Sold Downstream: Free Speech, Fair Use, and Anti-Circumvention Law

Authors

R. Terry Parker, Franklin Pierce Law Center, Concord, NH

Abstract

[Excerpt] “Here’s a hypo. Living in Asia, I purchased a shameful amount of music and movies, all legit purchases through reputable stores, HMV and Tower Records, but little of which will get reissued. I wanted to preserve my collection but software in the discs prevented me from ripping backup copies to my computer. Lacking the technological savvy to get around this software myself, I purchased and used a product to help me circumvent these controls. Discuss.

Courts agree that copying the music and movies here is infringement but that fair use may provide a defense. However, courts do not agree as to whether or not fair use provides a defense when determining the liability of selling products that enable me to access and copy my CDs to my computer. This article examines a line of cases in the Ninth Circuit that hold that fair use or lawfulness of copying is irrelevant in calculating liability under the Digital Millennium Copyright Act (DMCA) and another line of cases in the Federal Circuit which hold that fair use should be relevant. In particular, this article argues that calculating fair use into the analysis is crucial in maintaining the balance between the First Amendment’s protection of free speech rights and copyright’s regulation of speech.

Part I will outline the relationship between free speech rights and copyrights, noting the important role that fair use plays in keeping this relationship harmonious. Part II will outline the anti-circumvention provisions in the Digital Millennium Copyright Act and argue that these broad brush provisions chill speech. Part III will discuss two streams in the current law: first, the Ninth Circuit’s decisions 321 Studios v. Metro Goldwyn Mayer Studios, Inc.1 and Sony Computer Entertainment America, Inc. v. Divineo; 2 and, second, the Federal Circuit’s decisions in The Chamberlain Group, Inc. v. Skylink Technologies, Inc.3 and Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc.4 Part IV will argue that the Federal Circuit’s approach to fair use is favored. However, an alternate analysis toward their conclusion would have more constitutional integrity. Namely, the DMCA, as applied to software, should be seen as a content-based restriction on speech and should not be read to prohibit circumvention of access controls where the circumvention would not constitute a copyright violation.”

Repository Citation

R. Terry Parker, Sold Downstream: Free Speech, Fair Use, and Anti-Circumvention Law, 6 Pierce L. Rev. 299 (2007), available at http://scholars.unh.edu/unh_lr/vol6/iss2/7