “built-in free speech safeguards,” which “are generally adequate to address” the problem that copyright makes reproducing certain speech illegal. Slip Op. at 31. According to Justice Ginsburg, alteration of time limits in the CTEA does not “alter the traditional contours of copyright protection,” presumably because “limited monopolies are compatible with free speech principles” Slip Op., at 28, as long as they are limited and as long as the traditional contours of fair use and idea/expression distinctions remain in place. It’s unclear whether Ginsburg means to say that any copyright term extension short of perpetuity would raise no first amendment issues, as long as fair use and idea/expression are not touched, or whether she is just saying that the CTEA isn’t a very significant extension in the larger scheme of things. But either way, she does seem to rest first amendment protection on two other elements of copyright law: fair use and idea/expression.
Well, what happens if Congress decides to “alter the traditional contours of copyright protection,” by greatly restricting fair use, or begins to offer protection to ideas in the guise of protecting mere expression? In that case, “further First Amendment scrutiny” would be necessary. If Ginsburg does not mean this, then its hard to see what her argument amounts to other than a blank check to Congress to rewrite copyright law any way it wants.
And that brings us to the DMCA. As many people know, the Digital Millenium Copyright Act creates a new species of intellectual property protection, sometimes called “paracopyright,” that protects not copying itself but the creation of various devices and technologies that might be used to facilitate copying by circumventing copyright management devices. The DMCA prohibits the distribution of technologies that circumvent copyright management devices, and the Second Circuit has held that it reaches even linking to sites where such technologies may be found. Moreover, the DMCA protects copyright management devices from circumvention even if these devices are employed deliberately to prevent people from using copyrighted materials in ways completely consistent with fair use.
Does the DMCA “alter the traditional contours of copyright protection”? Yes, it does, in two respects. First, it creates a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. Second, it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. Congress has exceeded the traditional boundaries of copyright protection, superimposing a new form of intellectual property protection that undermines the “built-in free speech safeguards” crucial to the holding in Eldred. Hence, under the logic of Eldred, the DMCA is constitutionally suspect.
Three caveats about this argument.
First, do I think that the Supremes understood the consequences of what they were doing when they wrote the words “traditional contours of copyright protection”? No, because as far as I can tell, they are pretty much clueless about the interface between first amendment law and intellectual property and how that interface has been affected by the new information technologies. I specifically include Justice Ginsburg in this, even though she is related to one of the foremost copyright scholars in the United States. By defending extended terms on the theory that fair use and idea/expression were effectively held constant, they opened themselves up to the argument that fair use and idea/expression have not been held constant, and that they won’t be held constant in the digital age. That’s why I think they were clueless. But they said it, and now we have to live with what they said, and for those of us who think the DMCA is a bad statute, Eldred creates a new argument for its repeal or for a constitutional challenge.
Second, as Bill Clinton would say, it all depends on what you mean by the word “traditional.” If the notion of “traditional” has any teeth to it, paracopyright is not traditional. If you say there is long tradition of giving media interests anything they want in the copyright field no matter what, then I guess paracopyright is as traditional as any other form of politically sanctioned protection of corporate interests. A more plausible response, I think, is that the idea of “traditional copyright protections” is a bad test for the digital age. It can't be the right way to assess the first amendment values at stake, and it’s as short sighted as the notion that only traditional public forums– streets and parks– deserve first amendment protection in an age of television, cable, and the Internet. But that’s an argument for why Eldred was wrongly decided in the first place.
Third, the fact that the DMCA is subject to first amendment scrutiny under this argument does not mean that it necessarily falls. But I think there is a strong argument that if you take seriously the logic of Eldred, it must fall. Copyright has both temporal aspects-- length of copyright term-- and horizontal aspects– scope of rights at any one point in time. Ginsburg’s opinion suggests that you can expand copyright protection temporally as long as you don’t mess with the horizontal aspects that preserve free speech interests. Congress clearly did mess with those horizontal aspects in the DMCA, and so, under the logic of Eldred, it infringed on the “built-in free speech safeguards” of copyright law.