Academic journal article Rutgers Computer & Technology Law Journal

The Digital Millennium Copyright Act: Disabusing the Notion of a Constitutional Moment

Academic journal article Rutgers Computer & Technology Law Journal

The Digital Millennium Copyright Act: Disabusing the Notion of a Constitutional Moment

Article excerpt


The Digital Millennium Copyright Act (1) ("DMCA") has been characterized as "represent[ing] the most comprehensive reform of United States copyright law in a generation." (2) It implemented two 1996 treaties executed under the auspices of the World Intellectual Property Organization, (3) and addressed a number of other significant issues relating to the modernization of copyright protection. (4) In consequence of these sweeping changes, when the DMCA was signed into law it had already garnered a reputation as more than one of many manifestations of normal legislation, and was instead characterized as the trigger of"serious constitutional concerns." (5)

Among other things, scholars have criticized the DMCA for providing Internet Service Providers ("ISPs") with a safe harbor from liability if the ISPs remove allegedly infringing material from websites hosted on their systems upon receiving notice of the infringement. (6) These critics opine that ISPs may act to comply with accusations so zealously that they threaten to engender a countervailing infringement of the First Amendment rights of web page owners and ISP customers. (7) Some defenders of the DMCA, disagreeing with the contention of unconstitutionality, maintain that it is a revolutionary legal reform up to the task of enforcing copyright in the Digital Age. (8) Both positions are exaggerations. No constitutional moment has taken place.

A study of history discloses that the issues that have previously resulted in true constitutional change, despite formal Article Five(9) compliance, surface only during periods of crisis as long-standing legal dogmas are shaken and challenged by intense debate and escalating electoral mandates from an unusually engaged citizenry, (10) Consider two examples. First, the Reconstruction Amendments (11) were the final product of decades of political debates that culminated in the bloodiest conflict in American history and the near-destruction of the Union. (12) Although certain southern delegations were excluded from congressional participation, rendering the Amendments of dubious Article Five authority, (13) the public repeatedly gave large electoral mandates to the Republicans in support of political equality with a nationalist center, and today the Reconstruction Amendments are unquestionably part of the constitutional fabric that governs this nation. (14)

Second, following Reconstruction, the emerging Industrial Revolution and its impact on the American worker led to ubiquitous state legislative actions to provide constitutional and statutory rights in the form of workers' compensation laws, and ultimately culminated in mandates for regulatory-minded state and federal governments, permanently altering the constitutional interpretation of the substantive freedom of contract. (15) In this instance, Article Five was even more blatantly disregarded, as a Supreme Court threatened by unconventional reform revisited and rejected Lochner v. New York (16) and its progeny, signaled by the "switch in time" of Justice Roberts in West Coast Hotel Co. v. Parrish (17) and other New Deal cases. (18) Despite the total absence of Article Five compliance, the rejection of the Lochner era's interpretation of the freedom of contract is well established in modern law. (19)

The DMCA, despite its ambitious moniker and much fanfare, presents no such concern for the hypertextualist who believes constitutional reform must follow Article Five procedures. Instead, the DMCA is a particularly unambitiously-drafted piece of legislation and a relatively inadequate attempt to bring copyright protection in line with the ability of modern technology to promulgate inexpensive and potentially worldwide copyright infringement. (20) Accordingly, when addressing the import of this statute, the appropriate focus for the legal community--scholars, jurists and the practicing bar alike--is to use it as the starting-point to adapt nineteenth-century copyright concerns to twenty-first century technology. …

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