DMCA VIOLATES FREE SPEECH RIGHTS (5-2004)

In 1998, Congress passed a law that probably comes closer 
than any law enacted in the last century to limiting the 
free speech rights of Americans. And thus far, it has 
passed most legal hurdles, though the Supreme Court has yet 
to chime in.

The law is the Digital Millennium Copyright Act (DMCA). And 
its purpose was to thwart digital piracy by making it a 
crime to provide any device or software that could be used 
to circumvent the copyright protection on CDs and DVDs.

Although I have no argument with artists, the music 
industry, and the motion picture industry who want to 
protect their intellectual property from pirates, I do have 
a big problem with the scope of the current law.

In March, Federal judges ordered 321 Studios Inc., to stop 
marketing its best-selling DVD copying software because it 
could be used to decode commercial DVDs and make copies of 
them. The company said the purpose was simply to allow 
individuals to make back-up copies of their movies, in case 
the originals became scratched or destroyed. But the court 
didn’t buy it.

Other software companies have been selling products that 
try to side-step the overly-broad DMCA. A company called 
123 Copy DVD recently started selling a software package 
that will not decode commercial DVDs unless users download 
and install a patch that can be found on a Web site that is 
owned by the same company. With the patch installed, the 
software can copy most protected DVDs. 

The company claims it is legal, because the patch is not 
part of the package. But copyright attorneys say that the 
DMCA makes it a crime to simply instruct people on how to 
break copy protection codes.

I have owned a similar software package for several months. 
In that time, I’ve made personal copies of many movies on 
DVD. During that same period, I’ve also recorded onto DVD 
several movies that have been broadcast over my satellite 
service’s pay-per-view channel. It’s just like recording a 
program onto video tape, except I record it on a DVD for 
its superior quality.

I do not believe I have broken any copyright laws based on 
my interpretation of the “fair use” clause. That clause 
allows individuals to make copies of almost any copyrighted 
material for archival or personal use, as long as the 
copies are not put up for sale. And that is how the DMCA is 
violating consumers’ rights to make personal copies.

The DMCA also violates free speech rights, because not only 
does it prohibit copying of protected works, it also 
prohibits the publication of software code that could be 
used to make copies, even if the copies fall within the 
fair use envelope.

The Supreme Court has ruled against so-called “prior 
restraint” laws. It has ruled, for example, that 
communities cannot prohibit a public demonstration just 
because law enforcement officials believe that there is a 
good chance it will deteriorate into a violent clash. The 
High Court said that freedom of speech and assembly take 
priority over the fears of what might or might not happen.

By the same token, software that decodes commercial DVDs 
should not be illegal simply because it might be used by 
those who intend to pirate copyrighted works. It can also 
be used in compliance with copyright laws under the fair 
use clause. It seems to me that banning such software is a 
form of prior restraint.

This newspaper could, if it deemed appropriate, publish 
directions on how to manufacture a bomb, even a nuclear 
one, and it would be protected by the First Amendment. But 
if this newspaper published a few lines of text that 
contained information about how to decipher the copyright 
protection on a DVD or CD, those responsible for that 
publication could be fined or even jailed.

The priorities of our lawmakers seem to be out of whack. 

If Congress catches enough public flack from people who are 
not trying to pirate copyrighted material, but who simply 
want to take advantage of the fair use clause, maybe they 
will finally change that provision of the DMCA.