I Have My Rights!

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Fair use, the Constitution, and case law. – Ed

I’m getting some folks who think their “rights” are being violated. Problem is, they’re claiming rights that don’t exist, at least not to the extent or degree they think they exist.

There seems to be a very big misconception out there about what “fair use” is. To quote one recent piece:

“While the Constitution grants customers certain rights with regard to copyrighted material, the entertainment industry very much wants to separate us from those rights.”

Is this the case?

A Very Quick History

To keep this very simple, copyright was provided in the Constitution to promote the progress of science and useful arts by giving its creators financial rights to their works. In short, to encourage people to produce work for the benefit of the public.

Fair use is never mentioned in the Constitution (not even mentioned in any copyright law until 1976). Rather, it originated in the courts during the nineteenth century as a means by which producers of intellectual property could make limited use of the work of others (and allow somewhat freer use for nonprofit educational purposes).

There’s an inherent tension between the producers’ right to enjoy the financial benefits of their work, and the public benefit from such work. As in most constitutional issues, a court has to decide which claim has the greater priority in a particular situation.

Legal vs. Constitutional Rights

You have legal rights, and you have constitutional rights. The difference between the two is that a legal right can be changed or taken away, while a constitutional right can’t (short of a constitutional amendment).

In the areas we are concerned with, in general, the fair use rights that exist are legal, not constitutional rights. Certain specific actions are called OK by a specific provision of the law. Congress can giveth, and Congress can taketh away.

This can also work the other way, too. Copyright owners get certain rights, not absolute rights. If they can’t show that some use seriously hurts the rights they do have, the courts are unlikely to prevent that use.

I Have The Constitutional Right to Make A Copy!

You don’t, though it’s understandable why you might think that.


The court case cited for this argument is Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (this is often known as the Betamax case).

The Supreme Court essentially said the following in Sony:

1) We generally uphold whatever Congress decides is OK or not in the area of copyright; it’s their responsibility.

2) However, because Congress never passed anything covering this area, we look at this and say that the producers’ copyright rights are not substantially infringed by the use of VCRs.

So being able to copy off VCRs is a legal right, not a constitutional right. If Congress had passed a law prohibiting VCRs, the Supreme Court would have decided the other way.

Had they considered copying VCRs an inherent constitutional right, it wouldn’t have mattered what Congress did, and they would have ruled any ban on VCRs unconstitutional.

(Actually, Congress later decided that what the court said about Sony was a good idea, and provided a home taping exception to the copyright law, which we’ll hear more about below).

Rio and Napster

Some of you who read the article linked above might have remembered that it said that “the Ninth Circuit Court of Appeals ruled that .mp3 players did not violate copyright law because customers have the right to “space shift” music they have purchased.”
Indeed they did in RIAA v. Diamond Multimedia. Unfortunately, they didn’t give you the whole story.

In this case, the RIAA sought to have the Rio MP3 player banned from the United States under certain provisions of the DMCA. The court rejected this, not because they found parts of the DMCA unconstitutional, but because the Rio didn’t qualify as a “digital audio recording device” under those specific provisions of the DMCA.

They also indicated that people had a legal (not constitutional) right to make copies for their private, noncommercial use because of a specific provision in the Copyright Act which allows this.

So making a copy under those conditions is OK because there’s a law that says so. The law could be repealed or modified tomorrow. That’s pretty unlikely, but Congress could, and then the courts would render much different decisions. (BTW, the Hollings bills do have the equivalent of home taping exceptions.)

More importantly, the court that made this decision is the same court that destroyed Napster two years later in A&M Records v. Napster.

As you might guess, Napster brought up the Rio case, and this is what the court said about that:

Napster also maintains that space-shifting is a fair use. Space-shifting occurs when a Napster user downloads MP3 music files in order to listen to music he already owns on audio CD. Napster asserts that we have already held that space-shifting of musical compositions and sound recordings is a fair use. See Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999) . . . .

We conclude that the district court did not err when it refused to apply the “shifting” analyses of Sony and Diamond. Both Diamond and Sony are inapposite because the methods of shifting in these cases did not also simultaneously involve distribution of the copyrighted material to the general public; the time or space-shifting of copyrighted material exposed the material only to the original user. In Diamond, for example, the copyrighted music was transferred from the user’s computer hard drive to the user’s portable MP3 player. So too Sony, where “the majority of VCR purchasers . . . did not distribute taped television broadcasts, but merely enjoyed them at home.” Conversely, it is obvious that once a user lists a copy of music he already owns on the Napster system in order to access the music from another location, the song becomes “available to millions of other individuals,” not just the original CD owner. See UMG Recordings, 92 F. Supp. 2d at 351-52 (finding space-shifting of MP3 files not a fair use even when previous ownership is demonstrated before a download is allowed); cf. Religious Tech. Ctr. v. Lerma, No. 95-1107A, 1996 WL 633131, at *6 (E.D. Va. Oct. 4, 1996) (suggesting that storing copyrighted material on computer disk for later review is not a fair use).

