Outtakes from my Q&A with the DMCA
Tech Law Advisor (“TLA”): I’d like to welcome our guest today, the Digital Millennium Copyright Act.
The Digital Millennium Copyright Act, 17 U.S.C. §§ 1201, 1202, (“DMCA”): Thanks. I’m happy to join you.
TLA: Under what provision were you enacted?
DMCA: That’s rather obvious I would think. Pursuant to the Copyright Clause of the U.S. Constitution.
TLA: But then how do you explain the fact that you fail to provide access to non-copyrightable materials bundled with protected works? The Supreme Court pursuant to the Copyright Clause seems to require originality to be protected.
DMCA: These materials are generally otherwise available, its not like a state of perpetual lock-up exists.
TLA: Well, what about the fact protected works seem to be locked up perpetually. Doesn’t the Copyright Clause limit the term of protection for a work. Wouldn’t this violate the constitution? Professor Nimmer has stated that a “federal copyright statute that purported to grant copyright protection in perpetuity would clearly be unconstitutional.”*
DMCA: Oh, I actually meant to say that I was enacted pursuant to the Necessary and Proper Clause.
TLA: My understanding is that the Necessary and Proper clause can not abrogate the limits of the Copyright Clause?
DMCA: Oh, I actually meant to say that I was enacted pursuant to the Commerce Clause.
TLA: Well, I still have some of the same problems. First, “the 'limited Times" provision bars Congress from granting perpetual protection. Second, the Supreme Court has indicated that where there are limitations on an Article I, Section 8 power, Congress is not free to ignore these limitations. Clearly your very existence is beyond the power of Congress? Isn’t it.
DMCA: …..
The Digital Millennium Copyright Act, 17 U.S.C. §§ 1201, 1202, (“DMCA”): Thanks. I’m happy to join you.
TLA: Under what provision were you enacted?
DMCA: That’s rather obvious I would think. Pursuant to the Copyright Clause of the U.S. Constitution.
TLA: But then how do you explain the fact that you fail to provide access to non-copyrightable materials bundled with protected works? The Supreme Court pursuant to the Copyright Clause seems to require originality to be protected.
DMCA: These materials are generally otherwise available, its not like a state of perpetual lock-up exists.
TLA: Well, what about the fact protected works seem to be locked up perpetually. Doesn’t the Copyright Clause limit the term of protection for a work. Wouldn’t this violate the constitution? Professor Nimmer has stated that a “federal copyright statute that purported to grant copyright protection in perpetuity would clearly be unconstitutional.”*
DMCA: Oh, I actually meant to say that I was enacted pursuant to the Necessary and Proper Clause.
TLA: My understanding is that the Necessary and Proper clause can not abrogate the limits of the Copyright Clause?
DMCA: Oh, I actually meant to say that I was enacted pursuant to the Commerce Clause.
TLA: Well, I still have some of the same problems. First, “the 'limited Times" provision bars Congress from granting perpetual protection. Second, the Supreme Court has indicated that where there are limitations on an Article I, Section 8 power, Congress is not free to ignore these limitations. Clearly your very existence is beyond the power of Congress? Isn’t it.
DMCA: …..
