The Digital Millennium Copyright Act or DMCA was signed into law by President Clinton on October 28, 1998. It was created in part to implement two WIPO (World Intellectual Property Organization) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. These treaties require member countries to provide copyright protection to works from other member countries. The DMCA also addresses other issues related to copyright law. The DMCA modifies Title 17 of the United States Code, and it contains five titles, of which arguably the first two are the most important. Title I of the DMCA is the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, and it also implements section 1201 which includes anti-circumvention provisions. Title II is the Online Copyright Infringement Liability Act which creates a safe harbor for online service providers under section 512.
As technology evolves, many new areas of copyright law must be created or clarified. Not that long ago, entertainment that required copyright mainly consisted of books and radio programs. Even when television and movies became common, copyright infringement mainly involved such things as protecting against copying a book or script without the author’s authorization. However there are now many types of media available that make it much easier to infringe – whether intentionally or not – on a copyright owner’s work. Movies or television shows can be copied on a tape or DVD, as can music CDs. Theatrical plays and concerts can be filmed on a cell phone camcorder. Some of these things are done by individuals wanting to keep a copy of the entertainment for their own use, but there are also individuals who make a career of piracy, or illegally copying movies, games and so on, in order to sell the copy for their own profit instead of the rightful copyright holder. In order to protect against this type of piracy, companies have come up with technological DRM (digital rights management) tools that are meant to prohibit items from being accessed or copied illegally.
Since it is recognized that sometimes there are times when there are legal reasons for individuals to circumvent access controls, the DMCA has 7 exemptions built into section 1201. These include the right of libraries, archives and educational institutes to circumvent the access controls to determine if they wish to obtain authorized access to the work for their institution. Law enforcement, intelligence and other governmental entities are allowed to circumvent for official purposes. If they have received authorization to do so, reverse engineering of software programs is allowed in order to create interoperable programs. Encryption research to find vulnerabilities and flaws is allowable, but again only if the person has received approval to do so. Circumventing access controls in order to use technology for the protection of minors is allowed, as is circumvention in order to disable a product that disseminates personally identifiable information about the user. A final exemption is for the purpose of security testing.
In addition to the exemptions built into DMCA, the Library of Congress has hearings once every 3 years to decide if any additional types of exemptions to the anti-circumvention rules are warranted. The most recent rulemaking on anti-circumvention was in 2009 when the Library approved 6 exemptions to the Act. These exemptions will be valid until the next review in 2012. One important exemption allows making copies of short portions of movies from a legally purchased DVD for fair use purposes such as educational purposes, documentary film making, or noncommercial videos. Other exemptions include allowing circumvention to the access control DRM in order to enable text-to-speech programs on e-books (but only if there is not an audible version of the book that can be purchased). Circumventing DRM in order to do security testing on video games is allowed in order to investigate security flaws or vulnerabilities (often found on the DRM itself). One of the most highly anticipated rulings is the exemption from prohibition of “jailbreaking” a smartphone. Often the owner of an iPhone would like to bypass the DRM from Apple in order to make the operating system of the phone interoperable with other applications that are not approved by Apple. It was decided that this is a fair use and not a copyright infringement.
While civil liberties organizations hail these updated exemptions to anti-circumvention rules, they feel that there are still drawbacks to the Act because it gives broad authority to the copyright holder to determine who can circumvent the DRM. For example, although an exemption is allowed for individuals wishing to research security vulnerabilities and flaws, the individual still must first request permission from the copyright holder to break the DRM in order to do the research. If the copyright holder declines to grant this approval, then if the researcher circumvented the DRM and found flaws, he could not publish those flaws in order for them to be fixed, without exposing himself to potential litigation.
Section 512 of the DMCA involves a concept of “safe harbor” which protects online service providers from being held liable for information posted or transmitted on their site by subscribers, but only if the service provider quickly removes access to any material that is identified in a copyright holder’s complaint. The service provider must also show that they have no knowledge of or benefit from the infringing activity; have a copyright policy for their site and provide notification of the policy to their subscribers; and list an agent that will deal with copyright complaints for their site. If the service provider meets the criteria for safe harbor, they will not be liable for any damages that the individual who posted the material would be liable for.
If a service provider is notified of a complaint about copyright infringing materials on their site, they are not required to notify the individual who posted the material prior to taking it down. The provider does need to notify the poster once the material is removed, and must include information in the notice such as the name and address of the complaining party, which material is being questioned, and what the copyrighted material is. If the individual does not agree that the material they posted was a copyright infringement they can file a counter claim with the service provider, who must forward the counter claim to the person who made the complaint.
In its white paper Unintended Consequences: Twelve Years Under the DMCA” the Electronic Frontier Foundation states that “Years of experience with the “anti-circumvention” provisions of the DMCA demonstrate that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend. As an increasing number of copyright works are wrapped in technological protection measures, it is likely that the DMCA’s anti-circumvention provisions will be applied in further unforeseen contexts, hindering the legitimate activities of innovators, researchers, the press, and the public at large.” Numerous examples can be found in this white paper as well as other sources such as J.D. Lasica’s book Darknet, illustrating uses made of DMCA provisions to harm competition and research that have little or nothing to do with stopping piracy. For example in 2003 some internal memos from Diebold Election Systems that discussed knowledge of software and security flaws in electronic voting machines were leaked. A number of students posted the information online, and were sent take down notices stating that if they did not remove the memos they would be sued under the DMCA. It was felt by many that this created censorship without due process. In other examples, printer companies used proprietary chips to indicate that an ink cartridge was empty, so that if a consumer had the cartridge refilled by an after-market ink company, the cartridge would not work in the printer because the chip would indicate that it was empty. When the after-market ink companies disabled the chips, the large printer companies sued under DMCA because their access control device was tampered with. The result of this would be stifling competition, not impeding piracy.
In the end the question becomes whether the DMCA rules are indeed protecting the concerns of the copyright holders and discouraging piracy, and if copyright law is the appropriate field for some of these statutes, as many of the rulings have strayed into licensing and how consumers may use products that they purchase, rather than simply preventing works from being copied for illegal distribution. Many fear that these rules and the uses large companies are trying to make of them foreshadow censorship and reduced creativity. Any way you look at it, this is a very sticky issue.
References
Anderson, Nate. “Apple loses big in DRM ruling: jailbreaks are “fair use”.” Law and Disorder. ars
technica. July 26, 2010. <http://arstechnica.com/tech-policy/news/2010/07/apple-loses-big-in-drm-ruling-jailbreaks-are-fair-use.ars>
Lasica, J.D. Darknet: Hollywood’s War Against the Digital Generation. Hoboken: John Wiley & Sons, 2005.
Print.
“Anticircumvention Rulemaking.” U.S. Copyright Office. Web. 26 Apr. 2011.
<http://www.copyright.gov/1201/>.http://www.copyright.gov/1201/
Chilling Effects Clearinghouse. Web. 26 April 2011.<http://www.chillingeffects.org>
“Unintended Consequences: Twelve Years Under the DMCA.” Electronic Frontier Foundation. March 2010.
Sojourn 