DMCA: Do legitimate uses survive enactment?

1.       Introduction to the Digital Millennium Copyright Act

In 1998 the DMCA (17 U.S.C. § 1201, 1202) was inserted into the copyright act, criminalizing the creation of and trafficking in methods of circumventing access and copy controls used by right holders and allowing a copyright holder to force internet service providers (ISPs) and other content providers to take down infringing material from the internet and other mediums.  The DMCA is both a response to international obligations created by WIPO and copyright holders’ concerns about digital piracy. The DMCA is not supposed to create additional rights for right holders, but rather, to protect the rights they already have.  This does not seem to hold true in its application since enactment.  As control technologies become a more prevalent and invasive means for right holders to monitor and control the use of works by end users, the DMCA protects right holder control through actions against end users, researchers in security control measures, and even critics of control measures.

There are high costs associated with protecting digital technology (control measures are only as effective as the most capable hacker). The DMCA is designed to prevent right holders from passing on this cost to consumers by giving the right holder an action against anyone who would circumvent, or supply the public with a means of circumventing, an access or copy control measure.

§ 1201 prohibits:

i.      (a)(1)(A) Circumventing an access control measure

Access control measures are any means by which the right holder prevents access to their work.  This is why you cannot rip a copy of a legitimately purchased DVD to your computer.

ii.      (a)(2)Trafficking in a device that circumvents an access control measure

iii.      (b)(1)Trafficking in a device that circumvents a copy control measure

Copy control measures are means by which the right holder prevents the copying of their work without permission.

*Notice that there is no prohibition on circumventing a copy control measure because banning use of a copy control measure is too much like banning fair use (even for the drafters of the DMCA).

2.       Effects of the DMCA in Practice

While the DMCA may protect right holders from circumvention of their hard earned control measures, however, as the EFF notes in Unintended Consequences: Twelve Years under the DMCA (http://www.eff.org/wp/unintended-consequences-under-dmca), the DMCA also discourages legitimate research into security measures.  This is actually counter-intuitive for right holders who rely on this technology to protect their rights, and prevents the legitimate vetting of security measures employed by right holders that pose risks to the consumers that use them.

The DMCA is not limited to US researchers.  German programmer, Dmitry Sklyarov, was arrested and detained for violating the DMCA while on a trip to the US attending the DEFCON conference.  Sklyarov, working for Elcomsoft, developed a program that would remove the copy controls on Adobe’s ebooks and allow purchasers to transfer the books to other devices, print the books out, use the book on a Linux operating system, among other things typically associated with fair use.  Since his arrest,  researchers abroad have both limited publication of research because they travel to the US and have avoided the US as a result of fear of DMCA liability.  Russia has even issued a travel advisory to Russian programmers travelling to the US, and many researchers and foreign participants in tech conferences have pressured groups to hold conferences outside the US.

Many companies, including Apple, have protected tethers between their products and services with the DMCA.  For example, you can only use the iPod and iPhone with iTunes.  The DMCA gives companies a cause of action against jail breaking these tethered devices, and thereby almost exclusive control over how (and for what) end users use their products.  This encourages anticompetitive behavior on the part of right holders and gives them a means of preventing access to their works by all but a very limited class of users.

Trafficking in circumvention methods includes publications about circumvention methods.  On more than one occasion, publishers have refused to publish or have taken down material relating to circumvention methods, including criticisms of control methods, in fear of DMCA retaliation by right holders.  The issue becomes, does this limit the free press in a manner that does not comport with the First Amendment?  Copyrights are property rights that are guaranteed by the Constitution.  The DMCA only empowers private right holders to pursue claims against would be infringers.  In In re Verizon Internet Services Inc., the court said that “the First Amendment does not protect copyright infringement.” But, as the EFF notes, there is a disconnect between the guarantees of the First Amendment and copyright when authors of legitimate criticisms of control methods cannot get them published because of the threat of a DMCA action.

3.       §107 Fair Use and the DMCA

Fair use allows for the use of copyrighted works for personal and non commercial uses, typically for criticism, comment, news reporting, teaching, scholarship or research.  There are four fair use factors:

a.       Factor 1: purpose/character of the use

b.      Factor 2: nature of the © work

c.       Factor 3: amount/substantiality of portion used

d.      Factor 4: effect of use on market

DMCA  §17 USC 1201(c)(1) says that “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”  However, courts have ruled that fair use is a defense to an infringement claim, not to a DMCA claim. (Universal Studios v. Reimerdes, 111 F. Supp. 2d 294, [S.D.N.Y. 2000]).  This means that even though the end use may meet the four factor fair use exception, if access was obtained in violation of the DMCA (ie. there was a control provision in place that had to be circumvented) the right holder has an action against the user.  Right holders can effectively prevent even fair use in most cases by simply having a control measure in place.  I would argue that, contrary to the congressional assertion that the DMCA does not create additional rights for right holders, that the DMCA enlarges the scope of copyright by allowing right holders to circumvent the fair use exception.

