The IPAT Clinic has filed an amicus brief in federal court in Washington, DC in a closely-watched constitutional challenge to an obscure but important part of copyright law. The Clinic filed on behalf of long-time clients Kartemquin Films and the International Documentary Association, in Green v. United States Department of Justice, a case challenging the constitutionality of Section 1201 of the Digital Millennium Copyright Act. Section 1201 makes it illegal to break encryption on digital media, even when that encryption is thwarting important expressive conduct like criticism, commentary, research, and the like—deeply compromising filmmakers’ ability to make fair use.
Our clients depend on fair use to make commentary, criticism, instruction, add context, and report on current events by utilizing portions of digitized movies and other digitized content. But fair use is of little consequence if filmmakers cannot access the high-quality digital material they seek to use in the first place. Today the vast majority of film and video clips covered by fair use are locked behind encryption. Even though breaking encryption is necessary for nearly all filmmakers who wish to make fair use, the DMCA makes that a crime.
Since the IPAT Clinic’s founding, we have worked with independent and documentary filmmakers to try and mitigate the harms that have resulted from this law. Starting in 2008, filmmakers have participated in rulemaking proceedings at the Library of Congress every three years seeking exemptions that would allow filmmakers to break encryption for fair use purposes. And filmmakers have spoken eloquently about the problems with the DMCA both at the Library of Congress and in publications like Vice Magazine.
While independent filmmakers have been successful in getting exemptions that make a difference for their practice, the exemptions are deeply flawed and inconsistent, and the entire process is a burden on the public. The Section 1201 rulemaking requires filmmakers to undertake hundreds of hours of complex legal work and fact-gathering, which would be impossible without pro bono counsel.
A slide from a U.S. Copyright Office demonstrating the numerous steps involved in the rulemaking process required to exercise fair use; the slide provides support for a key point in our brief, which is that the rulemaking is too complicated to work as a “fail-safe” that squares Section 1201 with the First Amendment. (The slide actually leaves out some steps, including initial petitions and petitions for renewal.)
Enter Green v. DOJ, In 2016, a group of researchers filed a constitutional challenge to the DMCA arguing that Section 1201 violates the First Amendment, and the rulemaking process Congress created does not remedy the law’s constitutional defects. The case is now before the U.S. Court of Appeals for the District of Columbia.
Since 2008, Kartemquin and IDA have been at the forefront of a large coalition of groups representing thousands of independent filmmakers across the nation in DMCA rulemakings. In last week’s amicus brief, we shared our experiences with Section 1201, explaining that it impermissibly constricts filmmakers’ fair use rights by making it a crime to access encrypted digital content even when the underlying use is perfectly legal. We also described what the rulemaking has been like for filmmakers. The process has been hugely burdensome, and while the exemptions filmmakers have achieved have been useful, they are inconsistent, difficult to understand, and even more difficult to use. For this reason, with the IPAT Clinic’s help Kartemquin Films and the International Documentary Association have filed an amicus brief in the Green appeal.
“Section 1201 results in a significant burden on the documentary field,” said Kartemquin Films Founder and Artistic Director Gordon Quinn. “Every three years we have to seek an exemption to this rule in order to ensure that we can continue making our films which contextualize, critique and comment on previous works to support the stories we tell. We are hopeful that the court in this case will relieve this burden as we continue to exercise our right to fair use.”
The Supreme Court has said on several occasions that fair use is a “built-in First Amendment accommodation,” a safety valve that allows copyright to coexist with freedom of expression. As we expressed in the brief, this why Section 1201 raises serious constitutional issues: it makes fair use impossible in many circumstances. If Congress chooses to amend copyright it is free to do so—but not when if it restricts fair use.
UCI law students Luciano Alvarado, LaBreonna Bland, Alyx Bogus, Roxanne Markus, and Alexandra Stockton worked tirelessly on this project. “Researching and following the progression of the DMCA rulemaking was honestly shocking from a modern perspective,” said Alyx Bogus ’23. “This law, drafted and passed before Netflix, YouTube, or even Blu-ray discs existed, quickly became out of date as the internet and digital content evolved. In an increasingly digital landscape, it is critical that creators be able to obtain and use materials pursuant to fair use to preserve Copyright’s constitutional purpose of promoting the progress of science and the arts.”