The following is an academic paper I wrote last spring. It is what I feel to be the best explanation I can give about the Digital Millennium Copyright Act (DMCA), it also includes my strong opinions on the future of copyright law in America. A strong understanding of copyright is essential to an understanding of how the music industry works as a whole.
Warning: This is a long post.
With the advent of the internet in the mid to late 1990s, many questions regarding copyrights and digital distribution emerged. In the later half of that decade, far more ferocious abuse of digital technology emerged in the form of peer-to-peer file sharing. While on the surface file sharing has fundamentally positive intent, the technology was quickly adapted to share digitally compressed music and video files that were in fact outright violations of US copyright law. As a result of this the Digital Millennium Copyright Act was proposed. Promising to stem the flow of illegally copied files with strict civil and criminal penalties, the DMCA was signed into law in 1998. There has been much controversy over the effectiveness and scope of this Act, some say the language is too vague and others contend that the DMCA excludes legitimate uses of copyrighted material. Whatever the complaint may be, it is clear that the Digital Millennium Copyright Act must receive careful scrutiny as it faces its first legal challenges in the US Court system.
Since the beginning of the information age and extensive computer networking there has been a divide between conventional intellectual property and digital intellectual property. This difference lay not in the legal arena but in the perceptions of those individuals that utilize such technology. Typically the internet and all digital media were characterized as belonging to all, an idea that was very much reinforced by the open-source movement. Open-source essentially means that software developers relinquish their claim to the heart or “source code” of their programs, they surrender their copyrights in essence. While this concept is proving itself in the realm of software with the notable example of the Linux operating system, it is not very compatible with more traditional forms of media. The online concept of a public pool of knowledge is in direct contrast to the way western governments view intellectual property, and in-fact removes the incentive to create new works that is the basis for US Copyright Law.
The Digital Millennium Copyright Act was drafted as a means of providing the same order and benefits of holding a copyright to the online frontier. In order for the Internet to be exploited as a commercial marketplace, it is essential that intellectual property be protected in much the same way as it is in a tangible medium. “… Regardless of how the market shakes out, the reality is that the Internet is merely a pipeline and does not work without the protected content of copyright owners.” (Alderman) Entertainment as a marketable commodity relies on the basis that the material generated by performers, authors and songwriters, as well as software programmers is guaranteed in some definite quantity. However, due to the intangible nature of digital media it became necessary to redefine the method by which copyright is protected.
Prior to the advent of digital technology the prevention of illegal reproduction of copyrighted material was a far easier matter as the expenses of duplicating an entire work at equal quality to the original far outweighed any potential benefits to performing the illicit action. “… Digital copyright protection has been translated into encryption, other technological protection measures and electronic contracts, all of which restrict access to works …” (Alderman) As a result of the differences between conventional and digital media, the protection itself was adapted and redefined in the legal code. Hence the adoption of a new set of copyright laws in the form of the Digital Millennium Copyright act of 1998.
One of the most significant and controversial measures of the DMCA is section 1201, which is known as the anti-circumvention provision. This provision essentially prohibits the creation, sale, or public offering of software or technology that is specifically and primarily designed for the circumvention of copy-protection schemes used on digital copyrighted works.
According to the actual text of the DMCA, it is the responsibility of the Librarian of Congress to make rules on whether those who exploit copyrighted works are likely to be adversely affected by the prohibitions of the code in their ability to make works that do not infringe upon the DMCA while still remaining within the bounds of the standard copyright law. What this means is every three years a list of exemptions to the DMCA is released that is in effect for the subsequent three year period. These exemptions are designed to prevent prosecution in cases where the DMCA prevents legitimate business from being conducted that is in violation of no other US codes. In December of 2003 the following appeared in American Libraries magazine:
Librarian of Congress James Billington has issued four narrow exemptions to the Digital Millennium Copyright Act (DMCA) prohibition on circumventing digital copy-protection technologies, disappointing consumer-rights groups that had hoped for broader exceptions.
Billington's October 28 announcement included two new exemptions: one allowing circumvention of access controls that block read-aloud or text-to-Braille devices, and another permitting circumvention in the use of computer programs and video games whose formats have become obsolete. He renewed exemptions issued in 2000 that allowed access to the lists of websites blocked by filtering software and the circumvention of access-control mechanisms that block because of malfunction, damage, or obsoleteness. The exemptions expire after three years, after which they must be renewed by LC's Copyright Office. (American Libraries)
This is evidence that the system set in place by the Digital Millennium Copyright act is in-fact operating. Despite this there remain many public complaints that the act does not allow great enough fair use by consumers or institutions of education. Consumer advocates argue that certain fair uses of copyrighted works such as creating backup copies and transferring works to other media for personal use requires circumvention of certain encryption technologies, which is currently outlawed by the DMCA in all cases. Part of the reason for the lack of a fair use provision comes from the fact that there have been very few legal challenges to the current DMCA.
This changed in January 2003 with US v. ElcomSoft. This case involved a Russian software firm called ElcomSoft responsible for developing software which could “remove the use restrictions contained in Adobe Acrobat PDF files and files formatted for the Adobe eBook reader.” (Gasaway) While not illegal in Russia, this type of software was completely outlawed by the DMCA at the time of the program’s development. This made the case doubly significant because it also tested how the laws of the United States in regard to copyright affect the actions of businesses overseas.
The fact that ElcomSoft’s program was available commercially on the Internet meant it was readily available in the United States. In the eyes of US prosecutors this meant that ElcomSoft as well as Dimitri Sklyarov, the programmer who created this software, were eligible for both civil and criminal penalties as outlined within the text of the Digital Millennium Copyright act. “Sklyarov, who undertook the research to produce AEBPR as a part of his doctoral dissertation, was invited to Las Vegas to present a paper at the Defcon convention in July 2001. He was arrested after giving a speech about the weaknesses in Adobe's software and served three weeks in jail.” (Gasaway) This illustrates the almost ridiculous severity of the penalties outlined for unintentional infringement by parties that are not even violating any laws in their home countries.
