Prior Restraint and Fair Use

by on September 7, 2007 · 4 comments

Regular TLF readers won’t be shocked to learn that I had some strong disagreements with the opinions expressed in this week’s podcast: (Update: This quote is Bill Rosenblatt of DRM Watch)

The problem with fair use is that you need a court to decide it. The whole idea of these digital content technologies is to make things happen immediately. Whenever you are in a situation where you have to revert to the legal system to figure out if you can or cannot do something, you lose. Because the legal system is very slow-moving and clunky and inefficient mechanism compared to technology. So everyone loves the fact that digital media can be distributed instantaneously and very very cheaply. But when there are deliberations about what’s kosher and not kosher, you’re often in the realm of deciding on fair use… You’re talking about what’s been called cut and paste culture, basically, which is a very controversial topic. You know, I’m not going to venture an opinion on whether that’s good or bad. I have no opinion about that. But there’s no reason why fair use has to be the mechanism that decides that or not. My feeling, which is an unconventional opinion and probably one that no lawyer would ever share is that fair use, in order to be made to work at all, needs to be expressed in ways that technology can accommodate.

The hidden premise here, which I think should be rejected outright, is the notion that our digital devices should, by default, disallow any uses of content that haven’t been explicitly approved beforehand by the copyright holder or a court. If that’s our operating assumption, then it’s absolutely true that fair use becomes cumbersome because it’s obviously not feasible to go to court every time I want to take a 5-second snippet from an iTunes song.

But this premise is precisely what the anti-DRM side of the debate objects to. From our perspective, digital technologies are tools. And it’s not the job of a tool to second-guess what the tool’s operator is doing. It’s illegal to go faster than 80 MPH pretty much everywhere in the United States, but cars don’t have built-in electronics that refuse to go faster than 80 MPH. It’s illegal to steal a gun and kill someone, but libertarians stoutly oppose any effort to mandate that guns have owner-recognition technology preventing their use by unauthorized individual. On any other issue, in other words, libertarians are opposed to the idea that the law force users to do what their tools tell them to do, rather than the other way around.

Traditionally, the onus of enforcing copyright law always rested with the copyright holder. If a consumer wasn’t sure if something was legal under fair use, he was free to try it out and then it was up to the copyright owner to decide whether to sue. SInce suing your customers was bad business, that meant that in practice, consumers had wide latitude to engage in casual, personal copying of copyrighted works without getting the courts involved. That’s what gave us mix tapes, time-shifting, and the MP3 format. DRM and the DMCA turn this situation on its head. Now when there’s a legal grey area, the default is to disallow the use unless it fits one of the permitted uses pre-programmed into the media device. Which means that a lot of perfectly innocuous uses are disallowed simply because it wasn’t worth the DRM manufacturer’s trouble to allow it.

There’s an analogy to prior restraint here. In First Amendment law, it’s well-established that the government cannot generally require a publisher to get prior government approval before publishing something. If the published material is libelous, violates trade secrets, or otherwise breaks the law, the injured party’s only remedy is to go to court after the fact seeking damages. (IANAL, so please correct me if I got the detail wrong here) Courts have taken this position because they recognized that the law ought to err on the side of free speech, and so the burden of going to court should rest with the party seeking to restrain speech. It seems to me that—especially for libertarians—this principle can be generalized to other issues, including copyright law. The DMCA is, in effect, a prior restraint on the freedom to use legally-acquired copyrighted material. It’s inappropriate for precisely the same reasons that prior restraints on speech are inappropriate.

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