What began as an attempt to challenge the constitutionality of the DMCA’s terrible anticircumvention provision has now backfired. A court ruling will limit our rights to fair use and free expression in favor of Hollywood’s ability to lock stuff down with digital locks.
It’s not great.
I had thought we had gotten past the era when courts would deal with copyright cases by accepting the Hollywood copyright extremist position — that without copyright nothing at all would ever get published — as fact. But the DC Circuit appeals court has done exactly that, in a case that wasn’t even suggesting that copyright should go away, just that fair use should be applied to all of it.
The DC Circuit appeals court has now rejected a challenge to the DMCA’s Section 1201 (the anti-circumvention bit) based on how it suppresses First Amendment-protected speech.
This case goes back a ways. Eight years ago, the EFF filed a lawsuit challenging Section 1201. The lawsuit represented security professor Matthew Green and hardware hacker Bunnie Huang. It said that Section 1201 was chilling their speech in preventing them from doing the kind of work they wanted to do.
A big part of the argument was that even though the government has its ridiculous triennial review process, in which the Librarian of Congress gets to designate specific uses that are exempt from 1201, there is no fair use defense for 1201 violations. And, since the Supreme Court has long argued that fair use is the important “safety valve” that makes copyright law compatible with the First Amendment, the lack of fair use here suggests that 1201 might be unconstitutional.
There was more to the argument, but that was the crux of it. The case has bounced around the courts, with parts of it getting dismissed and parts of it being allowed to proceed.
And that brings us to the ruling last week. The panel from the DC Circuit readily admits that copyright law and the First Amendment are “in tension,” but says they’re mostly in alignment in promoting the creation of new works. It recognizes that fair use has been deemed to be an important safety valve here as well:
That said, to avoid impeding robust expression, courts have long recognized a common-law doctrine of “fair use” that implies an “author’s consent to a reasonable use of his copyrighted works” by other speakers
It also notes that because fair use is judged on a case-by-case basis, it’s often unclear to speakers whether or not they’re truly protected:
Fair use plays a key role in striking a balance between expression and prohibition in copyright law. But because the line between uses that are fair and those that are infringing eludes crisp definition, creators relying on fair use as a defense against claims of copyright infringement inevitably face some uncertainty. Courts determine case by case whether use of a copyrighted work constitutes fair use, sometimes based on subsidiary factual determinations made by juries. See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 23-26 (2021). Indeed, the Supreme Court has described reliance on a “potential fair use defense” as a “roll [of] the dice,” subjecting the user of copyrighted material to a “notoriously fact sensitive” analysis that typically cannot be resolved “without a trial.” Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020).
You might think that a statement like this bodes well for the challenge to the law here, in which fair use isn’t even an option. Here, the court is already admitting to the chilling effects of unclear boundaries on fair use:
That uncertainty risks chilling some privileged speech
But, the court then shifts and basically presents Hollywood’s line about the importance of robust copyright protection against the plebes and their fair uses. It explains the history of 1201 (which was demanded by Hollywood in order to support the wider DMCA and its notice-and-takedown provisions). Unsurprisingly, the court leaves out the history, which is that Congress originally rejected the DMCA. This led the copyright maximalists to run to Geneva and get DMCA-like provisions included in an international treaty, so they could run back to Congress and tell them they had to pass the DMCA to “meet their international obligations.” But… details.
From there, we get a bunch of scary quotes from the court, arguing that fair use is not, in fact, protected by the First Amendment:
In plaintiffs’ view, a mismatch in protection for fair use under traditional copyright law and under the DMCA renders the latter unconstitutional. They assert that all fair use is protected by the First Amendment, so section 1201(a) cannot validly prohibit circumvention by individuals for the purpose of making fair use of copyrighted works. And they argue that Congress’s explicit attempt to build fair-use accommodations into section 1201(a) via the triennial rulemaking process merely compounded the First Amendment injury: In its effort to alleviate the Act’s burden on fair users, plaintiffs contend, Congress transformed the Librarian of Congress into a censor who wields broad discretion to grant exemptions to favored messages and speakers.
Key to plaintiffs’ theory is their view that fair use of copyrighted work is necessarily protected by the First Amendment. We later explain why that assumption is erroneous, but it is worth considering at the outset what it would mean for plaintiffs’ theory if true.
Saying that fair use is not protected by the First Amendment… seems problematic. The Supreme Court had made it clear in earlier cases, like Eldred, that other challenges to copyright failed almost entirely because of the existence of fair use. For the DC Circuit to now say that fair use isn’t really about the First Amendment seems to be taking a huge step backwards for free speech.
