DMCA 101

This is my final paper for CS 4001, Computing and Society, taught by Michael McCracken. The prompt was to select a topic and write an 8-10 page paper on it; specifically, to form a cohesive argument, taking into account positions from all sides of an issue.

A surprisingly large number of people in my senior-level computer science class had never heard of the DMCA. If you are guilty of this crime of ignorance, it is imperative that you educate yourself on this topic one way or another. Disclaimers: I have given money to EFF, a party involved in this debate. I do not have a law degree. Nevertheless, I am confident in my analysis.

Problem

How have the United States’ Digital Millennium Copyright Act (DMCA) and related court cases affected intellectual property since that law was enacted in 1998? Has the act helped or hindered modern innovation and the internet?

Introduction

Long, long ago, the delegates to the Philadelphia Convention wrote in the constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus is the ultimate basis for the copyright law under question (Delegates to the Philadelphia Convention, 1787). Its writers had no idea of the technological changes yet to come, nor the direction that copyright law would eventually take.

The creation of the DMCA was initially inspired by copyright holders that felt that their works were not sufficiently protected from new, developing and future technologies by existing laws and court rulings. This initially took the form of a white paper published in September 1995, Intellectual Property and the National Information Infrastructure, by a group led by Bruce Lehman, who was the Commissioner of the United States Patent and Trademark Office (Robinson, 2008).

In particular, it was feared that content owners, creators, and distributors would “be willing to put their interests at risk” if systems were not available for them to enforce the conditions under which their content is available. To this end, he proposed that a section be added to the United States’ copyright law that prohibits the circumvention of access controls (Lehman, 2005). There was certainly some dissent from this view among the legal scholars of the time (Boyle, 1995), and some suggestion that Lehman was acting solely on the behalf of content providers such as Disney and CBS (Rothman, 1996).

In 1996, the Clinton administration (represented by Bruce Lehman) brought this white paper to the World Intellectual Property Organization (WIPO), a United Nations agency created in 1967 to protect intellectual property internationally. The white paper served as a central basis for the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both signed in 1996 (Robinson, 2008) and designed to standardize copyright protection internationally and protect copyright from technology.

These treaties were subsequently enacted by the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act,” also known as Title I of the DMCA. It expands copyright protection to any work created in a country that has signed a copyright treaty (of which there are several) which the United States has also signed (United States Copyright Office, 1998). It expands copyright protection to computer programs and databases. Most notably, it includes language (now §1201 through §1205 of US Copyright Law) known as the “anti-circumvention provisions” (United States Government Printing Office, 2008). This law prevents the creation or sale of programs or devices that circumvent technological restrictions that copyright holders include in their product (Chilling Effects Clearinghouse, Anticircumvention, n.d.). In particular, Section 103 (17 U.S.C. §1201(a)(1)) of the DMCA states:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title

17 U.S.C. §1201(a)(3) clarifies this (United States Government Printing Office, 2008):

(3) As used in this subsection—
(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

When consumers purchase a product, they have various rights, most of them established by the “First Sale Doctrine.” For example, a consumer has a presumed right in the United States to view, trade, rent and lend a product such as a DVD or CD. The issue is murkier with software as companies have tried to establish that consumers are sold a license to access the work instead of being sold an actual copy of the work, but courts have firmly disagreed with them on that issue, even when the EULA specifically prohibits resale (Timothy S. Vernor v. Autodesk, Inc. 2008).

The law is less clear as to creating a backup (or temporary copy) of intellectual property; the Copyright Act of 1976 allows a consumer to back up a copy of a computer program. At concern is when the anti-circumvention clause of the DMCA prevents consumers from expressing the rights enumerated in this section (Chilling Effects Clearinghouse, Anticircumvention, n.d.). There is some consideration of this issue in a report commissioned by DMCA Section 104 (United States Copyright Office, 2000). Note that the distribution of tools that circumvent copy protection is also prohibited (Electronic Frontier Foundation, 2008).

