The Digital Millennium Copyright Act and the First Amendment: How Far Should Courts Go to Protect Intellectual Property Rights?
Schley, Glenn M., The Journal of High Technology Law
Federal courts are currently upholding the newly tested Digital Millennium Copyright Act of 1998 (1) ("DMCA") on challenges that it violates freedoms of expression protected by the First Amendment. (2) The powerful players in the entertainment industries enjoy judicial support for now, but may look to their opponents' discoveries to find an avenue to future success.
Digital technology has made it much more difficult to protect a copyrighted work from infringement. Digital media allows copies to be made without deterioration in quality and increases transportability over the Internet, where it can be made available throughout the world. (3) The major players in the copyright industry are making strides to keep up with advancing technology and they are armed with the DMCA at their side. The validity of the DMCA is at issue in this Note.
In 1976, Universal City Studios, copyright owner of television programs broadcasted on public airwaves, sued the Sony Corporation of America and the manufacturers of a newly developed video tape recorder, alleging that their distribution of copying equipment violated their rights under the Copyright Act through contributory infringement. (4) After Sony prevailed in the United States District Court, (5) the Ninth Circuit granted Universal City Studios relief on Appeal (6) and the United States Supreme Court decided the issue in 1984. (7) In what seemed to be a major blow for the copyright industry, the Court held that the production and sale of the video tape recording device was not contributory infringement.
In the aftermath of the Sony decision, (8) the copyright industry adapted to the changing technologies and developing markets. Considerable and unforeseen profits sprouted from the business of video rentals and sales. (9) By losing their initial fight, copyright owners discovered a new avenue for creating profits.
A more recent example of industry adapting to changing technologies involves music file sharing over the Internet. In March of 2002, the United States Court of Appeals in the Ninth Circuit upheld an injunction in an action brought by record companies and music publishers against Napster. (10) The record industry is still fighting the battle against file sharers. (11) They filed 261 law suits on September 8, 2003. (12) If the record industry loses their battle, they may learn from the technology created by their adversaries to find the next new market for their products just as the film industry has done with videos.
The DMCA extends copyright protection from the infringing act to the act of gaining access to the protected work. To override digital copyright protection, a programmer may write a computer code that is capable of breaking down the protection. The DMCA arguably regulates the writing and use of this code. The code itself has been found to be protected expression under the First Amendment. (13)
We will see how a balance exists between copyright protections and freedoms of expression and how both strive for common goals. The matter at issue here will depend on the level of scrutiny that courts may give to particular code under a First Amendment analysis. The level of scrutiny will be determined by the classification of code as either pure speech or expressive conduct. This Note examines this First Amendment issue in the context of the major motion picture associations' fight against programmers that have broken down the digital protections of DVDs.
II. THE GENTLE BALANCE BETWEEN THE FIRST AMENDMENT AND COPYRIGHT PROTECTION
A. First Amendment Protection
The First Amendment to the Constitution explicitly prohibits Congress from making any law that will abridge one's right to free speech. (14) Several different rationales back the freedom of expression encompassed in the First Amendment. In Abrams v. United States, (15) Justice Holmes expressed, in dissent, that the best filter for the truth occurs when thoughts are allowed to enter freely into the common market of ideas. …