8-Year-Old Constitutional Puzzle on DMCA Circumvention Exemptions Finally Teed Up
In addressing a TracFone challenge to the new right to unlock cellphones (CD March 9 p3), a federal judge finally must grapple with an 8-year-old constitutional quandary: When the Copyright Office creates 3-year exemptions to the ban on circumvention of technical protections of copyrighted works, is it acting as an arm of the executive or legislative branch? The U.S. and TracFone each have answered both ways. Written arguments over DoJ’s motion to dismiss the company’s suit or grant summary judgment -- wrapped up last week in U.S. Dist. Court, Miami -- ask Judge Donald Graham to decide. The parties have asked him for a hearing on the arguments and are awaiting his decision, a court official said Wed.
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In the balance are the cellphone exemption and 5 others set last year and valid until 2009, and future exceptions, created every 3 years under the Digital Millennium Copyright Act (DMCA). Uncertainty over its authority may have made the Copyright Office cautious in creating exemptions back to the first rulemaking in 2000, Justin Hughes, Intellectual Property Law Program dir. at the Cardozo School of Law, said Fri. at a conference on DRM and copyright at the U. of Cal., Berkeley. David Carson, a senior Office lawyer, denied uncertainty over the constitutional question or hesitation in the DMCA work.
TracFone says either the Copyright Office’s exemption rulemaking is executive-branch work and Congress illegally delegated the power, or it’s legislative work and violates the separation of powers. The Copyright Office is part of the Library of Congress, but its rulemakings usually aren’t deemed legislative. At a State Bar of Cal. event last week, Carson called the arguments contradictory. TracFone outside attorney Jim Baldinger said his client’s positions are garden-variety legal arguments in the alternative.
The govt. position isn’t much more straightforward. In its papers in the TracFone suit, DoJ said Copyright Office anticircumvention rulemakings are clearly administrative, not congressional -- for separation of powers purposes. A 1978 4th Circuit ruling in Eltra v. Ringer, upholding the Office’s copyright registration against a similar challenge, is among the appeals rulings the Dept. cites as upholding its position. Though “the Library of Congress clearly performs functions that assist Congress, the Librarian and the Register conduct rulemakings as an independent agency. Congress exercises no appointment or removal authority on the Librarian or the Register and has no direct influence on the DMCA rulemaking process,” it said.
But for purposes of the Administrative Procedure Act, which TracFone contends the 2006 exemption rulemaking also violated, such proceedings are definitely legislative, and so not covered by the APA, DoJ said. TracFone called the 2 DoJ positions contradictory, but the department said its reading of APA, a statute, fits with its constitutional analysis of the separation of powers.
From the DMCA’s birth, the U.S. has issued conflicting characterizations of which branch Office exemption work fits beneath. In his signing statement of Oct. 1998, President Bill Clinton flagged the topic as important constitutionally, noted congressional statements that the Copyright Office would work in a legislative capacity and took the contrary position in defense of executive prerogatives: “I am advised by the Department of Justice that certain provisions of H.R. 2281 and the accompanying Conference Report regarding the Register of Copyrights raise serious constitutional concerns,” Clinton said: “Contrary to assertions in the Conference Report, the Copyright Office is, for constitutional purposes, an executive branch entity… Congress may not require the Register to act in a manner that would impinge upon or undermine the President’s discretion under Article II, section 3 of the Constitution to determine which, if any, executive branch recommendations to the Congress would be ‘necessary and expedient.’ Accordingly, I will construe” Sec. 103(a), including the provisions on circumventions and exemptions, “to require the Register to perform duties only insofar as such requirements are consistent with these constitutional principles.”
TracFone’s 3rd argument is that the Copyright Office violated due process by excluding it from the rulemaking by issuing Federal Register notices that didn’t mention the exemptions under consideration and by denying the company a chance to participate when it learned of the proceeding near its end. DoJ contends that case law supports the actions, including notices referring readers to the Copyright Office website, which spelled out the proposed exemptions. DoJ says TracFone lacks standing to sue.