The DMCA is not limited to the anti-circumvention clause, however. Title II is the Online Copyright Infringement Liability Limitation Act, which seeks to limit liability by websites and internet providers when they are hosting content; it is most commonly known as the “Safe Harbor” provision of the bill, and implements the WIPO Copyright Treaty’s directive to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information” (World Intellectual Property Organization, 1996).

Under DMCA Title II, Section 512, an online service provider is not responsible for hosting copyrighted content so long as they 1) have no knowledge that content on their system is copyrighted; 2) have a clear policy for dealing with copyrighted content (such as removing repeat offenders); and 3) provide a way to submit copyright complaints. If a user of the website (perhaps the one that uploaded the content) believes that the content is either not owned by the complainant, or that the content is sufficiently covered by fair use, a counter-notice can be filed to the copyright owner (Chilling Effects Clearinghouse, DMCA Safe Harbor Provisions, n.d.).

There are three additional titles, none of which have come under much, if any, contention. Title III (the “Computer Maintenance Competition Assurance Act”) allows individuals repairing computers to make temporary copies of software; Title IV (“Miscellaneous Provisions”) added an assortment of minor provisions; and Title V (the “Vessel Hull Design Protection Act”) added copyright protection to boat hull designs, which were not previously covered as their form was clearly related to their function.

Thus the DMCA, unanimously passed by the United States Senate on October 12, 1998 and signed into law by President Clinton on October 28, 1998 (Public Knowledge 2008), is clearly far-reaching. It significantly changed not only United States law, but international intellectual property law via the World Intellectual Property Organization (Robinson, 2008).

It is the author’s opinion that this change has been detrimental to technology; that the anticircumvention clause has been unsuccessful in its stated purpose of preventing piracy, and that the safe harbor provisions would have evolved over time through the justice system.

Supporting Evidence

First, we shall consider the negative effect that the anti-circumvention clause has had on free expression, scientific research, fair use, competition, and innovation. An exhaustive list of relevant court cases has been compiled by the Electronic Frontier Foundation and is updated approximately every two years (Electronic Frontier Foundation, 2008). A few notable examples of such are presented here; but an exhaustive list is beyond the scope of this paper, as is a discussion of the relatively ineffectual anti-circumvention exemption process (Lohmann, 2005).

As mentioned in the introduction, a consumer has a right to view, loan, rent, or sell intellectual property as they please (especially if that property takes the form of a song, album, or movie; the law is less clear in certain cases). CDs and DVDs have attempted a wide variety of copy protection methods, sometimes rendering the media unplayable in some devices (for example, certain copy-protected CDs cannot play in car stereos that lack later hardware.

The best example of this limitation of use is the DVD, which uses a form of copy protection known as the Content Scramble System, or CSS. In CSS, a 40-bit stream cipher was used to obscure the content of the DVD; in order to build a DVD player that played these secure DVDs, one must license a key from the DVD Copy Control Association (and contractually, implement the entire copy control system). This was a hurdle that most likely discouraged independent device manufacturers; for example, Diamond created an mp3 (digital music) player without the restraint of a system such as CSS or the consent of the RIAA, and their device that was ruled legal in RIAA v. Diamond Multimedia (Dabeau 2000). Without the DMCA or CSS, many more manufacturers may have been tempted to support the format. Also consider the evolution of the digital music player; without this ruling, the iPod might never have been invented. Would a similarly ubiquitous DVD-playing device have been invented (other than the Video iPod) if the DMCA did not exist?

Introduced in 1996, CSS was broken by Jon Lech Johansen and two additional anonymous individuals in October 1999, and released as DeCSS (Warren, 2000). The source code was leaked soon thereafter, and quickly spread across the internet (Vogt, n.d.). The first legal test of the DMCA was based around this; in Universal v. Reimerdes, the DMCA was upheld as constitutional, and the distributors of this protection-circumventing application were prevented from continuing; in part, because they openly admitted to distributing the program to promote piracy rather than claiming to support fair use (Universal City Studios, Inc. v. Reimerdes).