The Critical Differences Between Sony And Digital Media Today

There a big legal and one big factual difference between the VCRs of yesterday and the copying mechanisms of today.

The legal difference is that there was no law governing VCR, but there is for digital media: the Digital Milennium Copying Act (or DMCA). Congress has spoken here, and the only way a court can ignore the provisions of the law is to rule them unconstitutional.

The factual difference (as noted in the Napster case above) is that a copy of a VCR program cannot be easily distributed, while digital media can.

A Test Case for A New Generation

A current case that is likely to be appealed to the Supreme Court fairly shortly is Universal v. Reimerdes.

This case deals with a permanent injunction against the distribution of DeCSS, which circumvents the copy protection on DVDs.

The defendants are basically claiming that portions of the DMCA violate constitutional provisions against free speech and fair use.

So far, they’re losing on all counts. The case is at the appellate level, one level below the Supreme Court, and you can see the US Second Circuit Court of Appeals decision here

Per free speech, the court said that an injunction against DeCSS (and the provisions of the DMCA which enable that) doesn’t violate free speech because the program is being banned not because of what it says, but what it does.

The Government seeks to “justif[y]” . . . both the application of the DMCA and the posting prohibition to the Appellants solely on the basis of the functional capability of DeCSS to instruct a computer to decrypt CSS. . . . This type of regulation is therefore content-neutral . . . .

As a content-neutral regulation with an incidental effect on a speech component, the regulation must serve a substantial governmental interest, the interest must be unrelated to the suppression of free expression, and the incidental restriction on speech must not burden substantially more speech than is necessary to further that interest.

The Government’s interest in preventing unauthorized access to encrypted copyrighted material is unquestionably substantial, and the regulation of DeCSS by the posting prohibition plainly serves that interest. Moreover, that interest is unrelated to the suppression of free expression. The injunction regulates the posting of DeCSS, regardless of whether DeCSS code contains any information comprehensible by human beings that would qualify as speech. . . .

Although the prohibition on posting prevents the Appellants from conveying to others the speech component of DeCSS, the Appellants have not suggested, much less shown, any technique for barring them from making this instantaneous worldwide distribution of a decryption code that makes a lesser restriction on the code’s speech component.

It is true that the Government has alternative means of prohibiting unauthorized access to copyrighted materials. For example, it can create criminal and civil liability for those who gain unauthorized access, and thus it can be argued that the restriction on posting DeCSS is not absolutely necessary to preventing unauthorized access to copyrighted materials. But a content-neutral regulation need not employ the least restrictive means of accomplishing the governmental objective. It need only avoid burdening “substantially more speech than is necessary to further the government’s legitimate interests.” The prohibition on the Defendants’ posting of DeCSS satisfies that standard.”

The claim that there is a constitutional right to “fair use” is given even less respect.

“Asserting that fair use “is rooted in and required by both the Copyright Clause and the First Amendment,” the Appellants contend that the DMCA, as applied by the District Court, unconstitutionally “eliminates fair use” of copyrighted materials, id. at 41 (emphasis added). We reject this extravagant claim.

Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement. . . .

We need not explore the extent to which fair use might have constitutional protection, grounded on either the First Amendment or the Copyright Clause, because whatever validity a constitutional claim might have as to an application of the DMCA that impairs fair use of copyrighted materials, such matters are far beyond the scope of this lawsuit for several reasons. In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.

Second, as the District Court properly noted, to whatever extent the anti-trafficking provisions of the DMCA might prevent others from copying portions of DVD movies in order to make fair use of them, “the evidence as to the impact of the anti-trafficking provision[s] of the DMCA on prospective fair users is scanty and fails adequately to address the issues.”

Third, the Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions. One example is that of a school child who wishes to copy images from a DVD movie to insert into the student’s documentary film.

We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a “horse and buggy” technique in making fair use of DVD movies, the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.”

In short, you have no constitutional right to convenience.

(This decision also looks at the issue of whether or not other websites linking to the original site with the program are protected under the First Amendment, and while they ruled against that, too, they are much queasier on that subject. However, if a place can’t point such an item, linking to it becomes moot).

Is This The Last Word?

Not yet, anyway. I don’t doubt this will end up being appealed to the Supreme Court. Should they take the case, and rule, that will be a definitive decision.

However, to put it mildly, the defendants are going to have a steep uphill climb getting a much different decision from the Supreme Court.

And anybody you tells you otherwise, anyone who tells you or implies that copying anyway you see fit is an enshrined constitutional right, is completely clueless and while they might have the right to talk nonsense, that’s all it is.

Email Ed

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