A Substantive Due Process Challenge to the §1201(b) Anti-Trafficking Provision of the Digital Millennium Copyright Act

I. Introduction

Since its inception, copyright law has had to adjust to technological developments in the “means of storing, reproducing, and disseminating expressive works.”[1] Recently, the “digital revolution” has posed perhaps the greatest challenge ever to copyright law. It has not only enabled new means of expression such as synthesized music and video games, but it has also resulted in the ability to quickly and inexpensively produce perfect copies of and distribute expressive works.[2] As a result, some have argued that the development of digital technology has significantly impaired the preexisting legal protections for copyrighted material by making infringement of and piracy in copyrighted works easier.[3]

However, apart from facilitating copyright infringement, digital technology has also provided copyright owners with a means of gaining extralegal protections for their copyrighted works.[4] That is, copyright owners have used technology to supplement the legal protection from which their copyrighted material already benefits. Technological measures that are designed to protect copyrighted material are most commonly known as “technological protection measures” (“TPM”).[5]

In 1998, Congress passed the Digital Millennium Copyright Act (“DMCA”)[6] in an effort to bolster copyright protection in response to technological advances in digital technology and the Internet, which enabled digital piracy on a scale that had never before been possible.[7] One part of the DMCA, the anti-circumvention provision, provides legal protection for TPM that copyright owners use to protect their copyrighted material.[8] Since its enactment, the anti-circumvention provision of the DMCA has withstood a number of different constitutional challenges, leading many to believe that the constitutionality of the anti-circumvention provision of the DMCA is beyond dispute.[9] Nevertheless, this Paper will argue that one component of the anti-circumvention provision of the DMCA, the §1201(b) prohibition on trafficking in devices primarily designed to circumvent a certain subset of TPM known as “Digital Rights Management” (“DRM”),[10] violates substantive due process by infringing on the right to fair use and, as such, is unconstitutional.

Part II of this Paper explains digital rights management and provides several examples of it. Part III details the DMCA and explains how Congress attempted to maintain the balance between public and private interests in copyright law in its enactment of the DMCA. Part IV explains the previous constitutional challenges that asserted fair use rights and which §1201(b) of the DMCA has thus far withstood. Lastly, Part V of this Paper sets forth the argument as to how the §1201(b) prohibition on trafficking in devices primarily designed to circumvent DRM violates substantive due process and is consequently unconstitutional. This entails arguing that there is a fundamental constitutional right to make fair uses of copyrighted works. Establishing the right to fair use as a “fundamental right” will allow a substantive due process challenge to §1201(b) of the DMCA to succeed where previous constitutional challenges to §1201(b) asserting fair use rights have failed because it will require the court to analyze §1201(b) under strict scrutiny. The previous challenges to §1201(b) of the DMCA, all of which were unsuccessful, only invoked intermediate scrutiny.[11]

II. Digital Rights Management

“Digital rights management” (“DRM”) is a subdivision of TPM. There is no general agreement on a definition of DRM,[12] but one of the most succinct and straightforward definitions that has been put forward defines DRM as “a term used for technologies that control how digital content is used.”[13] DRM is distinguishable from access-based TPM, which “act[s] as digital ‘locks’ to control access to . . . digital material.”[14] An example of an access-based TPM would be a password-protected website, for the password protection denies access to the protected content to those without the correct password. DRM, on the other hand, controls what a user can do with digital content, such as copy or alter it, after obtaining access to that content.

A. Examples of Digital Rights Management

i. Content Scramble System

Perhaps the most well known example of DRM is the Content Scramble System (“CSS”) form of encryption that major motion picture studios use to protect the content of DVDs.[15] CSS employs a mathematical algorithm that renders the contents of the DVD indecipherable to a DVD player unless that DVD player contains the proper “player keys” and the CSS algorithm necessary to decode the content into its original unencrypted format.[16] Without the necessary keys and the CSS algorithm, DVD players are unable to display the content of DVDs in viewable form.[17] The major motion picture studios then license the CSS decryption technology (i.e., the “player keys” and the CSS algorithm) to DVD-player manufacturers, so only licensed DVD players can play CSS-encrypted DVDs. In this way, CSS functions as an access-based TPM; it restricts access to the content of CSS-encrypted DVDs to only those viewers who utilize DVD players with licensed CSS decryption technology. However, CSS is also a form of DRM because it additionally serves to prevent users from copying or manipulating the content of CSS-encrypted DVDs—even if the DVD player in use has the licensed CSS decryption technology.[18]

ii. XCP-Aurora

Extended Copy Protection (“XCP”) is another form of DRM that brought DRM and DRM-related issues to the public’s attention in late 2005.[19] XCP-Aurora, specifically, is a form of computer software that can be embedded on music CDs.[20] When a user first attempts to play a CD with XCP-Aurora software on a Windows-based computer, a dialog box appears that requires the user to sign a user agreement.[21] The software installs itself on the user’s computer in such a way that the user cannot uninstall the program.[22] The software then prevents any other program on the user’s computer besides the XCP-Aurora software from accessing the content of the CD.[23] The only way to listen to or copy the contents of the CD using that computer, consequently, is to use the XCP-Aurora software.[24] Additionally, XCP-Aurora limits the number of times a user can copy music from the CD or transfer the music to a portable listening device.[25]

In late 2005, Sony/BMG Music Entertainment (“Sony”) received a great deal attention from the press after a software engineer discovered the presence of XCP software on his computer and realized that the source of the software was a music CD produced by Sony.[26] The press coverage focused on the fact that XCP-Aurora used “rootkit technology,” which created a security threat on computers with XCP-Aurora installed.[27] This negative press eventually forced Sony to take a number of remedial measures including recalling all of its CDs with XCP-Aurora installed on them, making available software to remove the rootkit component of XCP-Aurora, and replacing already purchased XCP-protected CDs with unprotected CDs.[28] It is important to note, however, that it was the security threat posed by the rootkit technology—not the actual use restrictions that XCP-Aurora placed on the CDs—that forced Sony to take these actions.

iii. FairPlay

FairPlay is a form of DRM that Apple currently uses with its popular iPod and iTunes music format.[29] FairPlay encrypts AAC-format audio files and limits what users can do with the encrypted files in a number of different ways. It allows users to load the audio files onto any number of iPods or burn them onto as many CDs as they wish.[30] However, it only allows users to load a particular audio file on up to five computers.[31] Additionally, it prevents users from emailing protected audio files or distributing them over the internet, and most importantly, it prevents users from listening to the protected audio files on any portable music device besides an iPod.[32]

III. The Anti-Circumvention Provision of the Digital Millennium

In 1998, Congress passed the Digital Millennium Copyright Act (“DMCA”)[33] to implement the 1996 World Intellectual Property Organization (“WIPO”) Copyright Treaty [34] and the 1996 WIPO Performances and Phonograms Treaty [35] (collectively “the 1996 WIPO treaties”) and to respond to the increase in digital piracy that accompanied the growing popularity of the Internet at the time.[36] By updating copyright law to accommodate the changes in technology that came along with the development of the Internet, Congress believed it could make the Internet a safer marketplace for and thereby facilitate electronic commerce in expressive works, such as music and movies.[37] One of the ways in which Congress attempted to do this was to clarify the potential liability of Internet Service Providers (“ISPs”) for contributory and vicarious copyright infringement resulting from copyright infringement by the ISPs’ users.[38] Congress reasoned that without such clarification, “service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet.”[39]

Congress also thought that “copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy.”[40] Additionally, the 1996 WIPO treaties obligated signatory nations to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used to protect copyrighted material.[41] Motivated by its duty to comply with the 1996 WIPO treaties as well as its desire to prevent the massive piracy that the Internet enabled, Congress included within the DMCA an “anti-circumvention provision.”[42]

