Friday, March 10, 2006

John's Presentation: The Chilling Effect of the DMCA

As members of the largest demographic group of consumers of entertainment products, we’ve all probably run into copyright mechanisms of one type or another. When we purchase CDs, DVDs, software, hardware, toys, e-books, etc., there is a good chance that the object has a built-in device to control access to or usage of the product. Did you ever pop in a DVD and find yourself sitting through ten minutes of commercials that you can’t skip? Do you own an iPod, or have you downloaded music for your iTunes? Have you bought any video games or any software for your computer in the last seven years? If you answered “yes” to any of these questions, then you’ve experienced copyright mechanisms in some way, whether you knew it or not.

Congress enacted the Digital Millennium Copyright Act (“DMCA”) in 1998 protecting the use of these access-control or copy-control devices. Specifically, section 1201 of the Copyright Act prohibits the circumvention of technological protection measures used by copyright owners to control access to their works. It also bans devices whose primary purpose is to enable circumvention of technical protection systems. Although the Clinton administration originally proposed these anti-circumvention rules as implementations of U.S. obligations under the World Intellectual Property Organization Copyright Treaty, the resulting provisions are far broader than the treaty required.

In response to pressure from the tech sector, Congress crafted certain exceptions to authorize legitimate circumvention. However, the exceptions are so narrow and shortsighted that they fail to protect legitimate, previously-protected uses of copyrighted technology. As a result, for the last several years since the enactment of the DMCA, various parties have used the act as a tool with which to threaten consumers and legitimate researchers, as well as other companies, with impending lawsuits. Interestingly, although section 1201(C)(1) specifically provides that nothing in section 1201 would “affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title,” the anti-device provision effectively makes this an empty promise. Unless modified, the anti-device provision has a harmful impact on competition and innovation.

My proposal is to broaden the exceptions provided by the DMCA to protect fair use, as Congress intended, to include other legitimate reasons for circumvention, as well as to clarify or narrow the anti-device provision of the DMCA. For example, under the current DMCA exceptions, a copyright owner who believes that an encrypted work contains an infringing version of one of his works can confirm his suspicions only by asking the potential infringer whether it is true; circumventing the technical protection system to access the encrypted material for this purpose is illegal.

Because the act is so broad and the exceptions so narrow, the DMCA creates a chilling effect on both scientific research and the freedom of speech. Currently, the website www.chillingeffects.org is attempting to track Cease and Desist Notices based on the DMCA, with 1631 listed thus far. I will provide examples of cases in class.

2 Comments:

Blogger Scott Walker said...

John:
Can you expand more on how the DMCA punishes the thought of infringing conduct even when under the traditional notion of "Fair use?"

2:53 PM  
Blogger duffee said...

The court in the Universal City Studios case noted that the concept of fair use is not mandated by the Constitution, despite some indications from the Supreme Court that it may be. Do you think that fair use is constitutionally required?

5:43 PM  

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