An Insight into The Digital Millennium Copyright Act - (a copyright law in force in the U.S that extends copyright law as it applies to digital media) and the impact of that Act on research within the technological industry in the United States. Name: David Reade Student No: 99755629 Class: CASE4
1. Introduction 2. The Digital Millennium Copyright Act 2.1 Main Provisions of the Act. 3. A threat to fair use and genuine research? 3.1 The SDMI 3.2 FBI Arrest Russian Programmer 3.3 Prominent Researchers forced to withhold research 3.4 A threat to freedom of speech? 4. Conclusions 4.1 Continued support for the DMCA 4.2 Continued opposition to the DMCA 4.3 The need for a digital revolution 5. References
Passed by the U.S congress on January 27th 1998 and signed into law by President Clinton on October 28th 1998, the Digital Millennium Copyright Act (DMCA) represents the most comprehensive reform of United States copyright law within the last number of years. The DMCA was the foundation of an effort by the U.S Congress to move the nation's copyright law into the digital age and was a response to the perceived need to implement obligations imposed on the U.S. by the 1996 World Intellectual Property Organisation (WIPO) Copyright Treaty. The U.S Congress implemented the WIPO treaties by enacting legislation to address those treaty obligations that were not adequately addressed under existing U.S. law. Legal prohibitions against circumvention of technological protection measures employed by copyright owners to protect their works, and against the removal or alteration of copyright management information, were required in order to implement U.S. treaty obligations. The DMCA actually went further than the WIPO treaty required as it also covered the concerns of copyright owners, who felt that their works would be widely pirated in the networked digital world. The congressional determination to promote electronic commerce and the distribution of digital works by providing copyright owners with legal tools to prevent widespread piracy was tempered with concern for maintaining the integrity of the statutory limitations on the exclusive rights of copyright owners. In addition to the provisions covered in the act there were other proposals - including amendments that were not adopted, but were the subjects of a number of studies mandated by the DMCA. This highlighted the nature of emergent technologies which the act deals with and the ever changing technological industry. At the time the DMCA was heralded by advocates as protecting the rights of artists, writers, and even programmers, to prevent their digital work from being illegally copied and distributed without their permission. Over the past few years however, a number of high profile controversies has seen the entire technological sector grow increasingly wary and cautious of provisions set out in the act.
The DMCA is in fact a number of acts which add to and amend title 17, United States Code in order to implement the World Intellectual Property Organisation Copyright Treaty and Performances and Phonograms Treaty. Section 2.1 is merely a summarised version of the main provisions laid out in the Act. For a full version see: [DMCA - The DigitalMilleniumCopyrightAct.pdf]
TITLE 1: WIPO TREATIES IMPLEMENTATION This title is cited as the ''WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998''. The main provisions
laid out by this title are: TITLE 2: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION This title is
cited as the ''Online Copyright Infringement Liability Limitation
Act''. · Limitations on liability for copyright infringement. TITLE 3: COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION This title is
cited as the ''Computer Maintenance Competition Assurance Act''. · Limitations on exclusive rights; computer programs. TITLE 4: MISCELLANEOUS PROVISIONS Provisions relating to the commissioner of patents and trademarks and the register of copyrights. · Provisions
Relating to the Commissioner of Patents and Trademarks and The Register
of Copyrights. TITLE 5: PROTECTION OF CERTAIN ORIGINAL DESIGNS This Act is referred to as the ''Vessel Hull Design Protection Act''. · Protection of
certain original designs.
