DMCA and First Amendment: When can a commentator be compelled to reveal their method of content acquisition?

Question

Scope

This topic is cousin to the latitude afforded journalists to protect their sources. However, this question primarily pertains to enforcement of the DMCA.

Definitions

• “User”: the entity that makes final use of copyrighted content, who may or may not have a “Source” for the content.
• “Source”: the entity that acquires a copy of copyrighted content, through whatever legal or illegal means.
• “Owner”: the entity that owns the copyright to the content in question.

Exposition

The Digital Millennium Copyright Act (DMCA), its exemptions, and the fair-use clause of Title 17 Chapter 1 Section 107 of the US Code clearly provide methods by which an individual may use copyrighted material, even if that material is protected by Digital Rights Management (DRM). It also appears that acquisition would be treated separately from fair-use considerations in a court of law, due to the separation of civil and criminal cases in the united states.

However, it is unclear under what circumstances an owner or government entity can question the origin of the content used, and further to compel the user of said copyrighted content to disclose or prove the means of acquisition of the content, or their source. If owners and government entities were unable to do so, this would imply that fair-use and protected activities provide immunity for DMCA violations in the absence of evidence of such a violation committed by the user. However, this would also be consistent with the presumption of innocence afforded by Coffin v. United States, 156 U.S. 432 (1895).

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Some hypothetical examples

Segments of a film are used for commentary or criticism, but:

• The movie is still in theaters. This can still be fair use, but would clearly necessitate some form of illegal method of acquisition (filming in a theater, journalist’s source obtained digital copies from a premiere or festival), provided that the individual has not received permission to use the content. This might be a situation where probable cause is warranted.
• The scenes used appear to be illegally obtained, despite legal means existing. The footage may appear to be filmed in a movie theater, though a DVD is available, and dvdripping might actually be a legally exempt means of acquiring the content.
• The copyright owner merely suspects, on a hunch, that the user did not extract or obtain the content legally (e.g. they didn’t dvdrip the content).

Answer 1

A copyright or DMCA violation could be civil or criminal, and each has different rules.

In a criminal case, the 5th Amendment applies. A person cannot be compelled to incriminate himself. The government could get warrants to search whatever they needed to search, but they'd first need probable cause.

In a civil case, the plaintiff cannot get search warrants, but they may serve subpoenas to get additional information, and can get discovery from the defendant.

And even before discovery, the defendant must respond to the complaint. According to the Federal Rules of Civil Procedure, Rule 8(b),

In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

It's worth noting that a defendant could invoke the 5th Amendment if he feared self-incrimination, but the jury would be allowed to draw a negative inference from that.

If you tried to file a lawsuit with the allegation that "I have a hunch that this was somehow illegally obtained", that's probably not going to work, however. According to FRCP Rule 12(e):

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

Also, if it is completely unknown how the content was obtained, then it might be hard to show that you're even in the correct court - should you be in state court on a claim that a copy was physically stolen or a contract was violated, or federal court on a claim of a violation of 18 U.S. Code § 2319B - Unauthorized recording of Motion pictures in a Motion picture exhibition facility? FRCP Rule 8(a)(1) requires "a short and plain statement of the grounds for the court's jurisdiction", and FRCP Rule 12(h)(3) says: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."