A. Liability-Creating Provisions

The anti-circumvention provision of the DMCA creates three different types of liability. First, §1201(a)(1) prohibits the act of circumventing an access-based TPM by stating that “[n]o person shall circumvent a technological measure that effectively controls access” to a copyrighted work.[43] Secondly, §1201(a)(2) prohibits trafficking in any device designed to circumvent access-based TPM by stating that:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.[44]

Third, §1201(b) prohibits trafficking in any device designed to circumvent DRM by stating that:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.[45]

Thus, the liability provisions of the anti-circumvention provision of the DMCA are keyed to the different types of TPM currently in use. As the Senate Committee noted, “they are designed to protect two distinct rights and to target two distinct classes of devices.”[46] The first two liability provisions, §1201(a)(1) and §1201(a)(2), regulate the circumvention of access-based TPM, and the third liability provision, §1201(b), regulates the circumvention of DRM. Violation of any of the three provisions may give rise to both civil[47] and criminal liability.[48]

B. Public vs. Private Interests in the Anti-Circumvention

Provision of the DMCA

In updating copyright law for the new “digital millennium,” Congress was not merely motivated by the desire to protect the rights of copyright owners, for the constitutionally mandated purpose of copyright law is not to protect the rights of copyright owners, but rather to “promote the Progress of Science and useful Arts.”[49] The Constitution permits Congress to provide authors with limited monopolies over their expressive works only as a means to this end. The underlying rationale is utilitarian: the ability to profit from expressive works will motivate more creation of expressive works than would occur absent the limited monopoly rights that the Constitution permits Congress to recognize, and society will, in turn, benefit from this greater amount of expressive works.[50] In the words of Justice Stewart, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”[51]

In accordance with this utilitarian theory of copyright law, not only are copyright terms necessarily limited, but a number of common-law and statutory exceptions to copyright infringement exist as well, such as the doctrine of fair use.[52] These limitations on the rights of copyright owners serve to maintain the “copyright balance” of rewarding authors for their creation while ensuring that the public may benefit from those creations by furthering the public’s ability to legally make use of copyrighted works to a limited extent.[53] When Congress passed the DMCA, which primarily benefits copyright owners by legally endorsing the use of TPM to protect the rights of copyright owners, Congress also intended to maintain the constitutionally mandated balance between public and private interests in copyright law.[54] In the anti-circumvention provision of the DMCA, Congress included several clauses aimed at ensuring that the provision did not tip the scales too far in favor of the private interests of copyright owners.

i. Exemptions for Certain Activities

One of the ways in which Congress sought to maintain the balance between public and private interests in the DMCA was to provide a number of express exemptions to the general prohibition against the circumvention of TPM for certain activities. First, the anti-circumvention provision exempts nonprofit libraries, archives, and educational institutions from the ban on circumventing access-based TPM to gain access to a protected work “solely in order to make a good faith determination of whether to acquire a copy of that work.”[55] Secondly, the Act exempts circumvention of TPM for the purpose of reverse engineering a computer software program “for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs.”[56] Third, the anti-circumvention provision states that it does not apply to law enforcement, intelligence, or other government activities.[57] Lastly, the Act exempts circumvention of TPM for the purpose of ‘encryption research,’ which the Act defines as “activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products.”[58]

ii. Exemptions for Particular Classes of Works

Congress also created a regulatory procedure in the anti-circumvention provision of the DMCA whereby the Librarian of Congress can exempt particular classes of works from the purview of the §1201(a)(1) prohibition against circumventing access-based TPM.[59] This regulatory procedure does not, however, empower the Librarian of Congress to make any exemptions regarding the prohibitions against trafficking devices designed to circumvent either access-based TPM (§1201(a)(2)) or DRM (§1201(b)).[60] The statute directs the Librarian of Congress to hold rulemaking proceedings to determine whether the prohibition against circumventing access-based TPM will adversely impact the ability of users of particular classes of works to make noninfringing uses of that particular class of works during the succeeding 3-year period.[61] The statute also provides the Librarian of Congress with a list of factors to consider in making this determination.[62] Upon a finding that the prohibition will have an adverse impact on the ability of users of a particular class of works to make noninfringing uses of that class of works, the Librarian may then publish an exemption for that class of works that will remain in effect for a three-year period.[63] In enacting this regulatory procedure, Congress intended that any “particular class of copyrighted works” that the Librarian of Congress exempt be “a narrow and focused subset of the broad categories of works of authorship” that §102 of the Copyright Act identifies.[64]

Currently, four exemptions for particular classes of works from §1201(a)(1) are in effect, which the Librarian of Congress promulgated in October of 2003.[65] The four exemptions are as follows:

1.) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of e-mail.

2.) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

3.) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

4.) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a ‘specialized format.’[66]

Notice that two of the four exemptions apply to computer programs that are now obsolete.

iii. Other Public-Interest Aspects of the Anti-

Circumvention Provision of the DMCA

Besides providing for specific exemptions from the anti-circumvention provision of the DMCA, Congress sought to preserve the balance between public and private interests in several more general ways as well. First, Congress explicitly incorporated its intention to maintain the pre-existing exceptions to copyright infringement into the text of the statute by stating: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”[67] Several scholars have noted, however, that the effect of this statement is highly questionable.[68]

Secondly, Congress purposefully did not create liability for the act of circumventing technological protection measures designed to restrict the use of copyrighted works (DRM) as it did for the act of circumventing access-based TPM.[69] Consequently, whereas both the act of circumvention of access-based TPM and the trafficking in devices designed primarily for circumvention of access-based TPM give rise to liability, only trafficking in devices primarily designed for circumvention of DRM gives rise to liability; the actual act of circumventing DRM does not. The rationale underlying this recognized difference between circumventing access-based TPM and circumventing DRM is that access to the work is unauthorized in the former while the latter presumptively involves authorized access. As the House Committee noted, “where the access is authorized, the traditional defenses to copyright infringement, including fair use, would be fully applicable.”[70] Thus, the prohibition of the latter would penalize some instances of noninfringing conduct, such as fair use, while prohibition of the former would not.[71] Congress, therefore, intentionally did not create liability for the act of circumventing DRM “because it sought to preserve the fair use rights of persons who had lawfully acquired a work.”[72] This consideration, however, did not prevent Congress from prohibiting trafficking in devices primarily designed to circumvent DRM.[73]

IV. Previous Constitutional Challenges to §1201(b) of the

DMCA

Since its enactment, §1201(b) as well as the other two liability-creating components of the anti-circumvention provision of the DMCA have withstood a number of constitutional challenges. This has led commentators to conclude that the constitutionality of the whole of the anti-circumvention provision of the DMCA is a “well-settled issue.”[74] One scholar has argued that due to the lack of success of constitutional litigation on matters surrounding copyright law generally, the best way to correct imbalances in the copyright balance that favor private interests over the public interest is through statutory construction as opposed to constitutional adjudication.[75] Nevertheless, this Paper endeavors to put forth a new constitutional argument against one part of the anti-circumvention provision of the DMCA—§1201(b).

The argument that this Paper makes is that there is a fundamental right to fair use that is protected by substantive due process and that §1201(b) of the DMCA is an unconstitutional deprivation of this right.[76] While several of the previous constitutional challenges to the DMCA have attempted to assert that the DMCA violates fair use rights, none have grounded the right to fair use as a “fundamental right” protected by substantive due process. It is helpful to summarize these previous failed constitutional challenges to the DMCA that asserted fair use rights to see why they failed.

