Randall Twede
11:30
Article Presentation
Due 04-15-02

The Digital Millenium Copyright Act

The Digital Millenium Copyright Act (DMCA) was passed by Congress and became a law in 1998. However the enforcement of the law was delayed for two years so the ramifications are just beginning to come to light. While the intent of the law is to extend the protection of intellectual property rights to include digital content, many people believe that it wrongly inhibits the "fair use" that we have traditionally enjoyed in exchange for granting this protection. The DMCA, as the author of one of the articles I read while researching this subject mentioned, is a multi-part law and it is only one section in particular (section 1201) that appears to be faulty. I disagree with his conclusion that since the rest of it is ok it is good. Instead I agree with the authors of the other eight articles I read. If one part of the law is bad, the entire law is bad.

Section 1201 prohibits unauthorized access to a work by circumventing an effective technological protection measure used by a copyright owner to control access to a copyrighted work. It also prohibits distributing tools that circumvent access control or copy protection. What's wrong with that you ask. What's wrong is that it doesn't have to be for the purpose of infringement. The best way I can think of to demonstrate the problems this creates for society is by giving some examples.

"Until recently, DVD movies could only be viewed on Microsoft Windows and Apple Macintosh systems. The growing number of people using systems based on Linux, were not able to fully utilize the technology, despite having purchased DVD drives."¹ A program called deCSS and other similar programs now allows Linux users the same ability to watch DVD movies on their computers. This has resulted in several lawsuits. In one case, "United States District Judge Lewis A. Kaplan of the Southern District of New York issued a preliminary injunction in Universal City Studios et al. v. Reimerdes et al., prohibiting the defendants from distributing computer code for reading encrypted DVDs. Judge Kaplan subsequently issued a memorandum order in which he indicated that executable source code was not subject to First Amendment protection against prior restraint of speech. This finding is contrary to that of the 9th Circuit US Court of Appeals, who ruled in the Bernstein cryptography case that source code is indeed protected speech."²

"Under the DMCA's 'Online Copyright Infringement Liability Limitation Act,' service providers are not liable for copyright infringement committed by others if they 'expeditiously' remove the infringing material after receiving notification from the copyright owner."³ However, so far the courts have ruled that linking to a site can make you liable. "The publisher of 2600 magazine was sued by motion picture studios for providing a link to a Web site that contained the DeCSS code, which can be used to defeat the industry-standard DVD copy protection system enabling movies to be played on a Linux-based operating system. After losing at the trial level, the magazine publisher appealed, trying to preserve his right to link to sites without being held responsible for everything on those sites.Unfortunately, the federal courts in these cases did not uphold the First Amendment rights of these publishers. In the 2600 case, the appellate court circumscribed traditionally accepted fair-use rights by declaring that these rights did not apply to the most convenient, highest-quality formats available to consumers."⁴

"The DVD CCA (DVD Copy Control Association) and the MPAA (Motion Picture Association of America) claim that the intention of the software being developed was for illegally copying DVD movies. It is possible to (illegally) copy a DVD disk without decrypting anything! You can do this because the decryption is done at play time and is unrelated to copying. It is not possible to view a DVD movie without decrypting it. Furthermore, the cost of a video-size DVD writer (the PC DVD writers have less capacity) is extremely high and empty DVD media cost about $50 a pop ... which is much more than any movie currently on the market! That means that currently, it is much cheaper to just buy a movie than to pirate it. It also means that the only economically viable use of the allegedly 'pirate' DVD decryption software is watching DVD movies. Movies which have been bought in the shops like any other!".⁵ If I was a conspiracy nut I would say it is a plot led by Microsoft to destroy the "Open Source" movement.

Another example is the Felton case. "In response to an open challenge by the Secure Digital Music Initiative (SDMI), which invited the world to seek to defeat the watermarking technologies it had proposed for protecting digital audio content, Princeton University Professor Edward Felten and his colleagues defeated all of the proposed watermarks. The Felten team then sought to exercise their First Amendment rights by publishing the results of their scientific research and presenting the paper at a security conference. Before he presented the paper, however, Felten received a threatening letter from the SDMI warning that doing so would subject him to liability under the DMCA. Felten then filed a lawsuit to uphold his First Amendment right to publish his research findings. The case has been dismissed, but the issue has not gone away, because the judge did not rule on the actual merits of his complaint."⁶

The most well known case is that of Dmitry Sklyarov. "Dmitry Sklyarov, a Russian academic, has been imprisoned after presenting a scientific paper at the DEF CON computer security conference. His talk covered the restriction mechanisms used to prevent people from reading electronic books. He was formally charged with distributing software that could be used to circumvent copy protection."⁷ For violating the DMCA's anti-circumvention provisions, Sklyarov, A Russian nationalist, faces a maximum criminal penalty of up to $500,000 and five years in prison. There is a good chance he didn’t even know about the new American law.

Finally, a hypothetical example. "In 2000, King conducted a couple of experiments in online fiction publishing. The first one was a novella, called 'Riding the Bullet', which was issued in Windows-based copy-protected formats. That event started my legal mind working: I imagined that Stephen King, who has expressed some contempt for Windows machines in the past, couldn't actually read his own story on his Macintosh laptop. Now, of course, he probably knows what he wrote. Still, he might want to check the formatting or check the copy editing or something. But it occurred to me that if I showed up at Stephen King's house in Maine, and got past the guard dogs, and knocked on his door and offered him a tool that allowed him to strip the protection away from this Windows proprietary format and get the text out and read it directly on his Mac laptop, I would have committed an offense under the Digital Millennium Copyright Act. Because you are prohibited from distributing tools that circumvent access control or copy protection. Now, you might think, well, isn't there a defense under the Act if there is no underlying copyright infringement? Well, as has been explained in other panelists' remarks, no, that is not a defense. In other words, even though I could reasonably argue that, if anyone has the right to circumvent copy protection and look at Stephen King's copyrighted work, Stephen King does -- it doesn't matter. It is not a defense."⁸

There are some common misconceptions about the DMCA. The main one is that it prohibits copying for fair use purposes. Actually the law is about circumventing copy protection schemes, so if the material is not protected by any copy protection, fair use is still legal. However, the fact that the DMCA makes no distinction between circumventing for fair use purposes and circumventing for the purpose of infringing, is, in my opinion, a serious flaw that threatens our rights as Americans. As you can see from the DVD example, the DMCA is being used to deprive Linux users of their right to fair use. In fact the law, in effect, says if they want to watch DVD's on their computers, they will have to buy Windows. What is even more chilling is that the DMCA has limited our right to free speech. As the Felton and Sklyarov cases demonstrate, it is now illegal to share scientific information on the subject of copy protection schemes. Want to major in computer security? Sorry we have dropped it from the curriculum.

The intended audience of most of the articles I read was the general public. Each tried to translate the law from legalese to English. The reason I feel this story is related to what we are learning in this class is that it is an example of government involvement in the distribution of resources, in this case information. Congress has proposed, in a new bill, going even further, but I will save that for another article presentation.

¹ http://www.opendvd.org/journalists.php3
² http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/
³ http://news.com.com/2010-1078-281575.html?legacy=cnet
⁴ http://news.com.com/2010-1078-825335.html
⁵ http://www.opendvd.org/journalists.php3
⁶ http://news.com.com/2010-1078-825335.html
⁷ http://www.dibona.com/dmca/
⁸ http://cryptome.org/dmca-n-worse-mg.htm