June 12, 2003
1-29-03: “Lemonade? Maybe.
Yale Professor Jack Balkin tries to explain how the DMCA could be contested because it enables unlimited copyright terms. Frankly, this seems much weaker than his previous post about attacking the DMCA using Eldred.
He writes, “However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into the public domain.”
Is that so? Look at the DMCA: “1201(a) No person shall circumvent a techno-logical measure that effectively controls access to a work protected under this title.” The other clauses say similar things.
Are public domain works “protected under this title?” IANAL, but I don’t think so. Hell, if that’s not clear enough, and the DMCA really were unconstitutional on those grounds, they could just enact a new statute that said “Once works fall into the public domain, the DMCA no longer applies.” But I think it already says that. So where’s the beef? You can cry foul about DRM that protects a work forever, but I’m not sure there’s anything legally wrong there, and I don’t think that makes the DMCA unconstitutional.
(Maybe it makes it copyright misuse? Would anyone enforce this BEFORE the copyright expires? Could you say, “This DRM is a misuse of copyright even though the copyright hasn’t expired yet?” Sounds like we run into the same trouble there that Lessig did with copyright term extensions – how could you get a Court to look into the rule on what might happen in the future (in a infinite term DRM case, the content owners could provide a circumvention device later)).
I still agree with what Professor Balkin has to say about the DMCA “alter[ing] the traditional contours of copyright protection.” But this other argument doesn’t seem to work.”
1-31-03: “More on Balkin, DMCA, and Eldred
Earlier, I questioned one of Professor Balkin’s Eldred+DMCA=unconstitutional arguments. Though I still think I’m technically right about what I said, I think I see what Professor Balkin might have meant (but didn’t say explicitly).
The key is not the anti-circumvention provision that I focused on – it’s the anti-trafficking. If you can’t distribute the device that helps gain access to public domain works, you probably can’t get access. Thus, this provision enables unlimited copyright by making it difficult to circumvent access controls. Eric Eldred’s DMCA exemptions brief brought this point to my attention. (Also, the EFF makes the same argument about 1201(a) and the public domain that I did – but, in its brief, it asks for an exemption just in case.)
But is this enough? Is it enough to say that the provision makes it difficult but not impossible to gain access to public domain works? Is saying that the provision implicitly enables unlimited copyrights enough?
I don’t know. Given what past judges have said about the DMCA, I doubt they’ll quote the “alter[ing] the traditional contours of copyright protection” part of Eldred. Instead, I think they’ll go right to “[t]he wisdom of Congress’ action … is not within [the Court's] province to second guess.” Then again, I’m not a lawyer or a professor – that’s just my intuitive response.”