Fortunately Sklyarov was spared any significant jail time as a result of this case due to public embarrassment brought by protests against Adobe. Despite this the case of US v. ElcomSoft did bring attention to the overly broad scope of the DMCA. ElcomSoft was eventually acquitted of all charges by the jury in the case. “Some copyright watchers have postulated that the jury was not only deciding on this case but was stating an opinion about the anti-circumvention law itself.” (Gasaway) It does seem the jury expressed an opinion that went outside the bounds of the case. No matter what the motivations of the jurors their ruling in this case set a significant precedent for the enforcement of the DMCA. As with any law the true interpretation comes through court cases which challenge the law, though in the case of the DMCA there have been so few cases that the entirety of the act has not been completely examined in a legal proceeding.
Further problems have arisen in the software community as a result of state laws that were originally written to complement the federal statute. Dubbed “super DMCA” laws by opponents these laws extend the scope of the DMCA to cover software that helps conceal the location of computer data transmissions among other possible copyright issues. Currently the only consequences of this have been public backlash toward legislators and several instances of legitimate software being discontinued in fear of prosecution under these laws. However, the consequences could be far more serious than this depending upon how law enforcement agencies interpret these laws. “This makes a whole set of common IT programs and hardware illegal, from firewalls to VPNs to privacy applications.” (Rapoza) An incredible number of network security systems that are already in place over a huge portion of the internet infrastructure could possibly be considered DMCA violations under current standards. This puts thousands of corporations and IT professionals at risk of severe civil and criminal penalties for simply performing their day-to-day duties. Overall there are very dim prospects for digital media under the current Digital Millennium Copyright act. Unless prosecution and investigation in cases that may pertain to the DMCA or Super DMCA legislation is carefully supervised the original spirit of copyright laws and maybe even the civil liberty of US citizens may be in danger.
Personally speaking, I feel the Digital Millennium Copyright act was completely unnecessary in its entirety. The best response to the emergence of digital media technology and online file sharing would have been a revision of the pre-existing Copyright Act of 1976 to include these new media. The primary reason the DMCA was drafted was to delineate for the courts how best to deal with new forms of reproduction and distribution in combination with new mediums of expression. As such it does not seem to make very much sense that the new laws would encompass a broader scope than the previous copyright laws.
The original copyright legislation used by the United States was written in a very specific manner so as to prevent confusion with the interpretation of the laws. It was made very clear from the start precisely what was meant by infringement. In addition the original US copyright laws did not make mention of the method used to protect those copyrights, that was left up to the agencies responsible for monitoring copyright registration itself as well as the courts. The DMCA seems to place more emphasis on the fact that the copyrights are somehow enforced innately rather than on the importance of the contents contained within. Scrambled media does contain the copyrighted content but in and of itself has no intellectual value. The technology used to protect material may be patented, but when that technology prevents legitimate use of copyrighted material and then itself become protected, what good does it serve the public? That is what this is all about after all, the good of the public.
The primary purpose of copyright law is to provide for the public benefit by providing incentive to authors to create their works. If the copyright law is being perverted to best serve the businesses which exploit these materials rather than the consumer using the materials how does that help the public? It deters artists from creating new works if the use of their work is subject to the whim of a distributor and its choice of copy-protection technology. This also creates a double-standard in the case of material that is not protected by any of this technology. It seems the full protection of the law is only afforded to those who have the resources to provide a method of copy prevention.
There are a great deal of questions remaining to be asked about the DMCA. Without any kind of fair use provisions it is questionable whether educational institutions can be held liable for the continuation of uses that were permitted by previous legislation.
Right now this issue has not been addressed, and if it is not addressed then we could very well see suits against Colleges and Universities as well as public schools in the near future. If industry organizations like the RIAA and the MPAA get greedy enough they may pursue action against these institutions under this act and state legislation like it. Many question whether the actions of these organizations are even in the best interests of the artists and filmmakers they claim to represent. Some artists have seen their work perverted to serve the purpose of corporate copyright holders, thankfully this has only been done against legitimate copyright violators, but that may change.
In order to prevent a very negative situation from occurring, the DMCA should be carefully scrutinized. Given the great importance of the material covered by the law this scrutiny should have been applied in the drafting of the legislation. It is too late for that now, but there are ways to draw attention to the problem. Currently, the legislation is written in such a way that gives copyright holders far more power in enforcing their copyrights than ever before. It is also far more likely that a party receive severe criminal penalties for lower levels of infringement than ever before. It is getting to the point where millions of Americans could conceivably be jailed for activities that they may not even know are infringing.
No matter how you view the DMCA it is clear that certain items are simply not covered in the most beneficial way possible. If significant changes are not made to the Digital Millennium Copyright Act then it is possible opponents may seek full repeal of the laws. The problem with the DMCA does not lay within the intent of the law, but rather in the poor way which this law was conceived and drafted. If the DMCA is revised and repaired then I sincerely hope it serves as an example of how carefully federal legislators must wield their powers.
Sources
Alderman, Elliot C. The Alderman Law Office. “The Digital Millennium Copyright Act” 1999.
American Libraries. “Billington issues narrow DMCA exemptions”. December 2003.
Findlaw.com Laws: Cases and Codes: US Code: Title 17. Copyrights.
US Code Title 17 Section 1201.
Gasaway, Laura. Information Outlook. “Enforcement of DMCA criminal penalties suffers setback” March 2003. 22-23.
Rapoza, Jim. eWeek. “New Law Putting Net – and You – at Risk”. April 17, 2003.