To date the DMCA has resulted in a number of high profile controversies relating to fair use, idea exchange, censorship and innovation and competition. These controversies have involved the FBI and some high profile lawsuits, some of the most famous being, Professor Edward Felten's plight after successfully cracking watermarking technology and the arrest of a Russian programmer on the request of Adobe Systems Inc
SDMI stands for the Secure Digital Music Initiative and is both the name of the multi-industry organisation and the technology it is attempting to implement. Its aim is to make digital music secure and in September 2000 the SDMI issued a much publicised challenge to all skilled technologists to try to crack certain watermarking technologies intended to protect digital music. The challenge was taken up by Princeton Professor, Edward Felten and a team of researchers at Princeton, Rice, and Xerox. Felten and his team were one of two groups who claimed to have successfully cracked the watermarking technology that the SDMI had put forth for the challenge. Professor Felten was due to present his findings at the Hiding Workshop conference in April 2001 but when he tried to present his results, SDMI representatives threatened the researcher and his team with liability under the DMCA. A threat letter was sent to the researchers' employers, as well as to the conference organisers stating that "Felten and his team would be violating the 1998 Digital Millennium Copyright Act (DMCA), which makes it illegal to provide technology that bypasses industry controls limiting how consumers can use music they have purchased." The threat was ultimately withdrawn after Professor Felten and his research team, represented by the Electronic Frontier Foundation (EFF), lodged the suit against the SDMI for blocking his publication of research on cracking the security of digital music and a portion of the research was published later at a subsequent conference. Felten had argued that the research was not only meant to benefit the scientific community, but also the record companies. He was stated as saying, "If they are buying into this technology, they have a right to know if it actually works". Felten frustration however was not aimed solely at the record companies and in fact his main plight was highlighting the shortcomings of the DMCA. Under the DMCA it is a crime to provide information that can sidestep copyright protection devices, which Felten and his team could be seen as doing by publishing their research. This scandal with Professor Felten and the SDMI was the first prime example of the misgivings with the DMCA and highlighted just how highly charged, a subject it is.
On the 16th July 2001, Russian programmer Dmitry Sklyarov was arrested by the FBI in Las Vegas and jailed for several weeks after the conclusion of the Def Con hacker conference, where he had presented material on undoing Adobe's e-Book.He was charged with "violating a provision of the DMCA, preventing the sale of tools designed to circumvent copy-control technology." Sklyarov was never actually accused of infringing any copyrighted e-Book, nor of aiding anyone else to infringe copyrights, his alleged crime was working on a software tool with many legitimate uses but because third parties that he has never met might use the tool to copy an e-Book without the publisher's permission he was found to be in breach of the DMCA. The arrest of Sklyarov caused outrage throughout U.S cities and it prompted many people to take to the streets in protest against Adobe and its products. The EFF stepped in and met with Adobe officials before agreeing the EFF and Adobe would jointly recommend Sklyarov's release. Initially the EFF had joined the protests, but withdrew once Adobe agreed to meet. In December 2001, after being held in the U.S for a number of months, Sklyarov was allowed to return home. The Department of Justice, however, is continuing to prosecute his employer, ElcomSoft, under the criminal provisions of the DMCA. After that incident the EFF along with many of the protestors said that this proves the need to return the focus of attention to the DMCA itself as this is where the heart of the problem lies. This incident also showed the larger companies that the ordinary people on the street are not willing to stand back and watch them push people around from behind the cover of the DMCA.
Following the legal threat against Professor Felten's research team and the arrest of Dmitry Sklyarov the DMCA has proved to be less than comprehensive in not hindering the vital legitimate work of experts in the area of research. This has resulted in a number of top computer experts shadowing their work for fear of potential liability under the DMCA. One such expert is prominent Dutch cryptographer and security systems analyst Neils Ferguson. He discovered a major security flaw in an Intel video encryption system known as High Bandwidth Digital Content Protection (HDCP). As a result of the DMCA he declined to publish his results and removed all references on his website relating to flaws in HDCP. He felt this to be necessary, even though he lived in Holland but felt that any future visit to the U.S could result in him facing arrest under the DMCA. Another example is that of Fred Cohen, a professor of digital forensics and a respected security consultant. He too removed material relating to his "Forensix" evidence-gathering software from his Website citing fear of potential DMCA liability. The DMCA has left in its wake a pattern of prominent researchers removing content from their websites for fear of liability. Lots of valuable research like that of Dug Song a security protection expert and the author of several security papers relating to firewall security has been removed for the same reason stated above. For this reason alone it is clear to see that the DMCA is preventing the "Circumvention of copyright protection systems and ensuring the Integrity of copyright management information" but at what cost? Preventing well respected experts from publishing their findings and putting the entire digital sector under an air of secrecy?
Not only has the DMCA been a threat to fair use and genuine research but has also been a threat to more freedom of speech and in particular freedom of the press. This was highlighted in "The Universal City Studios v. Reimerdes ". That case centred around 2600 magazine and eight major motion picture companies who brought a DMCA suit against the magazine seeking to block it from publishing the DeCSS software program. The DeCSS program can be used to defeat the encryption used on DVD movies. The magazine however, was not involved in the development of software, nor was it accused of having used the software for any copyright infringement. This chapter in the DMCA ended with the district court permanently barring the 2600 magazine from publishing, or even linking to, the DeCSS software code.