A. United State v. Elcom Ltd.

In United States v. Elcom, Ltd., the defendant, the manufacturer of a software program that enabled users to circumvent DRM use restrictions contained in files formatted for the Adobe eBook Reader, was charged with violation of §1201(b) the DMCA.[77] The defendant raised a number of constitutional challenges to §1201(b) of the DMCA in its defense, all of which failed.[78] Two of these constitutional challenges involved the assertion of fair use rights.[79]

i. §1201(b) Burdens Substantially More Speech than is

Necessary to Achieve the Government’s Objectives

In Elcom, the defendant asserted several First Amendment challenges to §1201(b) of the DMCA.[80] First, the defendant argued that because §1201(b) regulates computer code, a form of protectable speech under the First Amendment, which conveys a certain message (circumvention of DRM), §1201(b) of the DMCA is a content-based regulation and should be subject to strict scrutiny.[81] The defendant then offered two arguments to the effect that §1201(b) unduly burdened free speech, acceptance of which would warrant the conclusion that §1201(b) violates the First Amendment.[82]

Before addressing the defendant’s arguments that §1201(b) of the DMCA was overly burdensome on First Amendment rights, the court first rejected the defendant’s premise that §1201(b) is a content-based regulation.[83] The court conceded that computer code is speech protected by the First Amendment, but held that the anti-circumvention provision of the DMCA is content neutral because it bans trafficking in “devices,” which may be software (speech) or hardware (not speech).[84] Furthermore, computer code does not consist entirely of “speech;” rather, it consists of both speech and non-speech elements, such as the functions that the code serves.[85]The court stated that “[w]hen speech and non-speech elements are combined in a single course of conduct, a sufficiently important government interest in regulating the non-speech element can justify incidental intrusions on First Amendment freedoms.”[86]The court also noted that Congress’s purpose in enacting the DMCA was to regulate the non-speech elements of computer code (i.e., the code’s “function”) and not the speech elements of the code.[87]Based on these considerations, the court held that only intermediate scrutiny applied to the anti-circumvention provision of the DMCA.[88]According to intermediate scrutiny, a statute is constitutional so long as it “promotes a substantial government interest that would be achieved less effectively absent the regulation and the means chosen do not burden substantially more speech than is necessary to further the government’s legitimate interests.”[89] This standard “allows some impingement on protected speech in order to achieve the legitimate governmental objective[s].”[90] The asserted government objectives of §1201(b) of the DMCA in Elcom were furthering electronic commerce and protecting intellectual property rights.[91]

The defendant in Elcom argued that §1201(b) burdened more speech than necessary in two ways.[92] First, the defendant argued that §1201(b)’s blanket ban on DRM-circumvention tools banned more tools than necessary to achieve the government’s interests because such tools “can serve legitimate purposes.”[93] Secondly, the defendant argued that the DMCA swept too broadly insofar as it “effectively eliminates fair use, limits non-infringing uses and prevents access to material in the public domain and uncopyrightable material protected by ‘technological measures.’”[94] With regards to this second argument, the court rejected it as unsound, rebuffing all of the defendant’s assertions concerning fair use, non-infringing uses, and public domain materials.[95] Of particular importance to this Paper, the court argued that “the DMCA does not ‘eliminate’ fair use” although “[i]t may, however, become more difficult for such uses to occur with regard to technologically protected digital works.”[96] With regards to the first undue burden argument, the court reasoned that prohibition of DRM-circumvention tools with legitimate purposes was “reasonably necessary” to the achievement of the legitimate governmental objectives.[97] Thus, “the DMCA does not burden substantially more speech than is necessary to achieve the government’s asserted goals.”[98] Furthermore, the court also rejected the defendant’s proposed less restrictive alternative of imposing more severe penalties for copyright infringement on the grounds that it would “not be as effective . . . as is banning the trafficking in or the marketing of the tools that allow piracy to thrive.”[99]

ii. §1201(b) is Facially Overbroad by Violating the

First Amendment Rights of Third Parties

Another First Amendment challenge that the defendant in Elcom mounted alleged that the DMCA was unconstitutionally overbroad because it infringed on the First Amendment rights of third parties in two ways.[100] First, the DMCA “impairs the First Amendment right to access non-copyrighted works; and second, the statute precludes third parties from exercising their rights of fair use.”[101] The court first rejected this challenge on the ground that First Amendment “facial attacks on overbreadth grounds are limited to situations in which the statute or regulation by its terms regulates spoken words or expressive conduct,” and the DMCA is content-neutral.[102]

However, the court also went on to address this challenge on the merits, assuming that the two rights asserted were protected by the First Amendment, even though the court noted that that issue was not settled.[103] The court went on to hold that even if the argument was properly raised, and even if these two rights were protected by the First Amendment, “the DMCA does not substantially impair those rights.”[104] First, the court noted that the DMCA did not implicate any right to access non-copyrighted works because “the DMCA does not grant anyone exclusive rights in public domain works or otherwise non-copyrighted expression.”[105] Secondly, the court reiterated its conclusion that “the DMCA does not eliminate fair use or substantially impair the fair use rights of anyone” even though “[t]he fair user may find it more difficult to engage in certain fair uses.”[106] Also, the court held that even if the First Amendment protected the fair use “right” to make back-up copies,

to the extent the DMCA impacts a lawful purchaser’s ‘right’ to make a back-up copy, or to space-shift that copy to another computer, the limited impairment of that one right does not significantly compromise or impair of [sic] the First Amendment rights of users so as to render the DMCA unconstitutionally overbroad.[107]

In its hypothetical consideration of this facially overbroad challenge, the Elcom court did not explicitly state under what level of scrutiny it was operating. However, the court repeatedly used the modifiers “substantial” and “significant” when discussing impairment of fair use rights. Additionally, the court was apparently willing to accept making certain fair uses difficult and placing limitations on the “right” to make a back-up copy and/or space-shift digital content. This demonstrates that the court was still operating under intermediate scrutiny in its purely hypothetical adjudication of this matter.

B. Universal City Studios, Inc. v. Corley

In United States v. Corley, the defendant, Eric Corley, posted on his website a copy of a computer software program called “DeCSS,” which allows users to circumvent the form of DRM protection for DVDs called CSS and mentioned earlier in this Paper.[108] Eight major motion picture studios sued Corley for violating the DMCA.[109] Like the defendant in Elcom, Corley unsuccessfully challenged the constitutionality of the DMCA on a number of grounds. Only one of the constitutional arguments that Corley made involved fair use rights.

Corley’s fair-use-based argument was that the DMCA is unconstitutional because fair use “is rooted in and required by both the Copyright Clause and the First Amendment,” and the DMCA “eliminates fair use.”[110] The court labeled this claim “extravagant” and rejected it.[111] After noting that “the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might be enlisted for such a requirement,” the court refused to address the issue of whether fair use is a constitutionally guaranteed right.[112] Instead, the court held that the issues of whether a constitutional right to fair use exists and whether the DMCA might violate such a right were “far beyond the scope of this lawsuit.”[113]

To support this conclusion, the court listed several reasons. First, the court noted that the case before it did not actually involve any disputed claims of fair use.[114] Secondly, the court cited the district court’s conclusion that “the evidence as to the impact of the anti-trafficking provisions of the DMCA on prospective fair users is scanty and fails to adequately address the issue.”[115] Third, the court argued that, whether fair use was a constitutional right or merely a statutory one, defendant had produced no evidence that such a right includes the right to copy DVDs in their original format.[116] The court noted that the DMCA does not prevent other types of fair uses of DVD content besides digital copying, such as “commenting on [the DVD’s] content, quoting excerpts from [the DVD’s] screenplays,” or using analog devices to record the DVD content “by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie.”[117] According to the court, the existence of these other modes of making a fair use of a copyrighted DVD, absent proof that a constitutional right to fair use requires that the user be able to copy the DVD by “the fair user’s preferred technique or in the format of the original,” renders an effective prohibition of DVD copying constitutional.[118] In this way, without addressing whether fair use is a constitutional guarantee or whether the DMCA violates such a constitutional guarantee, the court expressed its opinion that Congress could relegate fair use to technological inferiority if it so wished.[119] Of course, the court did not specify under what level of judicial scrutiny such relegation would be permissible.

