The DMCA was designed to strike a balance between the needs of consumers and those of creators. The issue is a control over piracy. In the eight years since the law’s passage, piracy has not disappeared, nor, by many measures, has it lessened. However, the success or failure of this act depends entirely on who you talk to. The debate is most often cast as a consumer issue, so both sides are looking for your (the consumer’s) ears. Strong arguments exist from either perspective, but both sides agree there have been unintended consequences to the provisions of the DMCA.
Drawing Battle Lines: See who falls on which side of the DMCA debate
PROPONENTS
Despite vocal opposition, controversy and fear-mongering, the DMCA does have significant support, and not only from the corporate and entertainment world. Among the proponents are artists, business executives, and many judges and lawmakers. Their stance is that copyright law is designed to offer incentive to artists and musicians to create original content. According to Berkeley journalist Sara Robinson, “This group sees research restrictions as a necessary evil for protecting intellectual property in the digital age, just as the law’s opponents see difficulty in enforcing intellectual property rights as a necessary evil for protecting freedom of expression” (Robinson, 2002). The supporters come from high and powerful places. The concentration of the media industry has contributed greatly to the power media corporations have to influence government changes in copyright law and duration.
The copyright industry does have some right to fear that digital versions of their content (music, movies, televisions shows, games) are easier to copy and disseminate through digital channels, creating a challenge to the market model (Samuelson, Scotchmer, Berkeley). The Motion Picture Association (MPA) estimated worldwide losses due to piracy to be US $2.2 billion in 1997 and $3.5 billion annually in 2002, 2003, and 2004 (Lohmann and Seltzer, 2006).
The DMCA appeals to a common sense idea: that it is wrong to break through locks to digital content, and that technological devices that allow this should be outlawed. It’s not only wrong, it’s bad for the economy—bad to the tune of billions of dollars in lost revenue. As Mitch Glazier, Recording Industry Association of America (RIAA) senior vice president of government relations and legislative counsel, "Anti-DMCA groups have the point of view that in a digital environment there should be no rules and that people should be able to do whatever their equipment is capable of doing," Glazier says. "But in order for there to be a marketplace, there has to be rules of the road" (Pruitt, 2002).
Copyright in America was written and designed to "promote science and the useful arts," not merely to protect commercial interests. In 1998, there was very little controversy or fanfare surrounding the law. The Senate agreed to it unanimously, and a unanimous House approved it by voice vote and then bypassed a procedural step that would have delayed the DMCA's enactment. It’s a common misconception that copyright is all about money, but it’s also to a great extent about control. The DMCA protects the use of digital content for instructional (educational) purposes, but not necessarily for non-profit purposes (Davidson, ). Proponents also point out that fair use protections in copyright law do already protect the First Amendment and free speech by definition. Copyright owners can—and often do—provide latitude for the use of their copyrighted materials. Many artists, cable channels, and public broadcasting services do allow copying and use—for the public good (Davidson).
THE INDUSTRY’S NEEDS
The DMCA protects existing business models. Movies produced by Hollywood studios today can easily cost upwards of $100 million dollars, and this kind of budget would be impossible without a return on investment (Attaway, 2006). The Motion Picture Association considers the success of the DVD player in America to be directly tied to the effectiveness of DMCA legislation. Millions of DVD players have been sold, and film companies trust that laws are in place to protect the material they create for digital use from being copied and disseminated (Attaway, 2006). A strong proponent of expanding the already far-reaching DMCA provisions, the MPA claims the law allows more entertainment options for viewers, particularly for television programming.
Fritz Attaway, a MPA senior executive, says it’s completely untrue that the DMCA has stifled innovation and technology. He says mainstream media is cooperating and contributing as well. Attaway offers a list from of new viewing opportunities available to Internet users in the DMCA era:
• Warner Brothers partners with Free Record Shop using P2P distribution
• Disney offers feature length film on iTunes
• CBS delivers college basketball "March Madness" online
• ABC offers free downloads at ABC.com
• Google Video beta launched-essentially going with a wholesale reseller model- creating an iTunes-like store.
(Attaway, Wall Street Journal, 2006)
The MPA may have the interests of the entertainment industry at heart, but Attaway says the TV and film industries are hesitant to offer more programming and film choices if they feel unprotected against theft (Attaway, 2006). Their fear is that the intended uses of the program, film, TV show, song, etc… will be abused. It’s essentially consumers saying they plan to rent and then being unwilling to return once the due date rolls around.
The DMCA support is often divided along party lines. Who supports the DMCA in the political arena? Companies which own content or supply Digital Rights Management (DRM) technology have supported the law through various lobby groups and political contributions to sympathetic members of Congress. The political reality has been that content owning companies make a lot more political contributions and hire more expert lobbyists than their opposition. Another factor DMCA advocates consider in the importance of adapting, or ‘harmonizing” U.S. copyright laws with the rest of Europe. Since the exportation of popular culture products to the rest of the world is big business to the U.S., it’s important that protection levels jive with those of foreign competitors (Free Expression Policy Project).