Five years of experience with the "anti-circumvention" provisions of the DMCA demonstrate that the act reaches too far and is still making people wonder if they are getting the right kind of protection for the right reasons. This is mainly because the DMCA has hindered a wide variety of legitimate activities in ways the U.S Congress did not intend. Each time a new incident occurs relating to the DMCA it reinvigorates opposition to the digital-rights law that affects all PC users not only throughout the U.S where the law applies but right across the globe as has been demonstrated earlier with cases such as that of Neils Fergusson. The intent of the DMCA may have been to prevent copyright infringement and not to turn digital technology users into criminals for making backup copies of their files but as the area of digital media grows 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.
As long as somebody is making money from the enforcement of the DMCA it will have support. The Recording Industry Association of America (RIAA) has been continually outspoken in its support of the DMCA after it forced a court battle that drove Napster into the ground. Declining record sales has brought out some strong support for the DMCA, in one 12-month period, the association says "the value of all music product shipments decreased 4.4 percent, falling from $6.2 billion to $5.9 billion". Others also believe that the fall will be greater in other media industries unless there is strict enforcement of the DMCA.
While the big money industries such as music and cinema give unwavering support to the DMCA it is the technological pioneers who strongly oppose any restriction on their freedom to explore and invent new technologies which will shape the world of tomorrow. These people are people like Professor Felten and the supporters of Dmitry Sklyarov who were outraged by the numerous controversies caused by large companies seeking enforcement of the DMCA. As long as researchers are restricted in their work there will be opposition to the DMCA. The difference with those who support the law and those who oppose it is that the supporters are more interested in lining their pockets that in any real self-development while those who oppose it, acknowledge the need for, and importance of copyright law but not at the expense of valuable research, aimed at furthering the very industry that stand opposed to them over the DMCA.
Currently consumers in the U.S are allowed to make personal copies of recordings they have purchased under the "fair use" laws. Over the past few years the music industry has become increasingly concerned with the introduction of new technologies such as CD-RW drives, DVD-burning software, and file-sharing sites like Napster and Kazaa. These new technologies have forced the music and film industry to introduce new anti-copying measures aimed at preventing the wholesale rip-offs that could seriously damage their business. Making personal copies of legitimately purchased programming to use on portable devices or to play on multiple PCs or at different locations would fall into the "fair use" category. It is for this reason that manufacturers, only interested in lining their own pockets support the DMCA because the making of those legitimate copies can be hindered by manufacturers who scramble their recordings and prevent the making of clean copies. If this occurs anybody developing and using technology to circumvent those electronic security measures is liable under the DMCA, no matter how that technology may be used. It is evident that with backers such as Major Movie studios and recording companies the future of research and technological development will be restricted as long as things remain the way they are. I believe that within the next few years the DMCA and similar copyright laws throughout the world will take on a completely different feel as the entire digital world will need to be reshaped in order to ensure effective copyright laws which do not hinder the progress and development of new and emergent technologies which may be vital in future development. It is evident from the research that I have carried out that the DMCA is flawed in its current state. The solution however, is not an easy one as the advent of new technologies over the past few years have taken the world of copyrighting by storm. Never before on such a large scale could so much information be freely passed around. I believe that the answer will lie in the standardisation of the entire world's media. The prospect of this may be years away but given the fact that the world has dramatically decreased in size with the introduction of digital technologies it is not feasible to expect national laws such as the DMCA to cope with such a global issue.
1.
Pamela Samuelson, "Anti-circumvention Rules: Threat to Science," 293
Science 2028, Sept. 14, 2001. 2.
Letter from Matthew Oppenheim, SDMI General Counsel, to Prof. Edward
Felten, April 9, 2001. 3. Lawrence Lessig, "Jail Time in the Digital Age," N.Y. Times at A7, July 30, 2001. http://www.nytimes.com/2001/07/30/opinion/30LESS.html 4. Jennifer 8 Lee, "U.S. Arrests Russian Cryptographer as Copyright Violator," N.Y. Times at C8, July 18, 2001.
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