V. A Substantive Due Process Challenge to §1201(b) of the DMCA

A. Substantive Due Process Generally

“Substantive due process” is a constitutional theory that holds that the Due Process Clauses of the Fifth and Fourteenth amendments guarantee more than merely procedural safeguards, such as the right not to engage in self incrimination (i.e., taking the fifth), but guarantee protection from government interference with certain substantive rights as well.[120] The Due Process Clause of the Fifth Amendment holds that “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.”[121] According to substantive due process, the term “liberty” in the Fifth Amendment includes certain substantive constitutional rights that are “fundamental.”[122] If a right is “fundamental,” then any government action infringing upon it is subject to strict scrutiny,[123] which means that the Government must prove that its interference with that right is “necessary to achieve a compelling government purpose.”[124]

Much of the controversy in cases involving substantive due process focuses on whether a right is properly characterized as “fundamental.”[125] The Constitution explicitly states some fundamental rights. However, the Court has construed the Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,”[126] to permit the recognition of rights that are not found explicitly in the text of the Constitution as “fundamental rights” as well.[127] Thus, while the Court has held that many of the rights explicitly mentioned in the Constitution are “fundamental,” it has also held that a number of fundamental rights exist that receive no mention in the Constitution, such as the right to privacy, the right of access to the courts, and the right to procreate.[128] However, courts are reluctant to recognize rights not found in the Constitution as “fundamental” and thereby “expand the concept of substantive due process.”[129] This reluctance is due to the severe limitation that recognition of a right as “fundamental” places on the legislative and executive branches’ abilities to act in ways that might arguably encroach on the fundamental right in question.[130]

In Washington v. Glucksberg, former Chief Justice Rehnquist established two guidelines for evaluating whether a given right that is not found in the text of the Constitution is “fundamental” and, as a consequence, protected by substantive due process.[131] According to Rehnquist, the first question is whether the right or liberty interest at stake is “objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.”[132] In this way, “[o]ur Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking’ that direct and restrain [the Court’s] exposition of the Due Process Clause.”[133] The inquiry, therefore, into whether a right is a “fundamental right” protected by substantive due process is primarily an historical one, which asks whether the right is “deeply rooted in our legal tradition.”[134] Rehnquist’s second requirement is that “a ‘careful description’ of the asserted fundamental liberty interest” is necessary before the Court will recognize it as a fundamental right protected by substantive due process.[135]

B. A Substantive Due Process Challenge to §1201(b) of the

DMCA Generally

The thesis of this Paper is that §1201(b) of the DMCA, which prohibits trafficking in devices primarily designed to circumvent DRM,[136] violates the fundamental constitutional right of lawful users of copyrighted materials to make fair use of those materials. A substantive due process challenge to §1201(b) of the DMCA requires proof of three elements: (1) The right to fair use is a “fundamental right;” (2) §1201(b) infringes on the fundamental right to fair use; (3) §1201(b) is not the least restrictive alternative to achieving the government’s compelling interests in protecting the rights of copyright owners and promoting electronic commerce.

C. The Right to Fair Use is a “Fundamental Right”

i. Fair Use Generally

As mentioned earlier, the Constitution permits Congress to provide authors with limited monopolies over their expressive works only as a means to an end.[137] The constitutionally mandated end of copyright law is to benefit the public by promoting “the Progress of Science and useful Arts.”[138] One of the ways through which the law has sought to ensure that copyright law benefits the public is through the doctrine of “fair use.” One particularly apt explanation of the doctrine of fair use describes it as “a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.”[139] The underlying rationale is that allowing authors to stand on the shoulders of their predecessors and build off of previous works—to create something new from what went before—is essential to the “progress of Science and useful Arts.”[140] Accordingly, the law considers some uses of copyrighted works to be “fair” and does not recognize such uses as giving rise to liability for copyright infringement.

Currently, fair use is a statutory affirmative defense.[141] Congress first codified the doctrine of fair use in the Copyright Act of 1976.[142] However, prior to its codification, fair use was a common-law doctrine with a long history. In codifying the doctrine of fair use in the 1976 Copyright Act, the House Committee lauded the doctrine as “one of the most important and well-established limitations on the exclusive right of copyright owners.”[143]

Recognizing copyright law’s need for flexibility in a world of rapid technological change, Congress maintained the imprecise balancing approach to fair use that developed at common law when it codified the doctrine of fair use.[144] Thus, the current statutory codification of the fair use doctrine is rather sparse. It merely provides four factors for courts to consider when determining whether an alleged infringement actually constitutes a fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[145]

While providing flexibility, this language has also received criticism as “quite subjective” and as failing to provide reliable guidance to users.[146] Judge Learned Hand went so far as to describe the doctrine of fair use as “the most troublesome in the whole law of copyright.”[147]

ii. Fair Use is “Deeply Rooted in our Legal Tradition”

The doctrine of fair use came into existence through a process of evolution; it did not form a consistent and coherent doctrine until later in its development.[148] The first identified application of a doctrine similar to modern fair use was in Gyles v. Wilcox, an English case from 1740, which deemed “fair abridgement” permissible.[149] Fair abridgement, as the name suggests, involves publication of a shortened version of an otherwise copyrighted work.[150] In Gyles, Lord Chancellor Hardwicke held that “although otherwise an infringement, an abridgement that is ‘real and fair,’ i.e., one that does not merely colorably shorten the copyrighted work so as to evade infringement, will be excused from liability” because such abridgements involve “‘invention, learning, and judgment’ by the abridger . . . . and as such would promote the progress of science as did the original.”[151] Twelve years later, in Tonson v. Walker, an English court rejected the defense of fair abridgement for the first time, finding, after comparing the amount of material the defendant abridged from the plaintiff and the amount of material that the abridger added, that the fair abridgement defense was “a mere evasion.”[152]

Fair abridgement was a precursor and currently is a subset of the modern doctrine of fair use. The first time that a court held that a “use” of a copyrighted work other than abridgement to be “fair” was in Cary v. Kearsley in 1803.[153] In that case, Lord Ellenborough summarized the budding doctrine of fair use as follows:

That part of the work of one author is found in another, is not of itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another’s labours for the promotion of science, and the benefit of the public; but having done so, the question will be, Was the matter so taken used fairly with that view, and without what I may term the animus furandi [bad faith]?[154]

However, the first truly comprehensive articulation of the fair use balancing test, which arguably survives today in the form of 17 U.S.C. §107,[155] did not appear until 1843 in the United States in Folsom v. Marsh.[156] In Folsom, Justice Story advocated the fact-intensive inquiry that is characteristic of fair use adjudication today, noting that questions of copyright infringement:

often depend upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of the materials.[157]

What is important for purposes of this Paper is that in setting forth this balancing test for fair use adjudication, Justice Story referenced the English law of fair abridgements and even cited Gyles v. Wilcox as support for his reasoning.[158] From that point on, the doctrine of fair use developed throughout U.S. case law up until its codification in 1976.[159]

Thus, the doctrine of fair use meets Rehnquist’s first standard for recognition as a fundamental right. The modern statutory conception of fair use reaches as far back as 1740 in England, before the founding of the United States. The United States’ adoption of English common law directly incorporated the evolving doctrine of fair use. Consequently, the doctrine of fair use is as deeply rooted in our legal history and tradition as it possibly can be, for it is as old as our very Nation itself. Clearly, fair use meets the first benchmark of a fundamental right.

