The fallacy that fair use and information should be provided for free: an analysis of the responses to the DMCA's section 1201.

• Author: Espana, Mauricio A.
• Position: Digital Millennium Copyright Act

INTRODUCTION

The Framers of the Constitution believed that the advancement of the arts and technology were very important to the growth of society. (1) Thus, in 1787, they adopted the Copyright Clause to the Constitution to give Congress the power to enact copyright regulations in order "[to] Promote the Progress of Science and useful Arts." (2) Both the copyright and the scientific world in which framers lived, however, has changed dramatically. Likewise, the Copyright Act has evolved and adapted to changes in technology and society. (3)

It should surprise no one that at the end of the twentieth century Congress has once more revised the Copyright Act. (4) During the latter end of the twentieth century, the world encountered the most drastic change in our way of life since the industrial revolution. This change was brought about by the emergence of the digital revolution, more specifically, digital information, computer networks, and the Web. (5) This novel and innovative technology now permeates every aspect of peoples' lives including copyrighted works, and has provided enormous benefits in terms of convenience, productivity, and quality. Moreover, because digital technology is fast evolving and revolutionary, the potential benefits to every aspect of peoples' lives are immeasurable.

The same characteristics that make digital technology and digital copyrighted works beneficial, however, also contribute to their susceptibleness to piracy and unauthorized exploitation. (6) This danger to copyrighted works has the potential of regressing the advancement and progress of science and the arts, and adversely affecting the affluent copyright and e-commerce industries that have developed. (7) The potential for this calamity was recognized by the one hundred and sixty nations, including the United States, that participated in the World Intellectual Property Organization ("WIPO"), (8) which convened to amend the Berne Convention, (9) the international copyright treaty that the United States adheres to, in order to recognize copyrights in digital works. (10)

These nations were well aware of the effect that piracy and unauthorized exploitation would have on copyrighted works if they did not protect them. (11) Accordingly, they signed and ratified two treaties aimed at protecting copyrighted works by prohibiting the circumvention and creation of tools made for the purpose of circumventing Technological Protective Measures implemented by copyright owners to protect their works. (12)

In 1998, the United States, a signing member of the WIPO treaties enacted the Digital Millennium Copyright Act ("DMCA") (13) in order to bring "copyright law squarely into the digital age." (14) Its relevant and most controversial section is Title One, "WIPO Treaties Implementation," which contains 17 U.S.C. [section] 1201. (15) Section 1201 implements the WIPO treaties by prohibiting the circumvention and creation of tools to circumvent copyright owners' Technological Protective Measures. (16)

Legal commentators did not welcome the implementation of the WIPO treaties through [section] 1201. (17) These commentators claim that [section] 1201 will have the adverse effect of hindering or abolishing both fair use, (18) and the copyright balance, by creating a "pay-per-use" world where the public will have to pay for all uses of copyrighted works, including fair use. (19)

This Note argues that [section] 1201 is not only necessary to ensure that copyright law is able to progress and advance in the digital revolution, but more importantly, that the protection of copyrighted works will benefit the public in ways the analog (20) world cannot. It also argues that legal commentators' fears about [section] 1201 are misplaced.

The real danger to fair use and the copyright balance stems from the National Conference of Commissioners on Uniform State Laws' ("NCCUSL") adoption of the Uniform Computer Information Transactions Act ("UCITA"). (21) UCITA's danger emanates from its two main effects. (22) First, its provisions provide copyright owners with the ability to condition the licensing of all copyrighted works on any terms, including the forfeiture of fair use and other privileges and rights. (23) Second, they validate and enforce ProCD, Inc. v. Zeidenberg's (24) "shrink-wrap" contracts. (25)

Part I of this Note discusses copyright's background, including the genesis of copyright law, the evolution of copyright law including the DMCA, (26) and ProCD, Inc. (27) and its progeny.

Part II explores the controversy and debate within the legal community regarding the implications of the DMCA's [section] 1201. (28) First, Section A explores the arguments in opposition to [section] 1201, including the unbalanced pay-per-use world argument, the First Amendment/democratic paradigm argument, and the market failure theory argument. Section B then elucidates the main argument from commentators supporting [section] 1201. Section C discusses the argument that UCITA stands to adversely affect fair use and the copyright balance.

