The Digital Millennium Copyright Act and the First Amendment: Can They Co-exist?

Journal of Intellectual Property Law Volume 8 | Issue 2 Article 5 March 2001 The Digital Millennium Copyright Act and the First Amendment: Can They Co-exist? Rachel Simpson Shockley Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the First Amendment Commons, and the Intellectual Property Law Commons Recommended Citation Rachel S. Shockley, The Digital Millennium Copyright Act and the First Amendment: Can They Co-exist?, 8 J. Intell. Prop. L. 275 (2001). Available at: https://digitalcommons.law.uga.edu/jipl/vol8/iss2/5 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Shockley: The Digital Millennium Copyright Act and the First Amendment: Can THE DIGITAL MILLENNIUM COPYRIGHT ACT AND THE FIRST AMENDMENT: CAN THEY CO-EXIST? On October 28, 1998, President Clinton signed a piece of legislation into law entitled the "Digital Millennium Copyright Act" ("DMCA" or "Act").' The legislation was enacted, among other reasons, to address intellectual property concerns in the digital age. The DMCA addresses the fear of copyright holders that "their works, now available on the Internet in digital form, will be misappropriated."2 The Act accomplishes this first by making it illegal to "circumvent a technological measure that effectively controls access to a work protected"' under the Act. However, it does not stop there. Not only is it illegal to actually "hack around" a protective security measure for the purposes of copying protected works, but it is also illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that... is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to" a protected work.4 Think about that for a minute. It may sound reasonable at first blush, but when one gets beyond all the technical language, the provision is essentially preventing anyone from telling someone else how to make a copy of a protected work. Essentially, it is illegal for me to tell you how to deactivate a protective measure installed on a copyrighted work. Admittedly, once the information has been passed along, you are armed with knowledge of how to "circumvent" a "technological measure," but so what? Where is the harm? Knowing how to copy and actually copying are two entirely different things. More importantly, doesn't preventing us from telling one another how to make copies present a problem in the face of the First Amendment freedom of speech? This Note will discuss some of the history and goals of the Digital Millennium Copyright Act, as well as the policy in support of its broad reach. It will then follow the application of the DMCA in the August 2000 ' Carolyn Andrepont, DigitalMillennium CopyrightAct: Copyright Protectionforthe DigitalAge,9 DEPAUL-LCAJ. ART & ENT. L. & POL'Y 397, 398 (1999). 'Id at 399. 3 Copyright Protection and Management Systems, 17 U.S.C. S 1201(a)(1)(A) (Supp. V 1999). ' 17 U.S.C. S 1201(a)(2)-(a)(2)(A) (Supp. V 1999). Published by Digital Commons @ Georgia Law, 2001 1 Journal of Intellectual Property Law, Vol. 8, Iss. 2 [2001], Art. 5 . INTELL. PROP.L. [Vol. 8:275 case Universal City Studios, Inc. v. Reimerdes.s First, in its discussion of Reimerdes, this Note will recount the events giving rise to plaintiff's suit. Then the Note will analyze the court's application of the DMCA to plaintiff's claim. Following that, an effort will be made to determine the constitutional validity of the provision prohibiting the dissemination of information as to how to circumvent technological measures that prevent protected works in light of the First Amendment guarantee of freedom of speech. It has been clearly recognized by the Supreme Court of the United States that essential economic incentives for creative processes are provided by copyright protection.6 The Court has stated, "encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' "' It would be difficult for anyone to disagree with the overwhelming importance of copyright protection in achieving an environment which fosters creativity and thereby promotes social and technological advancement in pursuit of a greater good. We are now in the twenty-first century, and the Internet and other technological advances have created a global marketplace for the exchange of ideas and creative works! These advances have created new opportunities "for copyright owners to exploit and benefit from their work." 9 However, along with the benefits that these advancements have bestowed upon copyright holders, there is a tremendous increase in the ease with which protected works can be pirated." This by-product of the Internet and the "information age" resulted in the need to revisit copyright law and update it in an effort to combat these new problems."1 This update came in the form of the Digital Millennium Copyright Act, which is intended to extend copyright law to provide the necessary tools to protect copyrighted materials in the technologically enhanced marketplace. 2 The question is: has it been expanded too far? ' Universal City Studios, Inc. v. Reirnerdes, 111 F. Supp. 2d 294, 55 U.S.P.Q.2d (BNA) 1873 (S.D.N.Y. 2000). ' Jo Dale Carothers, Note, ProtectionofIntellectualProperty on the World Wide Web: Is the Digital Millennium Cop'yrigbtAct Sufficient?, 41 ARiz. L. REV. 937, 946 (1999). Id at 947. Andrepont, supra note 1, at 397. Id at 398. Id Id 12 Id at 399. https://digitalcommons.law.uga.edu/jipl/vol8/iss2/5 2 Shockley: The Digital Millennium Copyright Act and the First Amendment: Can 2001] DIGITAL MILLENNIUM COPYRIGHTA CT In the context of this paper, the question of expansion will be limited to an examination of 17 U.S.C. S 1201(a)(2), the provision which makes it illegal to "manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to" a protected work." The broad reach of this provision will become more clear when we turn to its practical application in Universal City Studios, Inc. v. Reimerdes. Before going directly to the case, the policy reasons asserted in support of the broad reach of the Act within the context of the movie industry should be briefly enumerated. Copyright industries are the United States' most important generator of exports. 4 "The international sale and export of films and videos, literature, music and sof (...truncated)