The conclusion of the National Research Council on the topic of digital copyright is vague at best, citing historical precedence while admitting to a new degree of complexity in the digital age:
“The tradition of providing for a limited degree of access to published materials that was established in the world of physical artifacts must be continued in the digital context. But the mechanisms for achieving this access and the definition of ‘limited degree’ will need to evolve in response to the attributes of digital intellectual property and the information infrastructure” (The Digital Dilemma, 2003).
CREATIVE TOOL OR COMMERCIAL VEHICLE?
The CEO of the Association of American Publishers (AAP), Patricia Schroeder, says she and her colleagues are always made out to be the bad guy in the DMCA debate. In a speech at the 2001 World Intellectual Property Organization (WIPO) International Conference, Schroeder explained, “Many technology companies opposed the DMCA, calling it a ‘publishers’ model that would destroy the ‘open model’ of the Internet. That meant our insistence that intellectual property owners be protected from piracy made us the enemies of ‘openness’” (Schroeder, 2001).
Herein lies a huge distinction between the opponents and proponents of a strong copyright law: Whereas the EFF, Free Software Foundation (FSF), Lessig and many academics view cyberspace as a “creative commons,” not everyone does. Schroeder says, “Technology is not a creative tool. It is a high quality copier of the works created by others” (Schroeder, 2001). The extent to which any digital technology can or should utilize a “free” space is hotly contested.
Schroeder adds, “…AAP has become ‘the bad guy’ and a prime target for everyone on the Internet who thinks the DMCA is wrong. I could fill this room with printed out angry e-mails we’ve received” (Schroeder, 2001). Schroeder speaks in no uncertain terms when she tells the WIPO convention that talk from the opponents’ side about “reverse engineering” and “fair use” just mean that hacking is the way these companies and individuals make their living, and that she deems unacceptable. “Publishers are really investment bankers in copyright and investment bankers must be sure their investments are secure,” she adds. “Publishers and authors alone cannot protect their content in the global environment of the Internet. They need the support of the international legal framework that WIPO is creating, and their own government’s help to enforce the international protocols” (Schroeder, 2001).
One aspect of the DMCA language that both sides could tout as a positive, according to John Crosby in a 1999 article in Information Outlook, is that it does create potential loopholes for information specialists. Supposedly, these loopholes protect groups like librarians and nonprofit organizations who have legitimate needs in accessing and copying content. The DMCA language is not so complete that it isn’t navigable by an informed technician or researcher, Crosby says. Declan McCullagh agrees that sometimes opponents want to dramatize the law’s effects. The more confounding and sweeping the law’s language appears to laymen, the more it can be seen as a jeopardizing fair use. McCullagh says in truth researchers and engineers don’t have to fear publishing their material if the material doesn’t contain code.
OPPONENTS
Opponents make specific claims about the odious and chilling effects of the DMCA including limiting innovation and competition amongst companies, creating a presumption of guilt without evidence of circumvention intent, preventing legitimate uses of technology, and stifling academic research and speech, just to name a few. The DMCA uses legal code to protect the protection software that copyright holders created to prevent piracy. Opponents claim the law has succeeded all too well. In broad and sweeping language, the law prohibits "any technology, product, service, device, component, or part thereof, that ... 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” (U.S. Copyright Office).
In his book FreeCulture, Lawrence Lessig calls the DMCA a “weirdly Orwellian law invoked to control the spread of information” (Lessig, 1999). This is a straightforward accusation and a good place to begin in the vast and vocal world of DMCA opposition. The question the DMCA asks, Lessig explains, is not whether there was fair use involved. Opponents like Lessig say fair use is not protected by the DMCA. “The question is not whether the use of the copyrighted material was a copyright violation. The question is whether a copyright protection system was circumvented” (Lessig, 1999). Essentially, this means blame occurs before the establishment of guilt, or without any actual violation of copyright. Merely possessing the means to violate is enough. Opponents view it like this: A car can be used to commit vehicular manslaughter—an unintentional effect of driving it—but we don’t charge the owners of vehicles with a crime of possession for something put to its fair and proper use.
Of course, this isn’t the first time a technological device was challenged in its ability to override copyright laws. Here’s an interesting example: In 1981, a California court tried to uphold that VCRs were copyright infringers because they let owners tape programs without the copyrighters’ consent. If there was any potential for illegal uses, even if most people would use it legally, the court held the VCR makers responsible (Lessig, 1999). Obviously, today this seems ridiculous to us. We have countless devices and that let us control and tailor the content, timing and uses of our entertainment, news, music, films, software, etc.
Why ban something that has never killed, and does have the potential for good uses, when there are other devices (like guns) that are harmful in a very direct and lethal way? No one has ever been killed by copyright infringement.
Some may argue that circumvention technologies should be outlawed in all cases, since they are most often the tools of hackers. However, according to digitalconsumer.org, “There are many legitimate uses for circumvention technology. For example, law professor Lessig notes that circumvention technology could be used to allow blind readers to extract the text from an electronic book so that the text can be read out loud. Other legitimate uses include moving a book from one place to another, listening to a song in your car stereo, or saving a television show to watch it later (digitalconsumer.org, 2006.)
