JB

Orin Kerr argues that there can't be a First Amendment right to fair use because fair use is an affirmative defense:

As I see it, the problem is that an affirmative defense only works in conjunction with its corresponding cause of action. While the Constitution may require an affirmative defense to liability under a specific cause of action, we don't normally speak of someone having a "right" to do the act just because a particular law would not (even could not) punish it. Consider the insanity defense in criminal law, which, like fair use, is generally treated as an affirmative defense that excuses liability. Some courts have held that the insanity defense is required by the Due Process clause, and that legislative efforts to abolish the insanity defense are unconstitutional. See, e.g., Finger v. State, 27 P.3d 66 (Nev. 2001); State v. Straburg, 110 P. 1020 (Wash 1910). However, we don't talk about having Due Process rights to commit crime while insane. That would be pretty odd, in fact; imagine a defense attorney claiming that a prison sentence violated his client's constitutional rights by incapacitating his client and therefore making it impossible for him to commit crimes that would then be excused by the insanity defense. The trick is that although the Due Process clause may require a state to have an insanity defense, that does not mean that the law has to otherwise allow acts that if committed would fall under the insanity defense. At a conceptual level, I think the right to fair use is similar. It may be that the First Amendment requires a fair use defense to copyright infringement. As I see it, this does not necessarily mean that the First Amendment invalidates any other law (such as the DMCA) that prohibits acts that would constitute (or at least lead to) protected fair use.

With respect, I think Orin is mistaken. Here's why:

Defenses in criminal law can be either justifications for actions or excuses for actions. Insanity and duress are excuses. Necessity or self-defense are justifications. Orin is right that we do not say that a person has a right to commit a crime while insane, but that is because insanity is an excuse, not a justification. The defense of insanity excuses conduct that would otherwise be culpable and therefore illegal. But we do say that people have the right to act in self-defense, or in cases of necessity, because self-defense and necessity are justified whether or not the law makes a certain act (like murder) a crime. The fair use defense is a justification for allowing people to make copies and distribute them in certain cases; it is not an excuse for otherwise wrongful conduct that a person couldn't help.

Why is fair use justified? Because of important policy considerations that intersect with first amendment values. Fair use allows people to engage in important forms of public discourse, and engage in creative transformations and commentaries on existing speech, and in this way it helps promote the growth and spread of knowledge.

A comparison to defamation may help clarify the point further. At common law, people had a privilege of fair comment, which was a defense to an action for defamation. They also had a defense of truth. The defenses of truth and fair comment were justifications, not excuses. The reasons why people are justified in making fair comments and in making true albeit defamatory statements are related to key free speech values. When the Supreme Court constitutionalized the law of defamation in New York Times v. Sullivan and later cases, it created additional constitutional privileges that also promoted free speech values. These privileges are justifications, not excuses; they recognize rights to speak that should exist regardless of the substantive content of defamation law. The defense of fair use in copyright law is much like the defense of fair comment in defamation law. Indeed, the First Amendment argument for limitations on copyright is structurally similar to the First Amendment argument for limitations on causes of action for defamation: If private rights (of reputation or intellectual property) are given too much protection, they will stifle too much valuable speech.

Note that this explanation is consistent with Eldred v. Ashcroft. In Eldred Justice Ginsburg stated that as long as Congress does not interfere with traditional contours of fair use, there is no First Amendment problem with copyright extensions. The First Amendment problem arises if government alters or severely limits the traditional contours of fair use, because fair use is justified activity that promotes free speech values.

This brings me back to the DMCA. The First Amendment argument against the DMCA is actually a little trickier, and that may be what leads Orin to see a potential problem in the argument. The argument is that if (for example) one purchases a DVD, one has a First Amendment right to gather certain information from it and transform it into other information, as long as this is done for otherwise justifiable purposes. The DMCA is unconstitutional because it makes it a crime to circumvent a technology that prevents these justified forms of information retrieval and transformation.

If there is a problem with this First Amendment argument, it is not Orin's objection, that fair use is a defense. The problem comes in proving that there is a First Amendment right to gather and transform information that is protected by a copyright management scheme if the government has legitimate reasons for protecting such schemes from circumvention. The government will defend the DMCA on the ground that the government's purpose is not to prevent fair use but to prevent piracy, and therefore the DMCA poses only an incidental burden on free expression that passes the O'Brien test-- i.e., that the regulation reasonably serves a legitimate government purpose that is unrelated to the supression of free expression. In order to make the First Amendment argument against the DMCA, one must show that the incidental restriction on freedom of speech that the law imposes is too severe. As I have argued in a previous post, Eldred actually helps you make this argument. Because the DMCA alters the traditional contours of fair use by allowing private parties to do a technological end run around traditional fair use doctrines, it abridges what Justice Ginsburg called the “built-in free speech safeguards” of copyright law, and therefore violates the First Amendment.