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The Dmca, Decryption, And Building Fences In Cyberspace

Thursday, Dec. 20, 2001

The Digital Millennium Copyright Act (DMCA) has made it illegal to use technology that unlocks the lock on a computer code. In computer-speak, the unlocking is "decryption" and the locking is "encryption."

Many, including myself, were initially critical of Congress for hindering the technological development of decryption codes by outlawing them via the enactment of the DMCA. But now we have a judicial opinion—the recent decision in Universal v. Reimerdes, issued by the Second Circuit Court of Appeals -- that interprets the DMCA's decryption provisions to prohibit publication of decryption codes, and I must say that the DMCA seems less problematic now than it did before it was tested.

While Reimerdes raises interesting First Amendment issues (some of which were explored by FindLaw's Julie Hilden in a column posted last week), it is also very significant for another reason. That reason is related not only to the law of free speech but to copyright law and the related law of "fair use," as well as to property law.

Protecting Ephemeral Intellectual Property

In the pre-digitized world, the copyright right was abstract and ephemeral, but all of the offending copies were three-dimensional objects, whether they were on paper, vinyl, or photographic paper. Accordingly, you could guard your intellectual property from being copied by standing guard over concrete objects, and you could identify the infringing copies by pointing to three-dimensional objects. Not anymore.

Now, the work itself and the copies of it are abstract and ephemeral; they do not have a physical existence and may last only for a limited time. The question is whether we can build fences around such works to keep out interlopers for the term of protection.

In the heyday of the infant Web, Napster, and hackers, the answer seemed to be "no." Excluding others from access to incorporeal intellectual works was impossible and therefore the legal system, including copyright law, seemed anachronistic.

Then technology and its lobbyists caught up. First, the technology appeared that makes it possible to exclude others from one's digitized works—encryption.

Second, lobbyists for those who want to protect their works on the Web (particularly media companies) won in Congress the right to prohibit the use of technology that could break their encryption. That right was established through the DMCA.

Voila—through these two steps, a boundary fence that can be locked and legally protected against trespass was created. If nothing else, the Reimerdes decision stands for that proposition -- and it is an awfully remarkable one, given that, as little as a year ago, the view that the Web could not be made safe for private property was so widespread as to become the conventional wisdom for some. A confident "no" on the question of whether intellectual property can be protected on the Internet is increasingly morphing into a confident "yes."

Arguments for a Constitutional "Fair Use" Right Lack Supporting Precedent

The main challenge to the DMCA has run along the following lines: If someone can lock up their copyrighted work, and no decryption is permitted, then citizens will not have access to the work, and there will be no possible "fair use" -- that is, unlicensed but legal use that is protected by the "fair use" exception to the copyright law. That would be not only unfortunate, they argue, but unconstitutional -- for the First Amendment creates a right of access to copyrighted works. So they say.

There Is No Right of Access to Others' Copyrighted Material

The copyright law has never instituted a right of access to any work. For example, if a private individual owns the only copy of a painting, and locks the painting in a closet during its entire term of copyright protection, no doctrine or law under copyright gives another the right to open that closet door to use the work.

Indeed, in all of First Amendment law, there is only one Supreme Court case that arguably stands for a right of access, Board of Education v. Pico. In that case, the Court held that a school could not remove books from its library according to their content. But the right established by that case -- a right of access by students to books already purchased by their school's library, or at least a right not to have that access denied based on the books' content -- is a far cry from a right of everyone to have access to any book printed, which is the absurd result of a right-of-access theory of the First Amendment.

Fair Use Means a Right to Use, But Only if Access Is Legal

If the decision in Reimerdes is right, and I think it is, it turns out that the fair use doctrine under copyright law confers a right to use, but -- crucially -- a right to use only in the event of legal access. Fair use does not create a defense for the trespasser who walks into the private home to get a good look at the one-of-a-kind painting. However, it does create a defense for the person who saw the painting legally and then used it for certain, limited purposes (for example, partially replicating its figures in the context of another work that forms a commentary on the original). In sum, if there is no legal access, there is no legal use, fair or otherwise.

The Reimerdes case is exciting, because it has identified a type of cyberfence that can be legally enforced on the Web. It is, to be sure, an early cyberfence, one that will look quaint in the light of further technological developments. But it opens the door to a Web that is starting to replicate the crucial characteristics of our pre-existing legal culture: private property enforced through the rule of law.  

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Her prior columns on copyright, cyberlaw and First Amendment issues may be found in the archive of her pieces on this site.

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