For these reasons, DVD playback was initially difficult in the open-source operating system Linux; however, there is an “unofficial” library to add this functionality, libdvdcss, which has not been legally challenged. Note that the DMCA and this lawsuit did not actually remove the program or its source code from the internet; it is still widely available (Warren, 2000). (Vogt, n.d.).

If the law was not effective at protecting their system, as is stated above, what has it accomplished in this instance? It restricted the speech of the program’s creators, who did not directly engage in piracy. Jon Lech Johansen was tried after a complaint by the DVD Copy Control Association and the Motion Picture Association; he was ultimately acquitted, but lost approximately two years of his life to litigation. It was, however, made clear that using DeCSS (or similar programs) is a crime (Warren, 2000), even when it is used under one’s fair use rights.

In 2006, Vijay Raghavan’s company, Load ‘N Go, was sued in Paramount Pictures v. Load ‘N Go Video for violating the DMCA (Lewin, 2006). This company sold consumers a Video iPod and several DVDs, and performed the time-consuming process of loading the legally purchased movies onto the iPod for the consumer (Jayasuriya, 2008), a process that clearly falls under fair use (DeJean, 2006). Because the company technically violated the DMCA’s anti-circumvention clause in their primary service, what would otherwise be a legitimate, innovating company was driven out of business, contrary to the stated goals (piracy reduction) of DMCA anti-circumvention provisions (Jayasuriya, 2006).

It is also important to note that piracy has risen dramatically since the enactment of the DMCA, not decreased; in particular, “The Motion Picture Association (MPA), the international arm of the Motion Picture Association of America (MPAA), estimated worldwide losses because of piracy to be US $2.2 billion in 1997 and $3.5 billion annually in 2002, 2003, and 2004” (Lohmann, June 2006). Thus the DMCA anticircumvention measure is effective at criminalizing piracy (because theft was obviously not already a crime), many consumer technologies are missing from the marketplace (or available but technically illegal) as a result of the anti-circumvention provision.

While the DMCA’s safe harbor provisions do a reasonable job of protecting websites, little concern is given to whether a complainant is justified in their DMCA takedown notice. One particularly notable example of this was presidential candidate John McCain’s YouTube channel; various media organizations that the McCain campaign used clips from (under a legitimate claim of fair use) had McCain ads taken down by various media organizations (Stirland, 2008). The most famous recent example was a 30-second clip of a baby dancing with Prince’s “Let’s Go Crazy” playing in the background, almost certainly a fair use (Rasch, 2008). In a positive move, the judge ruled that content owners must consider fair use when sending takedown notices (McSherry, 2008).

Refuting Evidence

The DMCA is not without positive effects and supporters, however. The safe harbor clause does a sufficient job of keeping content-hosting websites out of much legal trouble (Kravets, 2008). It is again difficult to make a comparison, as most modern-day examples of these sites did not exist before the DMCA due primarily to bandwidth reasons. In 1998, the internet was almost entirely populated by Americans (GVU Center, 1998), AOL was still growing rapidly, spam wasn’t as much of a problem, and Facebook wouldn’t be a sparkle in David Zuckerburg’s eye for another six years. However, it is unclear if these companies would have existed in a world without the DMCA Title II to protect them in a clear manner.

Veoh, a video hosting website, has been involved in two recent examples of the protection afforded by DMCA Title II; in Io Group v. Veoh, the court ruled that even though Veoh performed additional processing on videos (such as converting them to flash, indexing them, and generating a representative thumbnail) all of these actions were performed at the bequest of the user, and therefore Veoh did not necessarily have knowledge of infringing content (Raysman, 2008). In UMG v. Veoh, UMG’s lawyers attempted a variety of “novel” arguments to convince the court that Veoh didn’t fit the definition of a safe harbor; so far, the courts have ruled along the same lines as the previously mentioned case (Goldman, 2009).