Fair use is also not a constitutionally guaranteed right. (321 Studios v. MGM Studios, 307 F. Supp. 2d 1085 (N.D.Cal. 2004).  This creates a problem, as the EFF notes, insofar as the development of the right is concerned.  If otherwise fair uses are not protected from erosion by the DMCA, the doctrine may stagnate and whither into disuse as new technologies for encryption and control measures develop.

While fair use may be applied to protect legitimate copying outside the DMCA, fair use is an uncertain defense at best for most users of new digital technology, and a ruling that a use is fair use only comes as a result of litigation, which can be a long and expensive process for most right holders and users alike.  As the Executive Summary, Digital Millennium Copyright Act, Section 104, explains, fair use protection is not always a satisfactory solution to the developing uses of material on the internet.  For this reason, the Executive Summary recommends that Congress enact a specific exception for copies of works made in RAM to facilitate licensed performances (in cases involving streaming audio).  Does this recommendation imply that the fair use doctrine needs explicit protection from being overridden by right holders in the post-DMCA world?

Under the DMCA, Congress can enact specific exemptions.  However, these exemptions are usually provided for a limited time and have to be individually considered and applied for which can be a lengthy process.  Exemptions are not a perfect fit for addressing fair use concerns.  The purpose of fair use is to protect a class of legitimate uses and these uses are significantly impaired by the process of congressional approval.

4.       § 109: First Sale Doctrine

The doctrine of first sale (or exhaustion) is applied to prevent right holders from controlling secondary markets in legitimately sold works and to preserve the free alienability of works once sold.  Once a user has purchased the right to use the work, the user can then transfer that right to someone else, as long as they do not retain it in themselves (ie. selling a CD to someone requires that you give them the physical copy of the disk, this is ok under exhaustion as long as you do not retain a copy of that disk).  The DMCA allows right holders to employ techniques like regional encoding to limit the access of users to their works.  This impedes application of exhaustion because regional encoding limits the market for works to a specific region.  This reduces the free alienability of works, and, arguably, their market value as a whole.

Traditionally first sale has only limited the distribution right.  In digital transmission/sale of a work, the reproduction right is also implicated because transmission requires that a copy be made on the receiver’s computer.  In order to protect right holders in this context, there would have to be a means of enforcing the requirement that users delete their copy of the work after transmission.  Because there is no effective means of doing this now, is it really feasible to extend the first sale doctrine to limit the reproduction right? Or is this really only an excuse to protect the unlicensed copying and transferring of works online, as opponents of the first sale doctrine suggest?

5.       § 117: Archival Copies of Software

§117(a)(2) limits the exception for archival copying to computer software, and allows archival copying only so long as “all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.”  Archival copying is necessary to ensure the longevity of a licensed user’s content.  Computers can very easily become damaged, and electronically stored data lost.  Most people keep a backup of all essential files and data to protect against loss or corruption, but, as the Executive Summary notes, the exceptions created by §117 do not cover the customary backup practices of most individuals and businesses; “[t]here is a fundamental mismatch between accepted, prudent practices among most system administrators and other users, on the one hand, and § 117 on the other.  As a consequence, few adhere to the law.”  However, the Executive Summary also notes that no lawsuits have resulted from this hole in Congressional protection of archival rights.

My concern is that rights not explicitly protected and fenced off from the rights of copyright holders may be eroded over time and potentially subsumed by new technology that allows right holders access and control over archival control measures.  Particularly with legislation like the DMCA which prevents the legitimate copying for archival purposes as long as the right holder has a protection measure in place.  Though much can be recovered from physical copies of data, many right holders no longer make those physical copies available without additional costs to the user.

In the end, I think it’s important to consider the following questions:  Can a balance be struck between legitimate uses, such as those protected by fair use, first sale, and archival rights, and the interests of copyright holders in protecting their works from unlicensed exploitation on the internet?  Is the DMCA a good solution to this problem? After the DMCA, is there any protection for legitimate uses, or have they really been subsumed by the right holders’ ability to implement a control measure and then claim violation of the DMCA in the face of any legitimate use?

I’m really sorry this was so long, so just for fun, here’s a Lawl: http://cheezburger.com/View/3960146944

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~ by shwankish on September 13, 2010.

