Abstract
The DVD case, as well as most peripheral debate, revolves around the extensions of copyright protection afforded by what is now known as the "Digital Millennium Copyright Act." The original title of the act was "To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty." Its original intention was establish the United Statesā membership in the World Intellectual Property Organization Copyright Treaty, membership that would grant its holders (or citizens) international legal protection in intellectual property disputes with other members (or citizens). As such it was an exercise of Congressā rights "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." During its congressional gestation, the act passed through several subcommittees, each of which contributed a small piece to the final form of the act.
The bill, which originated in the House Committee on the Judiciary as an addendum to Title 17, spent over a year in review and revision. Proposed on 7/29/1997 in the House Committee on the Judiciary, it was referred to the Subcommittee on Courts and Intellectual Property eight days later. It took six months for the act to reach the Commerce and Telecommunications, Trade, and Consumer Protection committees. The act then spent six more months under Full Committee consideration. Before it left the House, there were 7 sessions of amendment, 6 extensions for "further reconsiderations," and 454 days of lobbying, understanding, debating, comparing, reviewing and revising. The effort and time invested speak to the complexity of the act. Traditional conceptions of intellectual property have met unprecedented challenges in the digital age, where perfect reproduction of music, movies and other works, can occur at the click of mouse. Further, the tractability, the availability, and the seemingly benign nature of such reproduction - as it has no direct cost for the creator - complicate consideration.
The novelty of this particular legal challenge is only complicated by its technological, and, thus largely foreign, origin. The act was ambitious in its undertaking and its subject matter was complex, perhaps overly so. The following analysis will present some of the tensions and challenges faced by the Digital Millennium Copyright Act (DMCA)* and its defense. As the controversy has centered on 17 U.S.C. ¤ 1201(a)(2) and (b)(1), the dual provisions against circumvention of access to media, they are the main subject of further discussion in this document, and are provided below. However, a full copy of the act may be found at the following link:
http://www.loc.gov/copyright/legislation/hr2281.pdfExcerpt from the DMCA
¤ 1201. Circumvention of copyright protection systems(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
(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.
(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-
(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.
(2) As used in this subsection-
(A) to "circumvent protection afforded by a technological measure" means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
(B) a technological measure "effectively protects a right of a copyright owner under this title" if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.
The following is 1201( c ) which details the limitations of the act. This portion is also relevant, although it is not directly related to the essence of the act.
(c) Other Rights, Etc., Not Affected.-(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
(2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.
(3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
(4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.
Full Version of United States Code 17 may be found at:
http://www4.law.cornell.edu/uscode/17/
This document contains the following sections:
Arguments in Favor of the Digital Millennium Copyright Act
The Digital Millennium Copyright Act fulfills the congressional role and responsibility "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." In its prohibition of manufacture, importation, or "otherwise trafficking" in circumvention devices, the DMCA represents a competent and necessary solution to todayās problems of intellectual property piracy. The act is proper and does not violate first amendment protections of expression or "fair use" as defined by Title 17 and historic jurisprudence.
Content providers and distributors have suffered mounting losses to piracy. These losses endanger the content industry, which needs protection in the form of legislation to combat these threats. Movie piracy cost Hollywood 2.5 billion dollars in lost revenue last year, and there are fears of an exponential increase in this figure as digital media takes hold of the movie industry. Napsterās case remains a constant reminder of the potential loss to a content industry should we allow unabridged access to information. "Until fairly recently, artists and authors had only to contend with the bootleg distribution of their works in hard-copy form; they now face the reality of uncontrollable, online infringement." Such material-independent, purely-digital distribution is a radical change in scope of potential piracy and distribution. Movies, music and books can be copied and distributed with all the anonymity and efficiency of the Internet and the digital data standard. Once copied, the Internet allows for limitless and free distribution of data. To combat this we must prevent the copying itself. The content industries have implemented encryption and other measures in an attempt to restrict piracy by encoding information to be processed only in its original form. Methods to circumvent such measures promote, if not in themselves constitute, piracy. They tear down the link between form and function, divorcing information from its media, and allow for digital transcription of content.
Access control is nothing new. New mediums have consistently necessitated new intellectual property legislation: Sony Corp. of America v. Universal City Studios, Inc., A&M Records, Inc v. Abdallah, and dozens of other cases guarantee the right of a content manufacturer to restrict access to their work. Whatās new in the DMCA is not the ex ante prevention of copyright infringement, but its generalization to "technological measure" and its relevance to digital media in particular.
Limitations on access, do not challenge traditional conceptions of "fair use," the established doctrine of copyright holders limitations and the consumerās right to "use the copyrighted material in a reasonable manner without [the copy-right holderās] consent." Fair use, however, does not entitle the purchaser to unqualified and complete copies. Rather it is a guarantee of the first amendment right to expression. In particular the comment and review of a copyrighted work by itās purchaser:
"The fair use doctrine strikes a balance between the free speech rights of authors, artists, and content owners - by preserving their incentive to produce creative works - and the free speech rights of those who want to use copyrighted works, but in a manner that avoids harm to the economic value of those works."
Furthermore, fair use is only a system of precedents, and not itself a right, and, thus, cannot challenge explicit rights (i.e. challenge that the DMCA legislation limits freedom of expression).