iii. Fair Use is “Implicit in the Concept of Ordered

Liberty”

Furthermore, the long legal tradition that the fair use doctrine has enjoyed in the United States assumes an even greater degree of importance when one considers the role that the fair use doctrine plays in our constitutional scheme. As discussed earlier,[160] copyright law has its source in the Constitution and exists for the primary purpose of benefiting the public.[161] The doctrine of fair use has aided in achieving the public benefits of copyright law almost since copyright law’s inception.[162] The doctrine of fair use protects the “countervailing interest in free discussion” that copyright protection potentially threatens.[163] The Supreme Court has recognized this function of the doctrine of fair use on multiple occasions.[164]

In Campbell v. Acuff-Rose Music, Justice Souter, writing for the majority of the Court, wrote that “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science and useful Arts.’”[165] More recently, in Eldred v. Ashcroft, Justice Ginsburg, writing for the majority, described the fair use doctrine and the idea/expression dichotomy as “built-in First Amendment accommodations,” which prevent copyright law from infringing on freedom of expression.[166] Justice Ginsburg then insinuated that had Congress altered these “traditional contours of copyright protection,” further First Amendment scrutiny of the challenged Copyright Term Extension Act would have been necessary.[167] Not only does the fair use doctrine function to ensure the constitutionally mandated balance between private and public interests in copyright law, then, but it also ensures copyright law’s compatibility with the First Amendment.[168] Consequently, “neither liberty nor justice would exist if [the fair use doctrine] were sacrificed,”[169] for such a sacrifice would impair both the ability of copyright law to achieve its constitutional mandate to balance private and public interests as well as its compatibility with First Amendment freedom of expression.

In light of the long legal tradition in the United States of recognizing the doctrine of fair use as well as the fair use doctrine’s well established position in the constitutional scheme, it is by no means a stretch to recognize fair use as a “fundamental right” protected by substantive due process. The doctrine of fair use is “objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.”[170]

iv. Fair Use is Carefully Described in Sufficient

Detail

According to then-Chief Justice Rehnquist’s opinion in Washington v. Glucksberg, such a solid grounding in the Nation’s legal tradition and the concept of liberty is not enough to determine whether a right is fundamental.[171] Additionally, a right must be “a ‘careful description’ of the asserted fundamental liberty interest” before the Court will recognize it as a fundamental right protected by substantive due process.[172] However, Rehnquist says nothing more of this requirement, and the cases to which he cites in support of the proposition provide little guidance on the issue beyond stating that “the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.”[173] Presumably, this requirement reflects the Court’s separation of powers concerns in the sphere of substantive due process and its reluctance to recognize rights as fundamental that are so broad as to impair the functioning of the legislature beyond the limitations on Congress set forth in the Constitution. The Court expressed this concern in Bowers v. Hardwick, stating that “[t]here should be, therefore, great resistance to expand the substantive reach of [Due Process], particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.”[174]

Judicial recognition of the doctrine of fair use as a fundamental right does not implicate these concerns, however. A number of reasons support the conclusion that the doctrine of fair use is carefully described in sufficient detail so as not to pose a threat to legislative authority. First, 17 U.S.C. §107 sets forth the doctrine of fair use.[175] While this codification of the doctrine has received criticism to the effect that it is vague and imprecise,[176] there is no historical evidence that the fair use doctrine has appreciably diminished copyright protection to date. If anything, history shows the reverse: as one scholar has noted, “[i]n the last 30 years, both the size of the copyright statute and the amount of protection it provides have grown by leaps and bounds.”[177] Thus, any suggestion that the doctrine of fair use is so broad as to inhibit copyright protection is simply not grounded in fact. Experience proves that, if anything, the effectiveness of the fair use doctrine has diminished over time. Moreover, over a century of case law exists that serves to provide further definition to the contours of the fair use doctrine.

Secondly, the separation of powers concern expressed in Bowers is not present in the case of fair use. The codification of the fair use doctrine in 1976 was a legislative acceptance and confirmation of the pre-existing right of fair use.[178] Under this view, were the Court to recognize fair use as a fundamental right, then, instead of usurping and impinging upon the legislative function, it would be echoing the wishes of the legislature. That is, the 1976 codification of the fair use doctrine is evidence for the existence of a right “objectively, deeply rooted in this Nation’s history and tradition.”[179]

Thus, in addition to being objectively rooted in our Nation’s legal tradition and implicitly necessary in our constitutional scheme, the doctrine of fair use satisfies the “careful description” requirement that Rehnquist imposes in Washington as well.[180] Recognition of the right to make fair use of copyrighted works would not be a judicial usurpation of power; rather, it would give effect to a right deeply ingrained in the Nation’s constitutional tradition.

D. §1201(b) Infringes on the Fundamental Right to

Fair Use

Having determined that a fundamental right exists, the next step in the analysis of a substantive due process claim asks whether the government has indeed infringed upon that fundamental right.[181] Section 1201(b) of the DMCA infringes on the fundamental right to fair use by banning the sale of all circumvention devices. Support for this claim is present in the very text of the judicial decisions that rejected the previous constitutional challenges to §1201(b) of the DMCA.[182] In United States v. Elcom Ltd., the court conceded that “certain fair uses may become more difficult” as a result of §1201(b).[183] Likewise, in 321 Studios v. Metro Goldwyn Mayer Studios, Inc., a case that reiterated one of the constitutional challenges present in Elcom,[184] the court noted that although copying is still possible under the DMCA, it “will not be as easy, as exact, or as digitally manipulable as plaintiff desires.” [185] The court in 321 Studios regarded these as “burdens concededly imposed by the DMCA.”[186]

In Elcom and 321 Studios, however, the courts upheld the anti-circumvention provision of the DMCA as constitutional. In reaching this conclusion, the courts only applied intermediate scrutiny, for the defendant in both cases asserted unconstitutional violations of fair use rights only as part of broader First Amendment challenges.[187] Asserting that the DMCA violates fair use rights in the context of First Amendment freedom of expression allowed the courts to predicate the level of scrutiny it applied on its determination of whether the DMCA was a content-based regulation or a content-neutral one.[188] Finding that the DMCA is content neutral, the court applied intermediate scrutiny, which “allows some impingement on protected speech in order to achieve the legitimate government objective.”[189] This allowed the court to uphold the constitutionality of the DMCA while still finding that it interfered with the exercise of fair use rights. That is, while the court did not deem the DMCA to “substantially impair” the right to fair use, it did recognize that the DMCA infringed the right to fair use to some extent.[190]

The problem that the courts in Elcom and 321 Studios recognized is that users of copyrighted works will not be able to turn to the market to acquire tools to circumvent the DRM that prevent them from making fair uses even though Congress recognized that circumvention in DRM for fair uses ought to remain legal and did not prohibit it.[191] Instead, lawful users of copyrighted works wishing to make fair uses of works that require copying of those works will either have to circumvent the DRM themselves or resort to unconventional copying techniques, such as pointing a camcorder at a monitor displaying the contents of a DVD.[192] The former option is only available to a very limited number of people—those with the technological sophistication necessary to circumvent professional-quality DRM. The latter option results in poor copy quality as well as a reduced ability to manipulate the resulting copy. It is true that this latter option preserves the ability to make fair use, but that does not counteract the fact that the existing law has placed a burden, albeit not a completely disabling one, on the right to make fair use of copyrighted works. A burden on a fundamental right is no less a burden because it does not completely destroy the right.

