Image – Getty iStockphoto: Amy Sparwasser
By Porter Anderson, Editor-in-Chief | @Porter_Anderson
Pallante: ‘A Forceful Affirmation’
The case known as Matthew Green v. DoJ was filed in 2016 by the Electronic Frontier Foundation, challenging prohibitions in the United States’ Digital Millennium Copyright Act (DMCA) on circumventing technological measures that protect copyrighted works.
The Association of American Publishers (AAP) in February filed an amicus brief along with four brother creative industries’ associations:
- The Entertainment Software Association
- The Motion Picture Association
- The Recording Industry Association of America
- News/Media Alliance
A decision issued this morning (August 2) by the District of Columbia’s Court of Appeals has rejected the Electronic Frontier Foundation’s challenge, in the words of the publishers’ association, “confirming the symbiotic relationship of Copyright Law and Free Expression.”
At one point, the opinion handed down today is summarized by the publishers this way: “Trafficking in circumvention technology is akin to selling lock picks to break into bookstores.”
This is the essence of the case in the view of book industry professionals battling digital piracy.
Maria A. Pallante
Maria A. Pallante, president and CEO of the AAP, in her reaction today says, “The court’s opinion is a forceful affirmation of the symbiotic relationship between copyright and free expression.
“When enacting the DMCA more than 25 years ago, Congress understood that technological protections would be an increasingly important adjunct to legal protections for authors, publishers, and the lawful marketplace for creative works.
“In rejecting the Electronic Frontier Foundation’s arguments today, the court rejected theories that would normalize piracy over public progress.”
Amicus Brief: ‘A Single Pirated, Perfect Copy’
Our international readership of trade book publishing executives and rights specialists may not be familiar with the phrase circumvention technology.
As we know, copyright owners at times may use technological ways of protecting their work. Passwords may be the simplest example of this, along with various means of encryption and other procedures. To circumvent such a measure is to “unlock” copyrighted content the owner of which has “locked.” If you have two-factor authentication in place, for example, someone who gets around that through a technological work-around can be said to be using that tech to circumvent what is lawfully and rightly protected.
The amicus brief filed by the five creative-industry organizations in February read, in part:
“In our digital age, a single pirated, perfect copy of a copyrighted work can find its way onto the Internet, where billions of people can access, reproduce, and distribute the infringing work without cost. Streaming video services, digital newspaper subscriptions, and unlimited streaming music services have become some of the most popular platforms on the Internet and on mobile devices. Unauthorized access to these services gravely undermines the viability of these platforms.
“To encourage the development of these kinds of consumer-friendly content offerings, Congress enacted Section 1201 [of the Digital Millennium Copyright Act], which, consistent with centuries-old precedent, expanded the rights of copyright owners where necessary to preserve and further copyright’s core objectives.
“Congress enacted this new safeguard to encourage the development of these kinds of consumer-friendly, content offerings. The economic harm to the copyright owner resulting from unauthorized access and concomitant widespread infringement increases the owner’s cost of disseminating expressive works, making access to those works more difficult for many cost-conscious consumers.”
And today’s decision filed by Judge Nina Pillard for the court makes it clear that she has heard the position of the associations in their amicus brief.
“If every work that the public might wish to access ‘could be pirated away’ via circumvention, soon nothing worth reading would be published electronically.”Judge Nina Pillard
“If every work that the public might wish to access ‘could be pirated away’ via circumvention,” the opinion reads, “soon nothing worth reading would be published electronically. [The] plaintiffs’ premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements [that] copyright law validly protects.
“Consumers’ access to copyrighted work routinely requires consent from the copyright owner—typically obtained by paying for access subject to certain limitations on use.”
Referring to the piracy of digital property as “a modern form of theft,” Pillard writes, “The First Amendment protects a right to read, but it does not grant unimpeded access to every reading material a reader might wish for.
“Similarly, the First Amendment does not guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression. To hold otherwise would defy the First Amendment’s solicitude of speakers’ control over their own speech.”
“The Electronic Frontier Foundation’s case in 2016 argued on behalf of two plaintiffs that Section 1201 of the Digital Millennium Copyright Act is unconstitutional under the First Amendment,” the AAP’s media messaging today reads. “The DC Circuit previously rejected their as-applied challenge in 2022 and today rejected their facial challenge, which argued that the statute is both unconstitutionally overbroad and a prior restraint on speech.”
The Pillard opinion from the District of Columbia Circuit Court is here. And the February amicus brief from the AAP and its organizational associates is here.
More from Publishing Perspectives on copyright is here, more on the work of the Association of American Publishers is here, and more on book piracy is here.