by hn_acker | 2025-05-05 18:22:23+00:00
The Copyright Clause in the Constitution grants Congress the power to create copyright statutes, but does not itself create copyright. Federal copyright statutes defer to the First Amendment when they conflict. Copyright (a first-order speech restriction, where speech that infringes copyright is by definition unprotected by the First Amendment) is a bet: giving authors some extent of exclusive control over copying, distribution, and modification of their works will be better for freedom of speech than not giving any control. Fair use provides a flexible but imperfect safety valve for specific situations where the copyright bet might fail. Fair use is, by definition, not copyright infringement [1]. Therefore, I view the fair use statute (as well as the fair use doctrine prior to codification) as necessary for copyright law to avoid violating the First Amendment, and I believe that most restrictions on fair use rights are also restrictions on First Amendment rights.

The text of DMCA 1201 does not restrict fair uses [2]:

> (1)Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

However, in practice, DMCA 1201 has a plausible chilling effect on some fair uses and First Amendment protected speech. For example [4]:

> Opponents also say it creates serious chilling effects stifling legitimate First Amendment speech. For example, John Wiley & Sons changed their mind and decided not to publish a book by Andrew Huang about security flaws in the Xbox because of this law. After Huang tried to self-publish, his online store provider dropped support because of similar concerns. (The book is now being published by No Starch Press.)

Although the D.C. Appeals Court in Green v. Department of Justice found that the triennial rulemaking process for requesting exemptions to DMCA 1201 from the Library of Congress does not restrict freedom of speech [5], I emphatically disagree with the court in that regard because the Copyright Office summarizes the rulemaking process like this [6][7]:

> The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this ninth triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply for the next three years to persons who engage in certain noninfringing uses of specified classes of such works. This determination is based on the Register’s Recommendation.

Why would the Librarian of Congress need to provide exemptions when the "certain noninfringing uses" should already be exempted by the text of the DMCA 1201? That is, why would the granted exemptions include things that should already fall under fair use and the First Amendment in almost all cases, like "Audiovisual Works—Criticism and Comment—Filmmaking", "Audiovisual Works—Criticism, Comment, Teaching, or Scholarship— Universities and K–12 Educational Institutions", and "Literary Works—Text and Data Mining—Scholarly Research and Teaching" [6]? Why do advocacy groups have to affirmatively request and justify these 90%-fair-use exemptions which expire every three years? It sure seems to me like the writers of DMCA 1201, the Librarian of Congress, and someone at the Copyright Office observed or intuitively understood that DMCA 1201 would significantly restrict First Amendment protected speech in practice. Alternatively or in addition, said people observed or intuitively understood that fair use as an affirmative defense significantly fails to protect First Amendment protected speech in practice.

[1] https://www.law.cornell.edu/uscode/text/17/107

[2] https://www.law.cornell.edu/uscode/text/17/1201

[3] https://www.eff.org/deeplinks/2024/08/federal-appeals-court-...

[4] https://en.wikipedia.org/wiki/WIPO_Copyright_and_Performance...

[5] https://en.wikipedia.org/wiki/Green_v._Department_of_Justice...

[6] https://www.govinfo.gov/content/pkg/FR-2024-10-28/pdf/2024-2...

[7] https://www.copyright.gov/1201/2024/