E. §1201(b) is not the Least Restrictive Alternative

Having established that fair use is a fundamental right and that §1201(b) infringes that right, the next step in substantive due process analysis is to apply strict scrutiny.[193] Strict scrutiny requires that “the government must justify its interference [with the fundamental right] by proving that its action is necessary to achieve a compelling government purpose.”[194] The two government interests that the courts have recognized the DMCA as furthering are protecting intellectual property rights and promoting electronic commerce.[195] While it is arguable whether promoting electronic commerce is a “compelling” government objective, protecting intellectual property rights most certainly is in light of the Constitution’s Intellectual Property Clause.[196] For the sake of argument, this Paper will assume that promoting electronic commerce is a compelling government objective as well, for it is the requirement that the infringement on the fundamental right be necessary to achieving the government objectives where §1201(b) fails strict scrutiny.

The question thus becomes whether §1201(b) of the DMCA is “necessary” to achieve either of these two asserted government interests.[197] “This requires that the government prove that it could not attain the goal through any means less restrictive of the right.”[198] As was the case with the issue of whether §1201(b) infringed on the right to fair use, language from a judicial decision involving prior constitutional challenges to the DMCA once again concedes this point. In United States v. Elcom Ltd., the court clearly stated that “Congress certainly could have approached the problem by targeting the infringers, rather than those who traffic in the tools that enable the infringement to occur” and solved the problem by enacting more severe penalties for infringement.[199] Under intermediate scrutiny, the Elcom court rejected this alternative because it “may not be as effective . . . as is banning the trafficking in or the marketing of the tools that allow privacy to thrive.”[200] However, if the right to fair use is a fundamental right, strict scrutiny applies and requires the least restrictive alternative. Thus, having established that the right to fair use is a fundamental right and asserting that §1201(b) violates that right, a substantive due process challenge can succeed where the First Amendment challenge in Elcom failed. Under strict scrutiny, it is no defense to claim that the proposed alternative may be less effective than the challenged government action; rather, the proposed alternative would have to be ineffective to allow the challenged government action to survive strict scrutiny. Thus, the Elcom court’s concession that Congress could have enacted harsher penalties to achieve its twin aims of protecting intellectual property and promoting electronic commerce essentially concedes that §1201(b) of the DMCA does not survive strict scrutiny. As such, it is unconstitutional.

F. Why §1201(a)(1) & §1201(a)(2) of the DMCA Remain

Constitutional

It is important to note that the substantive due process argument set forth above only applies to §1201(b) of the DMCA, which prohibits trafficking in devices primarily designed to circumvent DRM.[201] The substantive due process argument set forth in this Paper does not apply to §1201(a)(1) of the DMCA, which bans the act of circumventing access-based TPM,[202] nor does it apply to §1201(a)(2), which prohibits trafficking in devices primarily designed to circumvent access-based TPM.[203] This is due to the difference between DRM and access-based TPM discussed earlier in this Paper[204] and which Congress recognized in drafting the DMCA.[205] That difference is that DRM limits the abilities of authorized users of copyrighted works whereas access-based TPM denies access only to unauthorized users. As Congress noted in enacting the DMCA, only authorized users of a copyrighted work can assert the fair use doctrine in defense to an action for copyright infringement.[206] The fair use doctrine has never been available to those who made use of a copyrighted work without having lawful access to that work. Thus, §1201(a)(1) and §1201(a)(2) of the DMCA categorically cannot infringe upon fair use rights insofar as they only restrict the access of unauthorized users to whom the doctrine of fair use has always been unavailable. Accordingly, the substantive due process challenge that this Paper puts forward is strictly limited to §1201(b) of the DMCA, for that is the only provision of the DMCA that burdens the fair use rights of lawful users of copyrighted works.

VI. Conclusion

This Paper has argued that §1201(b) of the DMCA is an unconstitutional violation of substantive due process because it infringes upon the fundamental constitutional right to make fair uses of copyrighted works. The major advantage that grounding the right to fair use in substantive due process has over the previous constitutional challenges mounted against the anti-circumvention provision of the DMCA is that it requires the courts to apply strict scrutiny whereas the previous constitutional challenges, by grounding the right to fair use in the Fist Amendment, required only intermediate scrutiny. Under strict scrutiny, §1201(b) of the DMCA is an unconstitutional burden on the fundamental right to fair use.

[1] Robert P. Merges, Peter S. Menell & Mark A. Lemley, Intellectual Property Rights in the New Technological Age 319 (3rd Ed. 2003).

[2] Id.; Patricia L. Bellia, Paul Schiff Berman & David G. Post, Cyberlaw: Problems of Policy and Jurisprudence in the Information Age 270 (2nd Ed. 2003).

[3] Bellia, supra note 2, at 270.

[4] Id.

[5] Brian W. Esler, Protecting the Protection: A Trans-Atlantic Analysis of the Emerging Right to Technological Self-Help, 43 Idea 553, 555–56 (2003).

[6] The Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).

[7] See infra Part III (discussing the DMCA and its enactment).

[8] 17 U.S.C. § 1201 (2000).

[9] Diane M. Barker, Note, Defining the Contours of the Digital Millennium Copyright Act: The Growing Body of Case Law Surrounding the DMCA, 20 Berkeley Tech. L.J. 47, 55 (2005).

[10] 17 U.S.C. § 1201(b)(1) (2000).

[11] See infra Part IV (describing previous unsuccessful constitutional challenges to §1201(b) of the DMCA asserting fair use rights).

[12] C.J. Alice Chen & Aaron Burstein, Symposium: The Law and Technology of Digital Rights Management: Foreward, 18 Berkeley Tech. L.J. 487, 488 (2003); American Library Association, Digital Rights Management and Libraries, http://www.ala.org/ala/washoff/WOissues/copyrightb/digitalrights/digitalrightsmanagement.htm (last visited Mar. 25, 2006).

[13] American Library Association, supra note 12. A more technical definition is that DRM systems “consist of ‘secure packaging and delivery software designed to prevent purchasers and third parties from making unauthorized uses of digital works.’” Chen, supra note 12. Another definition holds that DRM is “the umbrella term referring to any of several technologies used to enforce pre-defined policies controlling access to software, music, movies, or other digital data.” Wikipedia, Digital Rights Management (DRM), http://en.wikipedia.org/wiki/Digital_rights_management (last visited Mar. 25, 2006).

[14] Esler, supra note 5.

[15] A “DVD” is a “digital versatile disc,” which is “a five inch wide plastic disk that stores digital information” and is commonly used to store video and film works. 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1089 (N.D. Cal. 2004).

[16] Universal City Studios, Inc. v. Corley, 273 F.3d 429, 436–37 (2nd Cir. 2001); 321 Studios, 307 F. Supp. at 1089.

[17] Corley, 273 F.3d at 436.

[18] Id. at 437.

[19] See Tom Zeller Jr., The Ghost in the CD; Sony BMG Stirs Debate over Software used to Guard Content, N.Y. Times, Nov. 14, 2005, at C9 (discussing the Sony XCP controversy as well as more general DRM issues).

[20] Wikipedia.com, Extended Copy Protection, http://en.wikipedia.org/wiki/Extended_Copy_Protection (last visited Mar. 26, 2006).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Extended Copy Protection, supra note 19.

[26] Wikipedia.com, 2005 Sony CD copy protection controversy, http://en.wikipedia.org/wiki/2005_Sony_CD_copy_protection_controversy (last visited Mar. 26, 2006).

[27] Id.

[28] Id.

[29] Wikipedia.com, Fairplay, http://en.wikipedia.org/wiki/FairPlay (last visited Mar. 26, 2006).

[30] Id.

[31] Id.

