The digital millennium copyright act and the first amendment: how far should courts go to protect intellectual property rights?

• Author: Schley, Glenn M.
• Position: Law overview - Report

Federal courts are currently upholding the newly tested Digital Millennium Copyright Act of 1998 (1) ("DMCA") on challenges that it violates freedoms of expression protected by the First Amendment. (2) The powerful players in the entertainment industries enjoy judicial support for now, but may look to their opponents' discoveries to find an avenue to future success.

1. INTRODUCTION

   Digital technology has made it much more difficult to protect a copyrighted work from infringement. Digital media allows copies to be made without deterioration in quality and increases transportability over the Internet, where it can be made available throughout the world. (3) The major players in the copyright industry are making strides to keep up with advancing technology and they are armed with the DMCA at their side. The validity of the DMCA is at issue in this Note.

   In 1976, Universal City Studios, copyright owner of television programs broadcasted on public airwaves, sued the Sony Corporation of America and the manufacturers of a newly developed video tape recorder, alleging that their distribution of copying equipment violated their rights under the Copyright Act through contributory infringement. (4) After Sony prevailed in the United States District Court, (5) the Ninth Circuit granted Universal City Studios relief on Appeal (6) and the United States Supreme Court decided the issue in 1984. (7) In what seemed to be a major blow for the copyright industry, the Court held that the production and sale of the video tape recording device was not contributory infringement.

   In the aftermath of the Sony decision, (8) the copyright industry adapted to the changing technologies and developing markets. Considerable and unforeseen profits sprouted from the business of video rentals and sales. (9) By losing their initial fight, copyright owners discovered a new avenue for creating profits.

   A more recent example of industry adapting to changing technologies involves music file sharing over the Internet. In March of 2002, the United States Court of Appeals in the Ninth Circuit upheld an injunction in an action brought by record companies and music publishers against Napster. (10) The record industry is still fighting the battle against file sharers. (11) They filed 261 law suits on September 8, 2003. (12) If the record industry loses their battle, they may learn from the technology created by their adversaries to find the next new market for their products just as the film industry has done with videos.

   The DMCA extends copyright protection from the infringing act to the act of gaining access to the protected work. To override digital copyright protection, a programmer may write a computer code that is capable of breaking down the protection. The DMCA arguably regulates the writing and use of this code. The code itself has been found to be protected expression under the First Amendment. (13)

   We will see how a balance exists between copyright protections and freedoms of expression and how both strive for common goals. The matter at issue here will depend on the level of scrutiny that courts may give to particular code under a First Amendment analysis. The level of scrutiny will be determined by the classification of code as either pure speech or expressive conduct. This Note examines this First Amendment issue in the context of the major motion picture associations' fight against programmers that have broken down the digital protections of DVDs.

2. THE GENTLE BALANCE BETWEEN THE FIRST AMENDMENT AND COPYRIGHT PROTECTION

   1. First Amendment Protection

      The First Amendment to the Constitution explicitly prohibits Congress from making any law that will abridge one's right to free speech. (14) Several different rationales back the freedom of expression encompassed in the First Amendment. In Abrams v. United States, (15) Justice Holmes expressed, in dissent, that the best filter for the truth occurs when thoughts are allowed to enter freely into the common market of ideas. (16) Professor Thomas I. Emerson endorsed the ideology that free speech in itself fosters the human potential. (17)

      The Supreme Court has broken government-imposed restrictions on speech into two major categories, which determines what type of scrutiny the restriction on that speech will receive. (18) The Court categorized the restrictions as either content-based or contentneutral. (19) Content-based speech that is analyzed under strict scrutiny and speech that is content-neutral receives less scrutiny or intermediate scrutiny. (20)

      State acts regulating the subject matter of an expression or the communicative impact of speech is considered content-based. (21) For example, an ordinance was deemed content-based because it banned all demonstrations near a high school unless they were predominantly peaceful. (22) The Court reasoned that the statute was picking and choosing the content of speech that they were allowing near the high school because it allowed only the peaceful demonstrators to picket. (23)

      Government legislation that regulates content-based speech is presumptively invalid. (24) In order for the government to regulate the content of speech, it must prove that such legislation is narrowly tailored to serve a compelling government interest. (25) The government may regulate speech based on its content if that speech incites immediate lawlessness, (26) is obscene or pornographic, (27) or is characterized as "fighting words." (28) Regulations curbing such speech do not violate the First Amendment. (29)

      The Court gives less scrutiny to state actions that regulate speech without regard to its content. (30) An example of a content-neutral regulation on speech is a city ordinance that outlaws making loud noises in the street at night. (31) Such a regulation does not reflect the communicative aspect of the speech. (32) The ordinance solves the problem of loud noises at night, regardless of the content the noises convey. (33) Government legislation regulating speech that is contentneutral must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." (34)

   2. Copyright: The Idea/Expression Dichotomy

      As the First Amendment promotes the free flow of ideas, copyright provides an incentive that procures the advancement of creativity in the arts and sciences. (35) The United States has sought to protect societal interests in the promotion of social and technological advancement. (36) As a result, the framers of the Constitution gave Congress authority to protect a citizen's creative works and authored expression. (37)

      Works protected by copyright traditionally transcend literary and artistic expression. (38) To merit protection, the work must be fixed in a "tangible medium of expression." (39) Copyright duration is the life of the author plus 70 years and in the case of works created by an employee of an entity, so-called works for hire, the duration of the protection is 95 years. (40)

      Once copyright protection is established, the owner has a bundle of certain exclusive rights. (41) The copyright owner possesses a monopoly over the reproduction, modification, distribution, public performance, and public display of their works, subject to certain exceptions. (42) One might wonder how there are so many different depictions of the same historical events or fabled stories. The answer is that copyright protection is given only to "the expression of an idea" and "not the idea itself." (43)

      Congress codified unprotected expression at section 102(b) of the Copyright Act as follows, "[i]n no case does copyright protection for an original work of authorship extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." (44) This dichotomy between the expression of the idea and the idea itself alleviates the pressures that develop between copyright and the First Amendment. (45) An author's publication is protected from unauthorized copying and distribution, but the ideas and facts that are being expressed may be imitated without infringement. (46) Copyright protects the way or manner that an author expresses an idea, but the First Amendment protects the right for anyone to express the idea as he or she chooses. (47)

   3. Fair Use

      The Fair Use Doctrine represents an exception to the exclusive rights of the copyright holder. (48) Under fair use, protected works may be copied, publicly displayed, sold, or modified for teaching, researching, criticism, or reporting. (49) Fair use is an affirmative defense to copyright infringement. (50) Section 107 of the Copyright Code (51) sets forth the following factors that must be weighed in determining the applicability of the defense: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion of the work used; and the effect that such use has on the market for that work. (52) If a possible infringer relies upon fair use as a defense, the court must consider whether the use was for commercial gain, whether the use involved the entire work or a part of it, and whether the use substantially damaged the copyright holder's ability to market or make a profit from the work. (53)

      Due to the nature of the Fair Use Doctrine, many believe that the doctrine alleviates copyright infringements on First Amendment protections where the idea/expression dichotomy cannot. (54) There is an overlap between the interests of First Amendment protection to stimulate spreading ideas (55) and the basis in copyright to encourage the creation of new artistic endeavors. (56) When the two interests meet, fair use will often allow copyrighted works to be disseminated when done for a productive purpose. (57) For instance, copyrighted work may be available for reporting, teaching, and study when it otherwise would be...