“By making circumvention technologies illegal even when they have legitimate uses, the new copyright laws place us at the mercy of the content companies. Even if we have a theoretical right to make a copy of a TV show, we have to circumvent copy protection in order to exercise that right. The circumvention is illegal even though we're performing the circumvention for legal purposes. This loophole gives the content industries unprecedented power over how citizens use information, and it dramatically alters the balance that our laws used to preserve” (digitalconsumer.org).
BIPARTISAN EFFORTS
Several politicians are hoping to retool the language of the law to forbid only actual copyright infringement rather than just circumvention. Fred von Lohmann of the Electronic Frontier Foundation points to Representative Rick Boucher's (D-VA) DMCA Reform Bill (HR 1201), also known as the Digital Media Consumer’s Rights Act, which advocates that citizens have the right to circumvent copy-protection measures as "long as what they are doing is otherwise legal" (Phillips, 2006). The act has the support of the Personal Technology Freedom Coalition and the American Library Association, to name a few. Other Democrats in Congress have proposed similar bills; however the majority of Congress supports the act (Free Expression Policy Project).
“We have what I think is a more important issue before us and that is to eliminate the potential for enormous harm that the DMCA will cause. The DMCA is one of the greatest barriers to innovation that Congress has ever adopted, in my opinion. It also works counter to the basic purposes of its main supporters because the entertainment industry will ultimately suffer as people are restricted in their ability to buy digital media. If they are restricted from using media in the home in the way in which they want to use it, the value of the digital media declines--there won't be as much demand for it--and if the demand for digital media doesn't mature, the very creators will be the ones who suffer the most.”
-Rick Boucher, (D) Virginia, who along with John Doolittle (R) California, proposed the Digital Media Consumers’ Rights Act in 2003
http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.1201:
CHILLING EFFECTS
Circumvention can be critical for researchers. But they can be scared to publish findings gathered after circumventing a technology (like for software research) for fear DMCA enforcers will come knocking at their door. It’s sometimes difficult to foresee whether conduct will be deemed illegal or not. In a famous recent case, Edward Fenten, a computer scientist at Princeton University, and his colleagues delayed a presentation of their co-authored paper for four months after receiving DMCA law enforcement threats (McCullagh, 2002). Interestingly, the findings of the paper were originally part of a recording industry challenge to test water-marking schemes for digital music. The recording industry was offering a $10,000 prize to the researchers who could crack the schemes fastest. The Electronic Frontier Foundation (EFF) helped Fenten file his own counter-suit, but the case was eventually dropped. In three ongoing DMCA cases in court, the courts have sided with the entertainment and music industries (Robinson, 2002).
3. LINK: One solution to the copyright debate is a Creative Commons license, a unique compromise for free expression in which copyright holders can allow some access and use by the public through a variety of contracts and licensing schemes (www.creativecommons.org). The goal is also to allow sharing of information without getting into legal hot water.
The Electronic Frontier Foundation has been at the forefront of an analysis of “abuses” allowed by the DMCA’s language and specific sections. According to an article by the EFF, those abuses include: limiting access to public domains on the Internet, mistaking uncopyrightable facts, plain error (like mistaking a professor named “Usher” at Penn State for the musician “Usher” and nearly shutting down the school’s web server), and the stifling of social criticism. All of the former abuses led to subpoenas issued without a judge’s review (“Unsafe Harbors,” 2003). Opponents like the EFF say the law is unconstitutional, a violation of First Amendment rights, and could threaten to unravel the entire U.S. copyright system (Pruitt, 2002).
2006: MORE AMENDMENTS THAN EVER
All is not lost for the vocal opponents of the DMCA, however. There are opportunities for changes. Every three years, the Copyright Office reviews the anti-circumvention protections as they stand and comes up with a list of needed exceptions. The third time through this process occurred Nov. 22, the Wednesday before Thanksgiving. The timing might have been significant to allow the news to slip quietly under the radar of most holiday-frazzled Americans. This time through, the Copyright Office did approve the largest number of exceptions to date:
****List of 2006 Exceptions ****(Courtesy of the U.S. Copyright Office) ****
1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.
2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.
4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.
SEE ALSO: http://www.copyright.gov/1201/docs/1201_recommendation.pdf
Many are heralding this new list of exceptions as much-needed freedom for researchers who use reverse engineering to test for glitches and problems in new software. It also offers librarians more access to texts to copy for public use. It even lets cell phone users unlock their phones to reap the full benefits of the usage package they purchased. Other critics say the exemptions are still too narrow. For example, InformationWeek reports that the loophole for reverse engineering seems written solely to prevent a situation like the one that occurred last year, when Sony put a root kit on many of its audio CDs in an attempt to prevent bootlegging. At this time last year, removing the root kit would have violated the DMCA. Now it’s ok to do it, but ironically, it’s still illegal to obtain the circumvention tools with which to do it (Wagner, 2006).