[32] Adam L. Penenberg, Digital Rights Mismanagement: How Apple, Microsoft, and Sony Cash in on Piracy Prevention, Slate, Nov. 14, 2005, http://www.slate.com/id/2130300/?nav=tap3 (last visited Mar. 26, 2006); FairPlay, supra note 29. Recently, the French National Assembly approved a bill that would require interoperability between portable digital music players. Doreen Carvajal, Challenge to iPod Restrictions Advances in French Legislature, N.Y. Times, Mar. 22, 2006, at C6. If passed, this bill will “require iPods to be able to play music purchased from competing Internet services, not just Apple Computer's own iTunes Music Store.” Thomas Crampton, France Weighs Forcing iPods to Play Other than iTunes, N.Y. Times, Mar. 17, 2006, at C3.

[33] The Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).

[34] World Intellectual Property Organization Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65 (1997) [hereinafter Copyright Treaty].

[35] World Intellectual Property Organization Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76 (1997) [hereinafter Performances and Phonograms Treaty].

[36] The Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998); Barker, supra note 9, at 47–48; Esler, supra note 5, at 553–54.

[37] S. Rep. No. 105-190, at 1–2 (1998).

[38] Id. at 8; see 17 U.S.C. § 512(a–d) (providing “safe harbors,” which grant immunity to ISPs from the copyright-infringing activities of their users); Barker, supra note 9, at 57–62 (discussing the “Safe Harbor Provisions” of the DMCA).

[39] S. Rep. No. 105-190, at 8 (1998).

[40] Id.

[41] Copyright Treaty, supra note 34, art. 11; Performances and Phonograms Treaty, supra note 35, art. 18.

[42] 17 U.S.C. § 1201 (2000).

[43] 17 U.S.C. § 1201(a)(1)(A) (2000).

[44] 17 U.S.C. § 1201(a)(2)(A–C) (2000).

[45] 17 U.S.C. § 1201(b)(1)(A–C) (2000).

[46] S. Rep. No. 105-190, at 12 (1998).

[47] 17 U.S.C. § 1203 (2000).

[48] 17 U.S.C. § 1204 (2000).

[49] U.S. Const. art. I, § 8, cl. 8.

[50] Merges, supra note 1, at 325; Bohannon, Christina, Reclaiming Copyright, 23 Cardozo Arts & Ent. L.J. 567, 580–81 (2006).

[51] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

[52] The Fair Use Doctrine is codified at 17 U.S.C. § 107 (2000). The Copyright Act also makes a number of other limitations on the exclusive rights of copyright owners such as permitting limited copying for a library or archives, 17 U.S.C. § 108 (2000). See 17 U.S.C. §§ 109–12, 117, 119, 121–22 (2000) (setting forth other limitations on the exclusive rights of copyright owners). Another statutory limitation on the rights of copyright owners is the idea/expression dichotomy under which only the expression of ideas, but not the ideas themselves, are copyrightable. 17 U.S.C. § 102(b) (2000). Additionally, a common-law limitation on the rights of copyright owners is the requirement of “substantial similarity” for actionable copying, which is also known as the de minimis exception. See Newton v. Diamond, 349 F.3d 591, 594 (9th Cir. 2003) (holding that de minimis copying does not constitute actionable infringement); Publ’g v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909) (holding that de minimis copying does not constitute actionable infringement).

[53] Bohannon, supra note 50, at 592–94 (arguing that the idea/expression dichotomy and the fair use doctrine both advance the public interest).

[54] H.R. Rep. No. 105-551(II), at 26 (1998) (stating the House Committee’s desire that the DMCA “maintain balance between the interests of content creators and information users” and “to ensure that the concept of fair use remains firmly established in the law”).

[55] 17 U.S.C. § 1201(d) (2000).

[56] 17 U.S.C. § 1201(f) (2000).

[57] 17 U.S.C. § 1201(e) (2000).

[58] 17 U.S.C. § 1201(g) (2000).

[59] 17 U.S.C. § 1201(a)(1)(B–E) (2000).

[60] Barker, supra note 9, at 53.

[61] 17 U.S.C. § 1201(a)(1)(C) (2000).

[62] 17 U.S.C. § 1201(a)(1)(C)(i–v) (2000).

[63] 17 U.S.C. § 1201(a)(1)(D) (2000).

[64] H.R. Rep. No. 105-551(II), at 38 (1998).

[65] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2005); Barker, supra note 9, at 54–55.

[66] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2005); Barker, supra note 9, at 54–55.

[67] 17 U.S.C. § 1201(c)(1) (2000).

[68] See Bohannon, supra note 50, at 591 (“Despite this ‘savings clause,’ courts have found liability where a defendant circumvented an access control for the sole purpose of accessing uncopyrighted materials.”); Eddan Elizafon Katz, RealNetworks, Inc. v. Streambox, Inc. & Universal City Studios, Inc. v. Reimerdes, 16 Berkeley Tech. L.J. 53, 56 (2001) (stating that 17 U.S.C. § 1201(c)(1) is the “most controversial limitation” in the DMCA and that “[i]t is unclear from the language of the provision whether or not fair use defenses can be applied to liability under the anti-circumvention provisions”); Laura J. Robinson, Anticircumvention under the Digital Millennium Copyright Act, 85 J. Pat. & Trademark Off. Soc’y 957, at Part I (2003) (noting that 17 U.S.C. § 1201(c)(1) is “not used” and that “many supporters of the DMCA are of the opinion that by enumerating certain exceptions in the Act, Congress meant to deliberately preclude most fair uses”).

[69] United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1120 (N.D. Cal. 2002) (citing H.R. Rep. No. 105-551(I), at 18 (1998)).

[70] H.R. Rep. No. 105-551(I), at 18 (1998).

[71] 37 C.F.R. § 201, at Part III.A.1 (2005).

[72] Elcom, 203 F. Supp. at 1120.

[73] 17 U.S.C. § 1201(b)(1) (2000).

[74] Barker, supra note 9, at 55.

[75] Bohannon, supra note 50, at 569.

[76] See infra Part V (making the argument that §1201(b) violates the fundamental constitutional right to fair use).

[77] United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1118 (N.D. Cal. 2002).

[78] Id. at 1122.

[79] Id. at 1130, 1133.

[80] Id. at 1127.

[81] Id.

[82] Elcom, 203 F. Supp. 2d at 1127.

[83] Id. at 1128.

[84] Id.

[85] Id.

[86] Id. at 1127–28.

[87] Elcom, 203 F. Supp. 2d at 1128-29.

[88] Id.

[89] Id. at 1129.

[90] Id. at 1132.

[91] Id. at 1129.

[92] Elcom, 203 F. Supp. 2d at 1130.

[93] Id.

[94] Id.

[95] Id. at 1131—32.

[96] Id. at 1131.

[97] Elcom, 203 F. Supp. 2d at 1132.

[98] Id.

[99] Id.

[100] Id.

[101] Id. at 1133.

[102] Elcom, 203 F. Supp. 2d at 1133.

[103] Id.

[104] Id. at 1134.

[105] Id. at 1134.

[106] Id. at 1134–35. Two years after Elcom, another defendant in a DMCA violation case raised this same argument—that the DMCA violates the fair use rights of third parties. 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1101–02 (N.D. Cal. 2004). In that case, the court rejected the argument for essentially the same reasons as the Elcom court. Id. at 1101.

[107] Elcom, 203 F. Supp. 2d at 1135.

[108] Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001); see supra Part II.A.i (discussing CSS).

[109] Corley, 273 F.3d at 436.

[110] Id. at 458 (citing Brief for Appellants at 41–42).

[111] Id.

[112] Id.

[113] Id. at 458–59.

[114] Corley, 273 F.3d at 459.

[115] Id. (quoting Universal City Studios v. Reimerdes, 111 F. Supp. 2d 346, 338 n.246 (S.D.N.Y. 2000)).

[116] Id.

[117] Id.

[118] Id.

[119] Corley, 273 F.3d at 459.

