First Amendment Speech and the Digital Millennium Copyright Act: A Proper Marriage

Abstract:     
Digital Millennium Copyright Act (DMCA) anti-circumvention rules have been the subject of intense attacks, many of which come from a group of activists who can be described as rights restrictors and whose position on intellectual property issues favors a lessening in law and in practice of the scope of intellectual property rights. Among the attacks have been claims that DMCA is unconstitutional.

This article argues that when the DMCA is viewed in proper context it satisfies applicable First Amendment tests and, indeed, is a pro-speech law, responding to changes caused by digital technology which threaten to reduce incentives for the creation and dissemination of creative works by making unauthorized reproduction and mass distribution of those works far easier than under prior technology. The relationship between law and innovation is complex and its balance has been altered by digital systems. Protecting the use of circumvention technology is a rational response to reinstating or maintaining the incentives to create and disseminate copyrighted works. The DMCA does that in a manner the impact of which expands both proprietary and public domain information. As content-neutral regulation, the constitutional test of validity for DMCA is whether substantially more speech is regulated than is necessary to achieve the governmental purpose. In fact, in most cases, DMCA-regulated conduct does not involve speech and, to the extent that it does, it properly focuses on conduct elements in a content neutral manner despite incidental impact on speech.

Keywords: software, DMCA, copyright, encryption, circumvention, computer, computer program, lexmark

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