Ruling Imagination: Law and Creativity

The futility, and perhaps unconstitutionality, of locking down your digital creations

DRM (”Digital Rights Management,” a/k/a digital copy protection or digital locks) restricts the ways you can copy and distribute your digital media.  I’ve heard even artists suggest that advances in digital locks will solve the problems they think are posed by the ease with which digital media can now be duplicated and disseminated.

The Digital Millennium Copyright Act,(the “DMCA”) purports to make it unlawful to override a CD or DVD’s digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

I seriously doubt, however, that a court could impose liability under the DMCA on someone who evades DRM protection to copy material he subsequently uses for a legitimate, non-infringing use.  Fair use is grounded in the Constitution, both in (1) the “Copyright Clause,” which gives Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” and (2) in the First Amendment protection of free speech.

In other words, fair use is a constitutional right, and constitutional rights cannot be infringed by mere legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary’s Inner Tracy Flick video are in violation of the DMCA’s provision making it unlawful to copy material under DRM protection even though the video otherwise makes fair use of scenes from the movie Election. Thus, Soghoian concludes, if the creator of the video “used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash-up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit.”

I don’t buy it.  Many, many digital forms of media state, in effect, that “no copying of the information contained herein is permitted by its creator for any purpose.” Standing alone, those statements are meaningless. Plainly, one can make unauthorized copies of information for many purposes. Nor could Congress pass a constitutionally effective law that purported to make those and similar statements enforceable. Again, if you have a constitutional right to copy and use copyrighted materials, a constitutional amendment would be required to take away that right.

I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than a bare declaration that any copying is unlawful.  No statute can make enforceable mere declarations that unauthorized copies are illegal.  I really don’t see why an easily evaded digital lock is, for these purposes, any different.