Asay on the DMCA’s Anti-Circumvention Provisions

Clark D. Asay (Brigham Young Law) has posted “An Empirical Study of the DMCA’s Anti-Circumvention Provisions” on SSRN. Here is the abstract:

The DMCA has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is Section 1201. Among other things, Section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about Section 1201 empirically. While certain aspects of the broader DMCA have received empirical assessments, Section 1201 has not. Our understanding of Section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. But this anecdotal evidence is hardly a solid basis for ongoing discussions about how Section 1201 is performing and whether it needs revising. In this Article, we seek to address these and other issues.

To do so, we conducted a broad-based search of Westlaw to collect every issued opinion, whether reported or not, where a court purported to apply some part of Section 1201. We then reviewed these cases to glean as much useful information about Section 1201 as possible. This review led to a number of important and, in some cases, surprising results. First, Section 1201 opinions are a relative rarity. In the nearly quarter of a century since the DMCA’s enactment, we could find only a little over 200 opinions, with only about sixty of those being published. The average number of opinions during the DMCA’s existence has been around nine annually, which pales in comparison to other types of copyright cases. Second, despite the Second Circuit receiving much attention in anecdotal accountings of Section 1201, courts within it issue Section 1201 opinions infrequently. The Ninth Circuit is the dominant Section 1201 court, both in terms of citations to its opinions and overall number of opinions, and the Sixth and Eleventh Circuits both issue more Section 1201 opinions than the Second Circuit. This result stands in contrast to other types of copyright litigation, where the Second Circuit is a behemoth. Third, the most common subject matter in dispute in Section 1201 cases is computer software, followed distantly by audiovisual material such as movies. Music stands in last place, showing up in only a couple issued opinions. Debates at the time of the DMCA’s enactment were informed by widespread fears of copyright infringement relating to digital music and other types of digital content. Yet Section 1201 has resulted in but few litigations involving those subject matters. Fourth, suits and defaults against individuals happen frequently in the Section 1201 context, with courts often assessing large statutory damages against those individuals. As we discuss in the paper, this result raises important equity issues. Fifth, despite Section 1201 including a number of statutory exceptions, these exceptions basically never make their way into issued opinions. Fair use, too, only infrequently enters courts’ Section 1201 discussions. This means, effectively, that the primary way to escape Section 1201 liability is through administrative exceptions granted by the Library of Congress on a triennial basis. But as we shall see, this process has significant holes. Finally, plaintiffs disproportionately win Section 1201 cases. This result is somewhat bloated because of the frequency of defaults against individuals. Setting these aside, plaintiffs still enjoy tremendous success under Section 1201. However, when looking at opinions only outside of the Ninth Circuit, win rates become mostly even.

I conclude with several calls for DMCA reform. These include bolstering statutory exceptions and more closely tying Section 1201 to copyright infringement. Pursuing these reforms, I argue, will more faithfully align Section 1201 with its purported objectives.

Keane Woods on Public Law and Private Platforms

Andrew Keane Woods (University of Arizona Law) has posted “Public Law, Private Platforms” (107 Minnesota Law Review 124 (2023)) on SSRN. Here is the abstract:

Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become our public spaces, but because they are privately owned and “merely” coordinate private ordering, they operate without the guardrails of many of our most important laws.

For example, anti-discrimination law once covered nearly all short-term bookings at inns and hotels; today, nearly a quarter of the hospitality market is controlled by Airbnb, where the majority of bookings are in owner-occupied homes that are exempt from anti-discrimination law’s reach. The First Amendment once protected against the gravest threats to free speech; today, scholars question whether it is fit to handle the novel speech problems presented by social media. The Fourth Amendment once prevented the police from gaining warrantless access to our most private information; today, the police simply buy that data on the open market. The list goes on. While criminal law and speech scholars have noticed the state action problem in constitutional law, and civil rights scholars have discussed the private carveouts in anti-discrimination law, there is little scholarship moving beyond these silos to explore how these different regulatory puzzles stem from the same fundamental problem.

Recognizing that the public/private distinction is the core of the platform problem has a number of implications. It helps explain the platforms’ persistent ability to evade meaningful regulation and it suggests a new way forward—a more suitable remedy than using blunt antitrust tools to address our biggest social ills. Specifically, courts and legislators should revive and expand the legal doctrines that recognize the imperfect nature of our law’s distinction between public and private. These private-but-public doctrines—like public accommodations, the public policy doctrine in contract, the public trust doctrine in property, and more—have long recognized the limits to private ordering in the public interest. It is time to update them for the digital age.