A riff on fair use in the Digital Millennium Copyright Act.

• Author: Nimmer, David

INTRODUCTION

In late 1998, the United States Congress enacted its most sweeping revisions ever to the Copyright Act of 1976.(1) Under the title Digital Millennium Copyright Act,(2) this amendment institutes radical changes, from protecting boat hulls with sui generis rights,(3) to permitting maintenance of computer systems without the consent of copyright owners whose software may, by chance, be copied in the process,(4) to mandating respect for copyright management information.(5)

The most important feature of the Digital Millennium Copyright Act institutes anti-circumvention provisions into U.S. copyright law. The details of the resulting section 1201, added to the Copyright Act, are fiendishly complicated. Even without canvassing all of the nuances, however, a philosophical issue emerges--how does this amendment affect one of the cynosures of copyright law, its fair use doctrine? A full answer would require complete explication of both the Digital Millennium Copyright Act and of the fair use doctrine of U.S. copyright law.(6) Even without such an ambitious program, some tentative steps into the terrain reveal interesting conclusions about the thrust of this massive amendment.

1. THE RIF

   As we confront questions in the waning days of the millennium regarding the public policy of access and copying, it is instructive to examine how these issues were treated at the beginning of the millennium.(7) Rabbi Isaac Al-fasi, known as the Rif,(8) lived in North Africa in the eleventh century.(9) At around the same time that William, Duke of Normandy, made headlines with his daring cross channel exploits,(10) the Rif occupied himself with a protocopyright question:(11)

   Q. A student took books of sacred commentaries from a colleague. When asked to return them, he took a strict vow not to return them until such time as he could copy them. One rabbi permits this type of taking. A. Both that rabbi and the student who took the books erred and did not act according to law. The rabbi who permitted the taking reasoned that this type of behavior is permitted, for it seemed to him that the student wanted to learn matters of Torah from the books, which qualifies as a mitzva [commanded, meritorious deed]. But he erred, for it is also written that "[a] stolen lulav [palm frond] is pasul [ritually unfit]."(12) The Omnipresent detests a mitzva that emanates from sin, as it is written, "God loves righteousness, and hates thievery in its iniquity." To unpack the reasoning of the responsum,(13) the Rif calls attention to the fact that one who wants to wave a lulav on the holiday of Sukkot is also behaving meritoriously to fulfill a mitzva.(14) That fact, however, does not give him the right to steal. Indeed, if he does steal someone else's lulav and proceeds to wave it, the stolen character of the lulav nullifies the mitzva. Precisely such nullification is the meaning, within the Jewish legal system, of something being pasul. In like measure, the meritorious intent of studying Torah cannot justify stealing someone else's book containing words of Torah because the very act of theft nullifies the otherwise meritorious character of the studying.(15)

   In this responsum, we see two points of view expressed. The Rif himself accords primacy to property ownership--he rules that the owner of the book enjoys untrammeled rights in it and is unimpressed with contrary arguments founded on public policy.(16) On the other hand, he acknowledges that his is not the only view. By expressing himself in opposition to an anonymous rabbi who ruled to the contrary, the Rif reveals that other currents swirl through these waters.(17) It bears emphasis that the nameless rabbi with whom the Rif disagrees rules, as a legal matter, that the interests in accessing the contents contained in another's goods trump the property interests therein.

   The great Sephardic rabbis of nine centuries ago were concededly vastly ahead of their contemporaries in Ashkenaz.(18) But wisdom eventually migrated from Moslem Spain to Christian Germany. In addition, a technological revolution of inestimable importance to copyright transpired in the latter locale in the fifteenth century--the invention of the printing press.(19) We therefore find similar copyright concerns radiating out to Poland in the sixteenth century.