The first amendment has never been an unqualified defense for expression. Conspiracy, coercion, threat, libel, and many other forms of "expression" are illegal but not conflicting with first amendment protections. Software viruses, political assassinations, and corporate anti-competitive agreements are all forms of expression, but they are illegal, just like the "manufacture and distribution of - devices - for the circumvention" of copyrighted materials. The opponents of the DMCA have always argued that code is just another form of expression; nobody disagrees - the point, however, is that not all expression is legal. Expression of the form leading to such piracy must be prevented and prosecuted: "dissemination [of a circumvention device] itself carries very substantial risk[s] of imminent harm because the . . . means of circumventing access controls to copyrighted works threatens to produce virtually unstoppable infringement of copyright." Insofar as the circumvention of access control results in piracy of catastrophic scales, such circumvention can not be allowed.
Arguments Against the Legality of the Digital Millennium Copyright Act
The DMCA, while well meant, excessively restricts consumersā rights in its extension of copyright protections. In limiting "circumvention devices" of any sort related to copyrighted works, the act sets unnecessary and improper limits on traditional consumer rights of "fair use." As Judge Kaplan of the Universal vs. Reimerdes case noted "- congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means to do so - with regard to the fair use doctrine, the DMCA fundamentally altered the landscape". It is true that the digital revolution has created new challenges to existing copyright practice. The DMCA, however, is not the legislation to promote and enable the new digital paradigm and traditional intellectual property rights to merge. Rather, it is a reactive measure; an attempt by the media industries to halt the wave of progress and effectively an attack on consumersā rights and interests.
The act has severely limited the traditions of fair use. No longer can back-up copies be made for use in case of damage or loss; no longer can samples be extracted for multi-media presentations; no longer can the interested user "reverse engineer"** the product to analyze its mechanisms. These are all serious limitations; limitations on teachers, scientists and engineers. The constitution states that Congress shall seek to "To promote the Progress of Science and useful Arts" - yet this is exactly what the act opposes. In limiting the consumerās access to content he or she has purchased legally, the act limits the consumerās freedom of content analysis. These limits go beyond traditional copyright protections. In limiting circumvention devices, the DMCA extends protection to the manufacturerās particular choice of production and delivery of the content, rather than only the copyrighted sections.
The act, however, goes beyond infringement on fair use. Through its ex ante prevention, it limits the expressive rights guaranteed under the first amendment. Because the act prevents the circumvention of access control almost regardless of intent, it is too broad and too limiting in denying analysis and review of both the workās content and access prevention measures. Although several allowances for investigative research are granted, such as studies in encryption and limited reverse engineering, the exceptions are too narrow and the future can only bring more instances of necessary and proper exemptions.
What the act, in effect, does, is continue the old informational paradigm started by books, a paradigm which needs to shift if not yield to contemporary technologies. A book presents information through the medium of writing, and before the advent of new technologies, the information was inseparable from the material media of pages and ink. Magnetic recording devices and readers brought a critical addition - access - to the previous issue of media and information. Now the information was recorded in a magnetic media and not immediately accessible to humans. Devices such as VCRās and tape decks were required to "read" the media and gather the information therein contained. The media and the access devices were material objects: cassettes, tapes, VCRās, players, eight-tracks, etc. A critical transformation occurred with the advent of digital technology - the dematerialization of media and the convergence of access. Computers can "read" a limitless variety of information, they can present web-pages, movies, music, games, and most other forms of audio-visual information. Their media is in 0ās and 1ās, electric pulses and charges. In addition, digital media is completely divorced from the sort of material manifestation present in tapes, cassettes and books.
Intellectual and corporate momentum, however, continues to focus on the old directions of access supervision, an idea invented in response to a previous technology revolution. If anything, the precedent of access supervision should serve as a reminder that old legal paradigms cannot apply to radically different technologies. Access supervision is obsolete: VCRās, cassette players, eight-tracks, record-players, DVD players, etc., attempt to perpetuate an antiquated distinction between separate types of media and, thus, their differing forms of access. Attempts at encryption and other digital access control are in effect attempts at perpetuating the old standards into the new system in which all media has converged to a single uniform representation.
Encryption does indeed force a special type of access - decryption - and it attempts to maintain the old division of media. This block to access, however, is not a structural product of the media itself, as was the case for VCRs and videocassettes. Rather, it is applied solely for purposes of restriction. Copyright jurisprudence is not a history of access regulation, itās a history of legislative adaptations to technological innovation, a history of review and revision. In condemning circumvention of access, the DMCA opposes the overarching movement from access licenses to free standards, from fragmented to ubiquitously digital media and access, from the past to the future. The challenges of the digital age reach further than Sony Corp. of America v. Universal City Studios, Inc, they get at the very core of the legal conception of intellectual property and copyright, and as such they deserve a deeper, perhaps more radical, reevaluation.
*As noted previously, the full name is "To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty," the Digital Millennium Copyright Act is another (shortened) name for the act.
**Reverse engineering is still allowed but is severely limited in that its intention must be the achievement of interoperability of the reverse engineered program with some other, a number of other qualifications are provided 17 U.S.C. 1201 (g)