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One of the slow-burn issues riling free speech circles these days is what to do about a nasty four-letter word: DMCA. That’s short for the Digital Millennium Copyright Act of 1998. The main uproar concerns “fair use” — that is, the ways in which people are allowed to use copyrighted materials without the owners’ permission. At its worst, the DMCA chokes off the oxygen needed to keep fair use alive. Not surprisingly, there’s been a backlash. At least three bills now pending in Congress would either roll back or spotlight the grip of the law. For some freedom-of-expression folks, gunning for the DMCA has become a sacred mission. Ironically, they might find a helping hand in a most unlikely place: a hostile Supreme Court opinion that refused to shorten the lengths of copyrights. Buried in the depths of the January decision Eldred v. Ashcroft is a possible signal that the Court hasn’t forsaken the information freedom fighters. Eldred, in a majority opinion by Justice Ruth Bader Ginsburg, brushed back an attempt to declare unconstitutional the Sonny Bono Copyright Term Extension Act. That law lengthened the already unseemly amount of time that copyright owners can claim legal protection for their work. Most copyrights now run for the author’s lifetime plus 70 years. Those challenging the Sonny Bono Act made two arguments. First, they contended that the Constitution’s copyright clause doesn’t let Congress extend copyright protections for works that have already been created. And second, they claimed that the extension violates the First Amendment by unreasonably limiting the amount of expression to which society has free access. The Supreme Court didn’t buy it. The arguments proved too much — taken literally, they might knock down every copyright extension since the first Congress. Maybe they would have worked in the 19th century, but not in the 21st. Justice Ginsburg made especially short work of the free speech claim. She wrote: “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make others’ speeches.” That could have been the end. But Justice Ginsburg had more to say about freedom of expression. Referring to previous Supreme Court decisions, she wrote that “copyright law contains built-in First Amendment accommodations.” She noted that the fair use defense permits public use of copyrighted “expression itself in certain circumstances.” And she wrote that “when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” Now why did she say that? The answer might prove a silver lining for those challenging copyright law, and a thunderclap for those trying to armor-plate it. LET’S BE FAIR The 1976 Copyright Act, which is the foundation of modern copyright law, doesn’t only provide for protecting copyrights; it also spells out when the public can use the stuff in spite of copyright protection. The most important exception is fair use. The concept of fair use was actually created before 1976, by judges who read it into copyright law. But now it’s codified in Title 17, Section 107 of the U.S. Code, which states that using copyrighted works “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement.” While the fair use doctrine developed without explicit reference to the First Amendment, it clearly alludes to the importance of freedom of expression. As Justice David Souter wrote for the Court in Campbell v. Acuff-Rose Music Inc. (1994), the fair use doctrine “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” But what does fair use have to do with the issue in Eldred? Actually, not much. And that’s the point. My hunch is that Justice Ginsburg brought up fair use — and the links between free expression and copyright, and the importance of Congress’ respecting “the traditional contours of copyright protection” — as a way to show that the Supreme Court sees fair use as an integral aspect of free speech. And it’s also my guess that the Court was signaling that it won’t protect technological end runs around fair use. NO HACKING ALLOWED That’s essentially what the DMCA has accomplished through its anti-circumvention provisions. Under Section 1201(a)(1)(A) of the statute, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” In essence, no hacking allowed. Now, that creates a huge conflict between fair use in theory and fair use in practice. Because if you want to take a digitally protected book or song or movie and make any number of fair uses of it, well, you probably can’t. No backup copies. No excerpting for multimedia presentation. At least, not without breaking the encryption. And you probably can’t do that without breaking the DMCA. To be sure, the DMCA doesn’t claim to eviscerate fair use. In fact, it contains an explicit exception: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” Unfortunately, that doesn’t solve the problem. A string of cases have been brought against people for violating the DMCA by hacking and distributing hacking code. No doubt, they enabled people to use copyrighted material in illegal ways. But the remedy of stuffing an electronic sock in the hackers’ mouths keeps everyone from doing perfectly legal things. One court case gives a particularly vivid example of how the DMCA works to functionally defeat fair use. A RIGHT OF FAIR BREACH In Universal City Studios Inc. v. Reimerdes, a 2000 case out of the Southern District of New York, the question was whether a Web site distributing the code to crack DVD protection was in violation of the DMCA. Specifically, the defendants posted and linked to code that would strip the encryption from DVDs. The site’s sister print publication had also run articles on (to quote U.S. District Judge Lewis Kaplan) “such topics as how to steal an Internet domain name, access other people’s e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores and Federal Express.” That said, the defendants’ postings were, after all, speech — they communicated information to others. Further, others could have used the code for purely fair use ends. Judge Kaplan nodded his head to fair use. Then he wrote, “The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress’ decision contravenes the Constitution.” (The judge decided that it didn’t.) The judge is implying that the DMCA lets you hack protected technology for fair use purposes. But you have to do the hacking, and you have to conjure up, all by your lonesome, the code that lets you do it. Only computer geniuses need apply. There’s more. The 2nd U.S. Circuit Court of Appeals affirmed. It wrote, “Asserting that fair use ‘is rooted in and required by both the Copyright Clause and the First Amendment,’ the Appellants contend that the DMCA … unconstitutionally ‘eliminates fair use’ of copyrighted materials. We reject this extravagant claim. Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required.” Well. This case was never heard by the Supreme Court. But maybe Justice Ginsburg wishes that it had been. Look again at what she wrote in Eldred — that the Court would not strike down a copyright law where “Congress has not altered the traditional contours of copyright protection.” Now look at what Georgetown law professor Julie Cohen has argued: that “a ‘right of fair breach’ is meaningless unless it includes a right to effectuate the breach — a right to hack the digital code” that otherwise prevents fair use. Making a right “meaningless” hardly seems a sign of respect. So Eldred was a loss: It let the Sonny Bono Act extend the quantity of copyright protection. The DMCA does something different: It tries to toughen the quality of copyright, by giving owners more thorough protection than they previously had. Justice Ginsburg brushed off concerns about copyright quantity. But as to copyright quality, she seems to have opened the courthouse doors for the information freedom fighters to come storming back in. Evan P. Schultz is associate opinion editor at Legal Times . His column, “Controversies & Cases,” appears regularly.

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