11 Responses to “DMCA: Do legitimate uses survive enactment?”

  1. Very interesting. When I was reading about the first sale doctrine, I couldn’t help but think about how the concept has not been applied at all to the current fad: e-book readers. One major drawback for the consumer of a Kindle is that the book cannot been sold after it has been read. Additionally, one cannot yet take his or her kindle to the library to make fair uses of e-books. I assume similar copyright issues apply to e-book readers as apply to MP3s and movies. I know Apple and Amazon both make you buy books from those companies alone (i.e., iTunes/Apple book store for Ipad and Amazon bookstore for the Kindle). If find the future of the first sale doctrine and fair uses interesting as applied to e-book readers.

    I also thought the article regarding researching control measures interesting. It seems to me that a modification to the legislation is necessary to allow legitimate researchers to research and critically analyze the control measures. Failure to do so could actually lead to more hacking control measures since they likely will not improve without the sharing of ideas. If there is no improvement, people overseas will break through and disseminate knowledge allowing people to get past the control measures. I understand why the Congress does not want people attempting to get past control measures and discussing how to do so, but an exchange of ideas will probably be good for the industry.

    As I stated in the other post, I also think it will be interesting to see how the older generation shapes the law of copyright related to new technologies. I am not sure how one can make sound determinations regarding something he or she is not necessarily familiar with.

  2. I think with Skylarov it was more than just his own personal use. He took himself out of Fair Use when his company started trafficking in a product that allowed Adobe users the extra benefits. I think his situation would be analogous to someone taking the Harry Potter series and writing another book that people would want to read. It capitalizes off the ideas and publicity of the initial product/s but gives no benefits to the original creator.

    The best of both worlds would be for these developers to work hand in hand with the original creators to provide the public with the best version possible. Hopefully the Skylarov prosecution will facilitate this scenario and we will all benefit.

  3. Nice concise summary of a lot of information.

    What interests me in particular is the infringement of First Amendment rights. Although almost nobody would seriously attack the importance of copyrights in general, I think it’s pretty well-settled that First Amendment concerns should (in all but exceptional circumstances) trump copyrights. You mentioned that copyright infringement is not protected speech, but I think it’s a pretty sure sign of a problem when people are persecuted for writing about any topic. The chilling effect you mentioned alone is damaging in that people are refraining from meaningful discourse on the topic, ironically impeding the very things copyrights were designed to protect: science and the useful arts.

  4. I have absolutely no background in any of this, however after reading the current situation and what the DMCA does, I completely agree with frankieghoststar in that the developers should work hand in hand with the original creators to provide the public with the best version possible. While with Sklyarov, it does capitalize off the ideas and publicity of the initial product without giving benefits to the original creator, it also helps by making the product more useful to those who purchase it. Once someone purchases a program such as an ebook, I don’t see why the users should be prevented from doing things that typically are associated with fair use.

  5. I really like this topic. I have a few followup thoughts, though:

    You make a reference certain Apple products like the iPhone, iPod, and iPad being usable only with iTunes, rather than some other software for management through a computer. You also make a reference to jailbreaking in the same paragraph. “Jailbreaking” (at least as is used in the Apple communities, for lack of a better term) is modifying iOS to allow the device to run unsigned (i.e. by Apple) applications. In a more technical sense, it is breaking out of the chroot jail that restricts the user’s experience with the device to only part of its storage, thus restricting its use. “Unlocking” is an additional subsequent modification for carrier locked iPhones that allows such a phone to be used on other carrier’s networks. In the US, this means removing the carrier lock to AT&T so that the phone can be used on T-Mobile’s network, for example.

    Each of these procedures were recently declared not violative of DMCA by the US Copyright Office. See http://www.wired.com/threatlevel/2010/07/feds-ok-iphone-jailbreaking/

    Second, I follow these copyright issues fairly closely and am somewhat pleased at how the market has rejected and successfully pushed back on many digital rights management (DRM) measures. iTunes has moved from all-DRM to DRM-free. Amazon sells DRM free music in MP3 format. Some persist, however, and I think they ultimately only inconvenience legitimate users, while those who genuinely want to circumvent them do so after suffering the inconvenience of doing so. DRM is not in the consumer’s interest whatsoever. Don’t forget about the Sony DRM rootkit fiasco: http://www.cnet.com/4520-6033_1-6376177-1.html

    • Very good points! I think there is a lot of credence to the idea that the free market will control anti-competitive behavior and data locking by right holders. Apple and Amazon giving up the DRM ghost, as well as the Spore fiasco are very good examples of right holders acquiescing to strong public criticism of DRM (and the devaluation of works that contain it). This only goes so far, however. What I find most troublesome about the DMCA is the potential to sway the balance of rights (and the benefit to society that copyright law is supposed to encourage) to the discretion of right holders.

