4.2.3.3 The Digital Millennium Copyright Act
The Digital Millennium Copyright Act of 1998 was passed by congress in order to implement the treaties signed by the U.S. at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. The law contains numerous provisions, including:
- Requiring “webcasters” to pay licensing fees to record companies,
- Limiting copyright infringement liability for Internet Service Providers (ISPs) that simply transmit information, while requiring them to remove material from users’ web sites that appear to be infringing copyright
- Limiting, under certain circumstances, copyright infringement liability for nonprofit institutions of higher education, that act as online service providers, when faculty members or graduate students infringe copyright
In addition to these provisions, which are relatively non-controversial, the law contains another set of provisions that are highly controversial. These provisions, often referred to as Section 1201,
- Prohibit the act of circumventing a technological measure used by copyright owners to control access to their works, and
- Outlaws the manufacture, sale, or distribution of tools and technologies used for circumventing copy protection schemes.
The DMCA does provide exemptions to these provisions for encryption research, computer security testing and product interoperability; along with exemptions for nonprofit libraries, archives and education institutions – under certain circumstances.
Your reaction at this point is probably “This sounds fair to me. What’s all the controversy about?”
One concern is that by making the act of circumventing a copy protection measure illegal, consumers could be denied the ability to enjoy many well-established “fair uses”.
For example, if a lawfully purchased audio CD includes a copy protection scheme that prevents consumers from making a copy, it would be a crime to “crack” that scheme even if your intent was to make an archival backup copy of the disk – a generally recognized “fair use” of copyrighted material. It would become illegal to generate MP3 files of copy protected music you had lawfully purchased in order to play those files on your own portable MP3 player – even though the courts have ruled that MP3 players are legal and creating MP3’s of music you have legally purchased is generally considered a fair use. Audio CD’s are now being released with copy protection schemes designed to prevent them from being played on computers, cracking the protection scheme to make the disks playable on a computer is illegal under the DMCA, even though playing a CD on a computer (as opposed to a CD player) is generally considered a fair use.
Outlawing the tools and technologies used for circumvention also entails a set of problems. In effect, it bans all tools that can be used for circumvention, even if the tool or technology has many otherwise legal uses.
In July 2001, a Russian programmer, Dmitry Sklyarov, was arrested while in the United States to speak at a conference. Jailed for several weeks, then detained in the U.S. for an additional five months, Sklyarov’s alleged crime was that he worked on a program known as the “Advanced e-book Processor”. This program allowed people who had purchased Adobe electronic books, or e-books, to convert them into Adobe’s Portable Document Format, PDF, thereby removing the copyright protection mechanisms embedded into e-books. Although the e-book processor can be used to “pirate” e-books, it has many useful functions – such as allowing a work released as an e-book to be processed by programs that read to the blind.
As these examples illustrate, the anti-circumvention provisions of the Digital Millennium Copyright Act have engendered widespread debate over what constitutes fair use. While the Audio Home Recording Act of 1992 and the 1984 Supreme Court ruling in the Sony case appear to support an end user’s right to copy a CD or DVD for noncommercial home use, as of June 2003, there was no legislation or case law that specifically addressed this issue. The relatively weak legal standing of fair use “rights”, combined with the urgent desire of media companies and legislators to stem music piracy, has brought us to this point. It will be interesting to see how the desire to maintain fair use while protecting intellectual property rights will be eventually balanced.