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