   To appreciate the context here, we must begin with an extract from the classic compendium of Jewish law, still in use to this day: the Shulchan Aruch [Set Table] written by the great Sephardic commentator, Rabbi Joseph Karo.(20)

   One who safeguards another's Sefer Torah [parchment scroll containing the Five Books of Moses] must roll it once every twelve months [to help preserve it(21)]. If, while rolling it, the bailee reads from it, that is permitted; but he must not open it for the express purpose of reading for his own benefit, as opposed to rolling it for the bailor's benefit. The same applies to other books. If the bailee opens and reads them for his own sake, he has invaded the domain of the bailment, and is liable.(22) The standard commentary on the Shulchan Aruch used by Ashkenazim is the Mapa [Tablecloth] which was composed by Rabbi Moses Isserlis,(23) known by the acronym Rema.(24) In this context, the Rema adds the following:

   In the same way as it is forbidden to read from it, it is forbidden to copy a single letter from it. This ruling applies to the uneducated. But as to a sage, assuming he lacks that volume, he is permitted to read it and to copy from it. For such undoubtedly was the intent(25) of the bailor.(26) But in a place where Torah is lacking because books are unavailable, the tribunal can force someone to lend his books so that they can be studied, so long as he is recompensed for any wear and tear to the book that might occur in the process.(27) Here, we see a tremendous innovation. The lawmaking body,(28) according to the Rema, can intervene to remedy the lack of availability of a class of works.(29) As a systemic matter, the law can value the right of public access(30) to unavailable works more heavily than the property rights of the owners of those works. To phrase the matter in a modern idiom, when assertion of property rights would make a given class of works unavailable to the public who wishes to peruse them, then legislative redress is required.(31)

   Both the Rif and Rema were writing long before any country had enacted a copyright statute.(32) It is hardly surprising to reflect that neither was attempting to vindicate copyright interests, in the sense of protecting the rights of authors.(33) Instead, their concern is with the property owner of the book in which the author's words had been embodied. Their writings reflect the tension between members of the public who have an interest in copying works and the owner of the tangible item sought to be copied. That tension arose because the legal system at the time of the Rif and the Rema attempted to reconcile disparate goals. All the players--the Rif, the rabbi with whom he disagrees, R. Karo, and the Rema--acknowledge the value of property ownership. They also recognize, as a fundamental good within their legal system, the inherent value of access to Torah and of the dissemination of the insights of Torah. To the extent that the players might reach disparate practical results, the difference stems from the contrasting ways in which each attempts to reconcile those competing interests.

   The Rif stands for absolute property interests. Without disagreeing that there is independent value in access to Torah, he derides any notion that property rights can be sacrificed in the process. The Rif's opponent considers rights of public access as sometimes more fundamental than property ownership. Finally, there is the innovation championed by the Rema--of crafting new legal rules such that access trumps property.

   Similar goals animated discussions in Congress of the Digital Millennium Copyright Act. All of the congressional players acknowledged the value of copyright as a species of intellectual property. All equally admitted that copyright's constitutional purpose is to promote the progress of "science,"(34) i.e., of disseminating knowledge. To the extent that contending forces championed different points of view, their differences stemmed from the way in which each sought to reconcile one social good against another.

   As we will see below, the Rif's views were played out in the House Judiciary Committee when the Digital Millennium Copyright Act was first introduced. By the time that deliberations on the Digital Millennium Copyright Act had concluded, however, the viewpoint of the Rif's opponent had won universal support. Additionally, the House Commerce Committee adopted the Rema's suggested innovation early on. This point of view ultimately carried the day when the Digital Millennium Copyright Act was enacted into law. The question remains to be explored below how successfully that committee drafted the statutory language to meet its stated concern.(35)

   It is time, therefore, to move forward from the Rif and the Rema, in order to engage in an extended exploration of U.S. copyright doctrine as it has taken shape in the Digital Millennium Copyright Act. We will recur to them in evaluating the handiwork of their intellectual heirs.

2. THE DIGITAL MILLENNIUM COPYRIGHT ACT

   The millennial hope underlying the Digital Millennium Copyright Act is to bring U.S. copyright law "squarely into the digital age."(36) As part of the ceaseless struggle to keep up with constantly evolving technology,(37) this law proposes to "make digital networks safe places to disseminate and exploit copyrighted materials."(38) By creating "the legal platform for launching the global digital on-line marketplace(39) for copyrighted works," its goal is to "make available via the Internet the movies, music, software, and literary works that are the fruit of American(40) creative genius."(41)

   The primary battleground in which the...