And to get there, the panel gets a lot of stuff backwards. It suggests that if it were true that such users were fair use, then the triennial review for exemptions would be “redundant” because why would anyone need the exemptions if they were protected by fair use. But that gets everything wrong. First, not all uses exempted under the triennial review would be considered fair use. And, second, the value of the triennial review is it makes it clearer which uses are exempted unlike fair use (as the court has already admitted) which involves having to go through an expensive trial to figure it out.
Bizarrely, the court takes this point to support the argument against fair use. They say that fair use is too risky, but the triennial review is clearer:
An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself. Recall that the Supreme Court has referred to the use of copyrighted materials under the protection of a “potential fair use defense” as a “roll [of] the dice.”
But that gets it backwards again. The fact that the triennial reviews make some stuff clear, while leaving other uses to be fought out as fair use does not mean that fair use should not apply. Indeed, it seems like an even bigger reason as to why we need fair use.
The court seems wholly confused in suggesting that anyone is arguing that any use for violating 1201 is deemed fair use, which is not something anyone is arguing.
More fundamentally, if appellants were correct that the First Amendment protected circumvention undertaken for fair use ends, then section 1201(a)’s regulatory exemptions would simply serve as an additional layer of protection for fair users, providing up-front confirmation to those fair users who fall within the scope of the exemptions that their circumvention is permitted. What is more, even as to actions not covered by a DMCA statutory or regulatory exemption, under plaintiffs’ view, the filmmaker would have a First Amendment right to circumvent: She would be free to take her chances by circumventing and proving that her use of the clip is fair use and thus constitutionally protected. So it is hard to see how, under plaintiffs’ view of the law, section 1201(a) operates to chill speech.
This makes no sense and seems to fundamentally confuse nearly all of the issues at play here. This is one of the most confused decisions I’ve seen regarding the intersection of the First Amendment and copyright.
From there, the court drifts into copyright maximalist tropes, including the idea that copying is a form of theft:
The “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property—a modern form of theft.
But, it’s not. Not even remotely. Anticircumvention is just getting around a digital barrier which is not equivalent to “theft” in any sense. It does not lead to anyone “losing” anything they own at all. All it does is allow someone who does possess the work to make use of it.
There are also other oddities:
The First Amendment protects a right to read, but it does not grant unimpeded access to every reading material a reader might wish for. Similarly, the First Amendment does not guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression. To hold otherwise would defy the First Amendment’s solicitude of speakers’ control over their own speech. See Harper & Row, 471 U.S. at 559 (noting that copyright serves the First Amendment value of the “right not to speak”).
Yes, the First Amendment includes the right not to speak, but that is not even remotely implicated by saying that fair use is allowed. Fair use does not force someone to speak who doesn’t wish to speak. So this seems wholly unrelated to the issue at hand. Indeed, I’m confused as to how the panel could possibly think that fair use is the equivalent of forcing someone to speak. That shows an extremely problematic understanding of “speaking.”
And then we get into the even more ridiculous and long-disproved tropes: that without strict copyright protection, nothing new would be published.
If every work that the public might wish to access “could be pirated away” via circumvention, soon nothing worth reading would be published electronically.
Someone alert Shakespeare that his works were impossible since they were created in the days before copyright law. There are many non-copyright law business models for which they did not need copyright to produce them. Everything I write here is released into the public domain, yet this court seems to think that’s impossible, and that copyright is the only possible incentive to create something “worth reading.”
But, even more directly, nothing in what this case is arguing says that all access is fair use. I am perplexed at how the court interprets the argument this way. Indeed, much of what the DC Circuit is saying here is an argument against the entire existence of any fair use:
Plaintiffs’ premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers’ access to copyrighted work routinely requires consent from the copyright owner—typically obtained by paying for access subject to certain limitations on use.
This is just not what’s being argued at all. The argument is that if they meet the qualifications for fair use (i.e., that are adjudicated to be fair use under the four factors test) then they do not need to be licensed. So why is the court treating it like the argument is that everything must automatically be fair use?
The fact that some copyright-covered works are licensed is wholly unrelated to the actual question at play here. The fact that the court doesn’t seem to understand that is scary.
As the EFF notes in their writeup about this ruling, it seems to stem from the faulty belief that copyright is there solely to serve Hollywood’s profit motive.
The upshot of this ruling is that fair use is diminished and put at risk. I imagine we will begin to see more citations to this ruling by copyright maximalists arguing against fair use. The opinion has many quotes that basically pretend that fair use is simply the stripping away of all copyright and leads to the vast destruction of content-producing industries.
It’s a ridiculous ruling that will continue to have a negative impact on speech.
