Page 112 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 4 Formulating a Non-commercial UGC Access Levy Scheme
An Intermediary-oriented Approach

the first sale doctrine only allows the UGC creator to distribute, not to access, the work
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without the copyright owner’s permission. Extensive scholarly debate has followed over
whether the first sale doctrine allows a user to access an access-controlled work after gaining
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a lawful copy of it. Testing this, a proposal was made concerning access under the digital
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first sale doctrine. However, it was rejected by the Copyright Office. Thus, the first sale
doctrine is still limited to restricting copyright owners’ distribution rights, not their access
control rights. As the first sale doctrine normally does not apply to users who access an
access-controlled work to create UGCs, there is no conflict between the access control right
and the first sale doctrine.
2) Freedom of speech
Another complaint about the access control right has been its potential intervention
in freedom of speech. Circumvention software exists in the form of computer code that is
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recognised as ‘speech’, and is therefore entitled to First Amendment protection.
This is not the first time a law has been challenged on the grounds that it violates the
First Amendment. For example, the landmark case of States v. O’Brien concerned a dispute
over whether a law (50 U.S.C. § 462(b)(3)) stifling the speech of anti-war protesters violated
the First Amendment. The Supreme Court distinguished the nonspeech element from
the speech element of an expression, and proposed widely cited criteria under which the
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regulation of speech could be justified. It stated as follows: ‘First, the regulation is within
the constitutional power of the government. Second, the regulation furthers an important
or substantial governmental interest. Third, the governmental interest is unrelated to the
suppression of free expression (content neutral). Fourth, the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest’. 51
Following closely on the heels of O’Brien, in subsequent cases determining the
constitutionality of the anti-circumvention clause, the courts distinguished the restriction
on the functional elements of speech from the restriction on its expressive features. The
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46 Victor F. Calaba, ‘Quibbles'n Bits: Making a Digital First Sale Doctrine Feasible’ (2002) 9 Michigan Telecommunications
and Technology Law Review 1, 2.
47 Ibid 2 (held that the first sale doctrine inherently allows users to access the work upon obtaining a lawful copy); Ginsburg,
‘From Having Copies to Experiencing Works’ (n 22) 130 (suggests that the initial access is still under copyright owners’
control).
48 Though some scholars appeal for a digital first sale doctrine to address works that are tethered to a particular device and
cannot be accessed in other devices, the DMCA Section 104 Report rejected, claiming that “the practice of tethering a
copy of a work to a particular hardware device does not appear to be widespread at this time, at least outside the context of
electronic books. Given the relative infancy of digital rights management, it is premature to consider any legislative change
at this time.” US Copyright Office, DMCA Section 104 Report (n 40).
49 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d. Cir. 2001); Universal City Studios, Inc. v. Reimerdes, 111
F.Supp.2d 294, 327 (S.D.N.Y. 2000); States v. Elcom, Ltd., 203 F. Supp.2d 1111, 1131 (N.D. Cal.2002).
50 United States v. O'Brien, 391 U.S. 367, 377 (1968).
51 Ibid.
52 Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d 294, 326 (S.D.N.Y. 2000); Universal City Studios, Inc. v. Corley,
273 F.3d 429, 442 (2d Cir. 2001); Bernstein v. United States Dep't of State, 922 F. Supp. 1426, 1434-36 (N.D. Cal, 1996);
United States v. Elcom Ltd., 203 F. Supp.2d 1111, 1128 62 U.S.P.Q.2d (BNA) 1736 (N.D. Cal.2002).

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