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The DMCA and the Privatization of Copyright Dave Hauser

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The DMCA and the Privatization of Copyright Dave Hauser Hastings Communications and Entertainment Law Journal Volume 30 | Number 2 Article 5 1-1-2008 The DMCA and the Privatization of Copyright Dave Hauser Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Dave Hauser, The DMCA and the Privatization of Copyright, 30 Hastings Comm. & Ent. L.J. 339 (2008). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol30/iss2/5 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The DMCA and the Privatization of Copyright by DAVE HAUSER* I. Introduction ........................................................................................ 339 II. B ackground ........................................................................................ 34 1 A . N ap ster ......................................................................................... 34 1 B . Legal D igital D istribution ............................................................ 342 C . D RM and the D M CA .................................................................. 344 III. The DMCA Prevails Under Constitutional Challenges ..................... 345 A. Intellectual Property Clause Restraints ........................................ 345 1. B oundaries ............................................................................ 345 2. The Commerce Clause and Elcom ........................................ 346 B. First Amendment Restraints ........................................................ 348 1. A Threat to Cultural Autonomy? ...................... .. .. .. 348 2. The Corley D ecision ............................................................. 349 C . F air U se ....................................................................................... 35 1 IV. Digital Paradigms Can Develop Successfully Under The DMCA's P rivatization ....................................................................................... 353 V . C onclusion ......................................................................................... 355 I. Introduction Critics of the Digital Millennium Copyright Act (DMCA)' prevail on the internet, the forum the Act intended to serve.2 Common sentiment bemoans the law as pushed by deep pockets to hold down the public * University of California, Hastings College of the Law, Juris Doctor Candidate, 2008. Written under the supervision of Adjunct Professor Cecily Mak, instructor of the Digital Media Law Seminar at U.C. Hastings College of the Law. Infinite thanks to her for her suggestions and support. 1. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998). 2. See, e.g., The Issue: U.S. Constitution, Unintended Consequences, http://www.anti- dmca.org/whats-wrong.html (last visited Jan. 20, 2008); Jonathan Bailey, Punditry Saturday: Why I Hate the DMCA, Plagiarism Today, Oct 8th, 2005 http://www.plagiarismtoday.com/2005/10/08/punditry-saturday-why-i-hate-the-dmca/. HASTINGS COMM/ENT L.J. r30:339 through strong-arm content protection, often with the implicit suggestion that the DMCA is on shaky legal ground.3 Critics point to a multitude of unintended side-effects, further implying that the DMCA is the leader in a parade of horribles. What lies beneath critics' DMCA loathing is a sweeping anxiety over the privatization of copyright. Although highly criticized, the DMCA earned a unanimous Senate vote along with President Bill Clinton's signature in 1998.6 Its goal was to bring U.S. copyright law "squarely into the digital age" by making "digital networks safe places to disseminate and exploit copyrighted materials."7 The DMCA purported to create the "legal platform for launching the global digital online marketplace .... Because deep pockets influence most modem legislation, scrutinizing the DMCA's lobbyist roots does little to distinguish it from other commercial laws. The vast majority of emotionally charged criticism fails to note that, despite its flaws, the DMCA may be a completely legitimate and valuable piece of legislation. Indeed, while consumer rights arguments flooded internet blogs, litigants and legal commentators made additional challenges to the Act on constitutional grounds. 