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Federal Court Rejects First Amendment Challenge to the DMCA

(February 25, 2004) - A federal court late last week ruled that "DVD Copy Plus," a product that makes backup personal copies of movies on DVD, violates the Digital Millennium Copyright Act (the DMCA). The product circumvents the "Contents Scramble System" that manufacturers insert on DVDs, and the DMCA bans such circumvention tools. Judge Susan Ilston rejected the argument of 321 Studios, the maker of DVD Copy Plus, that banning this product violates the free expression rights of consumers to make backup copies of creative works that they have purchased.

This decision illustrates the mounting tension between the DMCA and the First Amendment. Judge Ilston acknowledged that making a backup copy for personal use is not illegal; rather, it is a legitimate "fair use" of a work that the consumer already owns. She also agreed that, as the Supreme Court noted last year, such fair use is a "built-in First Amendment accommodation" within copyright law.1 Partial copying for purposes of commentary or scholarship, and even complete copying of a work for nonprofit, personal use, are necessary free expression safety valves within the copyright system.2

But Judge Ilston said that radically restricting fair use, as the DMCA does through its ban on products like DVD Copy Plus, does not amount to a violation of the First Amendment. She relied on two earlier court rulings that applied "intermediate" rather than "strict" judicial scrutiny to the DMCA.3 Under this "intermediate scrutiny" standard, the government's interest in helping the entertainment industry stop circumvention of its encryption methods trumps the public's interest in legitimately accessing and using creative works. As the judge wrote: "'A sufficiently important governmental interest ... can justify incidental limitations on First Amendment freedoms.'"4

The conflict between First Amendment rights and overly zealous copyright control - or, in this instance, the "paracopyright" control imposed by the DMCA - is a relatively new field of constitutional law. In the past, flexibility within the copyright system, including copying and sharing of movies, books, and music for personal use, has kept this slumbering conflict in a relatively dormant state. But decisions like 321 Studios v. Metro Goldwyn Mayer et al. make it imperative that policymakers and courts begin to recognize the First Amendment values that are undermined when Congress restricts fair use, access to information, and other aspects of a robust public domain.5

NOTES

1. 321 Studios v. Metro Goldwyn Mayer et al., No. C 02-1955 SI (N.D. Cal. Feb. 19, 2004), http://www.eff.org/IP/DMCA/MGM_v_321Studios/20040219_Order.pdf, slip opinion at 19, quoting Eldred v. Ashcroft, 123 S.Ct. 769, 788-89 (2003).

2. See "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom, for more on fair use and other free expression safety valves.

3. Universal City Studios v. Corley<