[120] Erwin Chemerinsky, Constitutional Law: Principles and Polices 762 (2d ed. 2002).

[121] U.S. Const. amend. V.

[122] Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (quoting Whitney v. California, 274 U.S. 357, 373 (1927) (Justice Brandeis, concurring)) (“[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution.”).

[123] Chemerinsky, supra note 120, at 762.

[124] Id.

[125] See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942) (involving the question of whether the right to procreate is “fundamental”); Loving v. Virginia, 388 U.S. 1 (1967) (involving the question of whether the right to marry is “fundamental”); Bowers v. Hardwick, 478 U.S. 186 (1986) (involving the question of whether the right to private consensual homosexual sex is “fundamental”).

[126] U.S. Const. amend. IX.

[127] Chemerinsky, supra note 120, at 764.

[128] Id. at 762.

[129] Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

[130] Id. (noting that recognition of a right as “fundamental” will “to a great extent, place the matter outside the arena of public debate and legislative action”).

[131] Id. at 721.

[132] Id. at 721 (citations and quotations omitted).

[133] Id. (citation omitted).

[134] Washington, 521 U.S. at 722.

[135] Id. at 722.

[136] 17 U.S.C. § 1201(b) (2000).

[137] See infra Part III.B (describing the constitutional purpose of Copyright Law).

[138] U.S. Const. art. I, § 8, cl. 8.

[139] Stanford University Libraries, Copyright & Fair Use, Chapter 9: Fair Use, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html (last visited Mar. 26, 2006).

[140] U.S. Const. art. I, § 8, cl. 8.

[141] 17 U.S.C. § 107 (2000). The doctrine of fair use safeguards technical infringements of copyright owners’ exclusive rights “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” from giving rise to liability for copyright infringement. Id.

[142] The Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976).

[143] H.R. Rep. No. 94-1476, at 65 (1976). The House Committee also noted that “there is ample case law recognizing the existence of the [fair use] doctrine and applying it.” Id.

[144] Id. at 66 (“Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.”).

[145] 17 U.S.C. § 107(1–4) (2000).

[146] Stanford University Libraries, supra note 139.

[147] Merges, supra note 1, at 451 (citing Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939)).

[149] Id. at 6 (citing Gyles v. Wilcox, 26 Eng. Rep. 489, 490, 2 Atk. 141, 143 (1740)) The Statute of Anne, 8 Ann. c.19 (1710), was England’s first statutory copyright law and is thought to be the world’s first “fully-fledged copyright law.” Wikipedia, Statute of Anne, http://en.wikipedia.org/wiki/Statute_of_Anne (last visited Mar. 26, 2006).

[150] Patry, supra note 148, at 11.

[151] Id. at 7.

[152] Id. at 8 (citing Tonson v. Walker, 3 Swans. (App.) 672, 679 (1759)).

[153] Id. at 9–10 (citing Cary v. Kearsley, 4 Esp. 168 (1803).

[154] Id. at 10 (citing Cary v. Kearsley, 4 Esp. 168, 170 (1803).

[155] John Shelton Lawrence and Bernard Timberg, Fair Use and Free Inquiry: Copyright Law and the New Media 10 (2d ed. 1989).

[156] Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841).

[157] Id.

[158] Id. at 345; see also Campbell v. Acuff-Rose Music, 510 U.S. 569, 575–76 (1994) (tracing the development of the fair use doctrine back to 18^th-century England).

[159] See Patry, supra note 148, at 19–62 (charting the progression of the doctrine of fair use in American case law).

[160] See Part III.B (discussing how the protection of private rights in copyrighted materials is only incidental to copyright law’s ultimate goal of benefiting the public).

[161] U.S. Const. art. I, § 8, cl. 8.

[162] See supra Part V.C.i (detailing the long common-law history of the fair use doctrine); see also Consumers Union of the United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1048 (2d Cir. 1983) (“Fair use is a codification of the decisional law in an effort to prevent rigid application of the Copyright Act where such application would unreasonably prevent the dissemination of information.”); Lawrence, supra note 155, at 9 (“[O]ur society has rarely been content with a complete monopoly in copyright because it clearly contradicts the requirements of discussion and analysis that must prevail in a democracy.”).

[163] Lawrence, supra note 155, at 9.

[164] Eldred v. Ashcroft, 537 U.S. 186, 219 (2003); Campbell v. Acuff-Rose Music, 510 U.S. 569, 575 (1994); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985).

[165] Campbell, 510 U.S. at 575.

[166] Eldred, 537 U.S. at 219 (2003); Bohannon, supra note 50, at 594; see also Harper & Row, 471 U.S. at 560 (1985) (describing the doctrine of fair use along with the idea/expression dichotomy as “First Amendment protections already embodied in the Copyright Act[]”).

[167] Eldred, 537 U.S. at 221.

[168] See Patry, supra note 148, at 578 (noting the role that fair use plays in copyright law’s compatibility with the First Amendment); Lawrence, supra note 155, at 9 (“It has long been an axiom of democratic debate that one can cite the words of another without permission, even though the law may have granted an apparent monopoly to the copyright holder.”)

[169] Washington v. Glucksberg, 521 U.S. 702, 722 (1997); see supra Part V.A (discussing substantive due process generally).

[170] Washington, 521 U.S. at 722.

[171] Id.

[172] Id.

[173] Reno v. Flores, 507 U.S. 292, 302 (1993).

[174] Bowers v. Hardwick, 478 U.S. 186, 195 (1986).

[175] 17 U.S.C. § 107 (2000).

[176] See supra Part V.C (discussing criticisms of 17 U.S.C. §107 as vague and imprecise).

[177] Bohannon, supra note 50, at 581.

[178] See supra Part V.C (describing congressional recognition of the pre-existing doctrine of fair use in the Copyright Act of 1976).

[179] Washington v. Glucksberg, 521 U.S. 702, 722 (1997).

[180] Id.

[181] Chemerinsky, supra note 120, at 766.

[182] See supra Part IV (discussing previous constitutional challenges to the DMCA involving fair use rights).

[183] United States v. Elcom Ltd., 203 F. Supp. 2d at 1111, 1131, 1134–35 (N.D. Cal. 2002).

[184] 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1101–02 (N.D. Cal. 2004); supra n.102 and accompanying text.

[185] 321 Studios, 307 F. Supp. 2d at 1102.

[186] Id. at 1101.

[187] Elcom, 203 F. Supp. 2d at 1129.

[188] Id. at 1127–28.

[189] Id. at 1132.

[190] Id. at 1134.

[191] See supra Part III.B.iii (discussing how Congress specifically did not prohibit the act of circumventing DRM to protect fair use rights).

[192] Universal City Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).

[193] Chemerinsky, supra note 120, at 767–68.

[194] Id. at 762.

[195] United States v. Elcom Ltd., 203 F. Supp. 2d at 1111, 1129 (N.D. Cal. 2002).

[196] U.S. Const. art. 1, § 8, cl. 8.

[197] Chemerinsky, supra note 120, at 767.

[198] Id.

[199] Elcom, 203 F. Supp. 2d at 1132.

[200] Id.

[201] 17 U.S.C. § 1201(b) (2000).

[202] 17 U.S.C. § 1201(a)(1) (2000).

[203] 17 U.S.C. § 1201(a)(2) (2000).

[204] See supra Part II (discussing DRM and contrasting it with access-based TPM).

[205] See supra Part III.A (noting how Congress designed the three liability-creating provisions of the anti-circumvention provision of the DMCA “to protect two distinct rights”).

[206] See supra Part III.B.iii and n.70 and accompanying text (describing how Congress purposefully did not prohibit the act of circumventing DRM in an effort to protect the fair use rights of authorized users, but did prohibit the act of circumventing access-based TPM because that restriction did not implicate any fair use concerns).