9 With the support of recent case law, statistics, and legal analysis, this note defends the DMCA and its copyright protection mechanisms. The DMCA should be readily acknowledged as a push toward the privatization of copyright. Furthermore, the vast amount of criticism surrounding the DMCA wrongly shifts the focus away from what its provisions have accomplished. This note addresses three main challenges to the DMCA's constitutionality: (1) that it exceeds the scope of Congressional authority as restrained by the Intellectual Property Clause, (2) that it oversteps the boundaries of First Amendment protection, and (3) that the doctrine of fair use is unconstitutionally intruded. This note concludes that privatization of copyright under the DMCA is a constitutionally sound response to technology's outpacing of the law. Additionally, society should encourage 3. Unintended Consequences, supra note 2. See also John Dvorak, Free Speech at Risk, PC Magazine Online, Oct. 13, 2003, http://www.pcmag.com/article2/0,4149,1335801,00.asp ("Mind you, this Lsm violation of an illegal law that Congress seems content to enforce."). 4. Electronic Frontier Foundation, Unintended Consequences: Seven Years Under the DMCA, April 2006, http://www.eff.org/IP/DMCA/unintended-consequences.php#Section7. 5. See, e.g., Matt Jackson, Using Technology to Circumvent the Law, The DMCA 's Push to Privatize Copyright, 23 Hastings Comm. & Ent. L.J. 607, 609 (2001). 6 Wildpedia, Digital Millennium Copyright Act, http://en.wikipedia.org/wiki/DMCA (last visited Nov. 12, 2007). 7. S. Rep. No. 105-190, at 1-2 (1998). 8. Id. 9. See, e.g., id.; United States v. Elcom Ltd., 203 F.Supp.2d 1111 (2002). 20081 DMCA AND THE PRIVATIZATION OF COPYRIGHT the privatization of copyright to allow for optimal progress of the digital media industry. II. Background A. Napster In 1999, Shawn Fanning released the original Napster peer-to-peer file sharing system.10 Just as Johann Sebastian Bach's death marked the end of Baroque music, June 1, 1999 sufficiently marked the crest and beginning of the fall of music's physical distribution." Through the 1990s, the total physical distribution of CDs rose steadily. 12 The peak technically came in 2000, although it was a mere 0.4% increase from 1999.13 In 2005, total album sales were 30% below their 1999 levels, 14 which have fallen steadily each year since 2000.15 These statistics show that a sweeping change in the music business occurred at around 2000. In under a year, Napster went from having zero to 60 million users per month! 16 The original Napster was the most conspicuous manifestation of a changing technological landscape. First17 and foremost, these 60 million users came because the music was free. Consumers no longer had to go to a physical music store, or deal with creating cumbersome or poor quality copies dubbed from CDs to tapes, and the selection of music was at least good enough to keep them coming back for more. 18 From a legal standpoint, the original Napster's fatal flaw was its central database for song titles. 19 This theoretically gave Napster supervision over what people were doing on the network.20 When coupled 10. Wikipedia, Napster, http://en.wikipedia.org/wiki/Napster (last visited Nov. 12, 2007). 11. Id. 12. The Recording Industry Association of America's 2000 Year-end Statistics (on file with author). 13. Id. 14. Saul Hansell, Putting the Napster Genie Back in the Bottle, Nov. 20, 2005, N.Y. TIMES, Nov. 20, 2005, http://www.nytimes.com/2005/11/20/business/yourmoney/ 20fanning. htmlex= 1290142800&en=847e39c379d344d5&ei=5088&partner=rssnyt&emc=rss. 15. The Recording Industry Association of America's 2005 Year-end Statistics (on file with author). 16. Marshall Brain, How Gnutella Works, http://www.howstuffworks.com/file-sharing.htm (last visited Jan. 20, 2008). 17. Id. 18. Id. 19. Id. 20. Katie Dean, Videos Quick, Easy and Automatic, WIRED, Jan. 11, 2005, http://www.wired.com/news/digiwood/0,1412,66231,00.html. HASTINGS COMMIENT L.J. [30:339 with a clear, centralized target, the Ninth Circuit had all it needed to shut Napster down. 21 All of Napster's attempted fair use defenses failed, and the court found it contributorily and vicariously liable for copyright 22 infringement. The court's conclusion' 23 rested heavily on "Napster's failure to police the system's 'premises.' Statistics show that consumer demand for peer-to-peer file sharing was far too high to be wiped out by a Napster shut down. Soon a vast array of options developed to feed consumers' free music cravings. The Gnutella network is one of the most popular today, and has yet to be shut down despite a hostile legal climate.24 Gnutella's survival is primarily due to two departures from the original Napster set-up: Gnutella does not have a centralized database, and it permits many different client applications to connect to the network.25 Decentralized file sharing systems are a major force in the music industry.
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