Finally, Part III argues that [section] 1201 is not only necessary and beneficial, but also does not adversely affect fair use and the copyright balance.

1. BACKGROUND

   1. Genesis of Copyright Law

      The genesis of Anglo-American copyright law was motivated by a desire to censor divergent views, but in effect, the English Crown provided an exclusive publishing monopoly. (29) Its impetus, however, eventually became the protection of authors' works. (30) The first copyright regulation, the Statute of Anne, enacted in England in 1710, provided authors with limited protection for their works. (31) Parliament enacted this Act to further the "encouragement of learning," (32) and to encourage "Learned Men to Compose and Write useful Books." (33)

      In 1787, after the majority of the American states had enacted copyright laws, the Framers of the Constitution adopted the Copyright Clause, providing the federal government with the right to pass laws on copyright in order to create a uniform regulation. (34) As evident from the clause's language, the Framers, like Parliament before them, intended to further science and learning by providing authors and inventors with an economic incentive. (35) Three years later, Congress used its constitutional empowerment to enact the Copyright Act of 1790 protecting maps, charts, and books for a period of twenty-eight years. (36) As America encountered changes in technology and market forces, however, Congress repeatedly exercised its power to amend and revise the Copyright Act. (37)

   2. The Creation of Fair Use and the Copyright Balance

      Although copyright law provides copyright holders with broad and powerful monopoly rights as an incentive to create, allowing these rights to be absolute and unhindered would destroy the balance between the private and public interests of copyright law. (38) Accordingly, to maintain this balance, Congress included many limitations to copyright owners' exclusive rights. (39) Although Congress enacted many such limitations by statute, most are categorical and limit a judge's role to that of determining whether an action fits within any of the enumerated exceptions. (40) These limitations alone, however, are insufficient to balance copyright law's public and private interests (41) because there has and will be many instances not specifically enumerated by Congress where reason and fairness shall dictate that a specific use of a copyrighted work cannot be considered a copyright infringement, while simultaneously being consistent with the Copyright Clause's purpose and mandate. (42) Accordingly, courts have developed the doctrine of "fair use" a judge made equitable rule of reason that attempts to fill the gap between copyright's public interest in providing authors with an incentive and the Constitution's private interest in promoting "the Progress of Science and useful Arts." (43) The ultimate test of fair use is whether "the Copyright Act's goals of encouraging creative and original work would be better served by allowing the use than by preventing it." (44) Due to its flexible nature and dual function as bridge and safety valve--which allows courts to use it when they deem fairness requires--fair use's major problem and benefit has been its inconsistency and indeterminacy. (45)

      In 1976, Congress acknowledged fair use's significance and codified it as section 107 in the 1976 Copyright Act. (46) Congress' intention was merely to restate the common law doctrine, by neither changing, narrowing, or enlarging it, so as to leave courts "free to adapt the doctrine to particular situations on a case-by-case basis." (47) As a result, although 17 U.S.C. [section] 107 contains four enumerated factors to determine whether an action constitutes fair use, (48) courts have continued to apply fair use inconsistently on a case-by-case basis, justifying this practice on varying grounds of equity and fairness. (49) Although there are no determinative categories of fair use, several significant ones have nonetheless developed. (50) Of these categories, fair use of utilitarian works and uses made for research and academic purposes are most relevant to this Note. (51)

   3. The Evolution of Copyright Law

      1. Evolution Caused by Market Failure and Technological Innovation

         >From its onset, copyright law was motivated and driven by new and emerging technologies and modern conditions. As previously mentioned, Britain and the United States were initially stimulated to enact copyright regulations to protect authors' works from unrestricted copying, and to provide them with an economic incentive to continue creating and disseminating. (52) The "Market Failure" theory best explains this original stimulus; it asserts, "[c]opyright law arose as a response to the market's failure to protect expressive works." (53) In keeping with its original impetus, at the beginning of the twentieth century, President Theodore Roosevelt...