The other particularly notable safe harbor case is the ongoing lawsuit, Viacom International Inc. et al v. YouTube, Inc. et al, the largest test of the DMCA safe harbor provision (Bangeman 2007). Viacom sued YouTube and its owner Google for hosting around 150,000 videos to which Viacom claimed some sort of intellectual property ownership, asking for a billion dollars in punitive damages. During discovery, Viacom was granted access to an immense amount of data related to user activity on the site, which both parties agreed would remain anonymous (Opsahl 2008). In March 2008, the court denied the punitive damages, although statutory damages remain a possibility (OUT-LAW.COM, 2008). There have been some suggestions that Google bought YouTube anticipating such a lawsuit, given that a poorly defended YouTube might have established a poor legal precedent that would affected Google’s primary business (Kono 2007).

There is also an argument to be made that the anti-circumvention clause has encouraged speech (Nimmer, 2005); in particular, it has been suggested that the DMCA does not regulate substantially more speech than is necessary, and as such is constitutional; and without the DMCA, less “speech” would have been created due to reduced incentives and additional piracy (Nimmer, 2005).

Proposals

There have been a wide variety of proposals as to how the law should be changed given our retrospective on the DMCA’s effects, most of them concerning the anti-circumvention provisions. A popular suggestion is to simply repeal it and let courts judge based on the many existing laws (McCullagh, 2001), largely because of the effect that anti-circumvention has had on fair use (DeJean, 2006), and that the courts were producing reasonable rulings in this field before the passage of the DMCA (Lee, 2006).

One attempt to amend the DMCA to remedy the problems discussed here was the Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act, proposed by Zoe Lofgren in 2003 (Richmond, 2003). It would have allowed consumers to “make backup copies and display digital works on devices of their choice… prohibit non-negotiable, “shrink-wrap” licenses on digital content … [and] … allow consumers to bypass copy protection technologies if those technologies “impede” their fair-use rights” (Gross, 2003).

The most serious and well-enumerated proposal has been the Digital Media Consumers’ Rights Act, or the DMCRA, first introduced in 2003 and reintroduced in 2005. This act seeks to remedy most of the aforementioned problems with the DMCA while preserving some of the benefits; in particular, it would require clear labeling of copy-protected CDs, make circumvention of copy protection legal provided that it is fair use, and decriminalizes scientific research into copy protection (Boucher, n.d.).

Neither of these two laws made it out of committee, but the DMCRA may have a reasonable chance for success if it is introduced again, given the current political climate. It will doubtlessly be opposed by content providers, and how such a battle would play out is anyone’s guess.

The safe harbor provisions are not without their problems, however. Some recommendations to this end include increased transparency in the process; centralized reporting of DMCA takedown requests; stronger punishments for false notices; and an addition of a system to request attribution instead of entirely removing the work (Bailey, 2008).

Conclusion

Above all else, the establishment of the DMCA should serve as a cautionary tale. Taking potentially controversial legislation and turning it into an international multi-party treaty, signing it, and then presenting it to congress and the American public as fait accompli is extremely undemocratic. There is a significant danger this will happen again with the Anti-Counterfeiting Trade Agreement (ACTA) which, according to a leaked memo, has measures just as draconian as the DMCA’s anti-circumvention provisions (Robinson, 2008).

It is also clear via John McCain’s difficulties with DMCA takedown notices that John McCain (one of the senators that voted for the DMCA) had no idea of the real implications that the DMCA would have on John McCain (candidate for president) (Stirland, 2008). This shows the need for clearer and increased communication between policy-makers and technologists capable of understanding the various impacts of relevant legislation.

It would also be helpful if everyone, including the media conglomerates most responsible for much of the recent intellectual property legislation and DMCA abuses learned and respected the well-established concept of fair use. In one reasonably recent example, the Recording Industry Association of America attempted to claim that ripping CDs to an iPod was not fair use (Lohmann, February 2006). The willingness to criminalize an action that their entire consumer base undoubtedly engages in shows an almost willful ignorance that is not conducive to the creation of a body of law (be it the DMCRA or any other suitable remedy) that is truly fair to content creators, device manufacturers, and consumers.

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