  6. It is interesting that the DMCA and other similar initiatives are limiting access to electronic materials in such a way that physical versions of the same materials do not prevent. The example from a previous comment regarding the Kindle brings up a good point, in the past if I purchased a physical copy of a book, I could pass it along to a friend to read and they could continue to pass it along and so on, but with the Kindle I couldn’t just pass my copy of an e-book to a friend. There are however other e-book readers on the market that do include functions which allow users to share e-books with friends, but I wonder how this all factors together with the DMCA. Would the electronic sharing of documents still fall under the first sale doctrine when that electronic copy is probably still somehow accessible on the original reader? I can’t imagine the electronic copy somehow totally disappearing off of the original reader with no trace when it was being “shared”, so would that then defeat the first sale doctrine?

  7. I found the Grosso article rather interesting. The notion that computer code comprises speech and the regulation thereof is a constitutional violation was very intriguing. I also found the implication that if you discuss the weaknesses in decryption hardware you are violating the DMCA were very enlightening.

    The article mentions that “no person shall offer to the public…traffic…any technology…that has only limited commercially significant purpose other than to circumvent.” Well, this is certainly counterintuitive. The prohibition of these technologies will create a stagnation in the field and prevent creating current, enhanced, and stronger protections for the digital medias. If it is prohibited to discuss the weaknesses and strengths, how can we improve, learn, or advance in the field? This was not the intention of the DMCA. In an era where technology becomes obsolete every six months, a lapse in updating security systems can result in billions of dollars lost to the companies whose technologies are stolen after enforcement of the DMCA causes a of the DMCA to protect their intellectual property.

    I really enjoyed the statement that basically mentioned how ridiculous it was to apply criminal law to a Russian national that never marketed to the US specifically, simply because they used the World Wide Web.

    One thing that stood out to me was how much the DMCA application was reminiscent of the Lori Drew case. It seems that the DMCA, which intended to protect copyright holders, has instead endowed them with the right to regulate end users and determine who will be prosecuted, order ISP’s to control their subscribers, and ultimately take the place of the legislature.

    In contrast, what is the difference between burning a copy of a DVD you purchase or recording onto a VHS the same movie that is being shown on Showtime?? What if I copied this movie from my Netflix account onine? How do lawmakers make a distinction between virtually identical acts?

    Finally, the purpose of the Fair Use provision was to enable the advancement of technology. To argue that it is not a constitutional right is to negate the legislative purpose in its enactment.

  8. I too found the arrest of Dmitri Skylarov to be interesting. Just today I read about the cracking of the HDMI DRM incryption scheme. This morning this site http://rudd-o.com/en/monopolies-of-the-mind/spread-this-number was crowing about the the discovery of the Hex key that apparently can be used to crack HDMI signals. In the intervening 18 hours the website owners apparently were informed of the very same sort of DMCA violation that Skyalrov was arrested for.

    In the site listed above the site owners complained they were unaware that a number could be copyrighted. In this case it isn’t merely the number, but the research used to get the number and the effects the number could have on HDMI DRM.

  9. One thing I’ve noticed with the Kindle is that you can now download software to load the book onto your computer. There, as a file, you can move the ebook from one reader to another. This seems like a violation of the DMCA. If I have a Kindle and my friend has a Kindle, we can each have a copy of the book I bought. Especially since ebooks tend to be less expensive than paper copies of books, this could cause a problem with copyrights and losing money from ebooks, preventing authors from wanting to put their work in digital form.

    On a completely different note, if I were a competent hacker and tried to exploit a security flaw, without any goal of profit or reproduction, would that still be a violation? Wouldn’t it be beneficial to the companies to have people point out these flaws and then fix them? I’m not sure where this would go, but it’s a troubling issue.

  10. I find this topic very complicated to understand. It seems like the four-factor exception is “form without substance” to a degree.

    “This means that even though the end use may meet the four factor fair use exception, if access was obtained in violation of the DMCA (ie. there was a control provision in place that had to be circumvented) the right holder has an action against the user.”

    This is obviously troubling to the extent that fair use rights are impeded. While fair use rights may not be constitutionally protected, maybe they should be in order to promote the exact things fair use is designed to protect. In an internet-laden world, these rights are becoming more important.

    I agree with the Executive Summary that more specific rules should be in place to guide those seeking to engage in “fair use” of a protected product.

    This area of law is so complicated. It hurts my brain. Can I get sued for making CDs out of my iTunes downloads?

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