Fair Use and the Digital Millennium Copyright Act

(by Angel Antkers & Susan Miller, Colorado Law 2Ls—cross-posted from the Authors Alliance blog)

The fair use doctrine allows the unlicensed, unpermissioned use of a copyrighted work in certain situations. It functions, in part, to safeguard First Amendment interests in freedom of speech. But as the world moves toward more digital authorship and online content, fair use is encountering various obstacles.

In 1998, Congress enacted the Digital Millennium Copyright Act (the “DMCA”), which includes a provision, Section 1201, that makes it illegal to circumvent technological protection measures (like digital rights management, or “DRM”). Section 1201 makes it incredibly difficult for authors to make fair use of many digital works because breaking the DRM may be illegal, whether or not the use is fair. For example, if an author were to create an e-book that commented on a video clip from another work, the author might not be able to rely on fair use to incorporate a copy of the DRM-protected video clip in his or her work.

As a result, Section 1201 creates a chilling effect on speech. Authors may fear liability and as a result may choose not to create content in the first place. There is even pending litigation over whether the DMCA procedure itself is a speech licensing regime and unconstitutional as a result.

Some proponents of fair use believe the DMCA gives copyright holders far greater power than before its enactment. In addition to Section 1201, the expression of speech and creativity is also hindered by the DMCA’s notice and takedown provisions. Under Section 512’s notice and takedown provisions, if a copyright owner comes across infringing content online posted by another user, they may submit a notification to the online service provider hosting the content. Upon receiving the notice, the service provider may block access or remove the content in order to benefit from Section 512’s safe harbors for online service providers. Though a DMCA takedown notice may be sent for a valid purpose, other less legitimate reasons could also motivate a takedown notice. For example, if a copyright holder simply dislikes your First Amendment-protected critique of their work, they might send a takedown request. If the online service provider acts on the takedown request, it may limit your ability to speak freely through fair use.

Although some takedown requests may be a valid use of the DMCA’s notice and takedown provisions, abuses of notice and takedown abound. A recent instance of a takedown occurred when a gamer critiqued a video game and the developer initiated a DMCA takedown after a Twitter fight ensued between the gamer and developer. Thus, despite legitimate engagements with fair use, authors and creators alike may face difficulty in the context of the DMCA.

The TLPC and the University of California Irvine Intellectual Property, Arts, and Technology Clinic have been working with Authors Alliance to help authors exercise their fair use rights under the DMCA. Most recently, we filed an exemption on behalf of authors in the face of the DMCA’s anti-circumvention restrictions. This exemption would allow authors to incorporate multimedia elements from DRM-protected works in fiction e-books. Without such an exemption, authors could face liability even if they were to engage in legitimate fair use under the current DMCA system.