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A Protester's Guild to the DMCA
A Protester's Guide to the Digital Millennium Copyright Act
(U.S. Code Title 17, Chapter 12, Section 1201)
The DMCA was enacted in the fall of 1998, to a great extent justified by
new World Intellectual Property Organization (WIPO) treaties which require
signatory countries take steps to improve the legal protection afforded to
copyrighted materials. Proponents make much of the exceptions and balancing
provisions in the DMCA, while failing to note that these vaunted exceptions
only apply to some of the provisions, leaving some of the worst provisions
unchecked and unbalanced.
Subparagraph (a)(1)(A) forbids circumvention of "a technological
measure that effectively controls access to [copyrighted works]." There is no
requirement in subparagraph (a)(1)(A) that the access controls be reasonable,
appropriate, or even intentional; any arbitrary access control for copyrighted
materials of any sort is granted legal reinforcement. Furthermore, otherwise
legitimate and beneficial uses of copyrighted material which are made
technically difficult or impractical by such access controls are thus legally
stymied as well, except as are excepted elsewhere in the DMCA. Note that
this subparagraph does not take effect until two years after enactment, which
would nominally be in the fall of 2000.
Note also that this subparagraph quite clearly exceeds the Constitutional
authority Congress has to protect copyrights, because the access controls
are granted legal protection whether or not they have anything to do with
protecting copyrighted material against infringement. It has been speculated
that this is a so-called "paracopyright" which would be justified under the
commerce clause instead, which, if successful, would throw decades of
carefully balanced intellectual property legislation and case law in this
country into chaos.
This subparagraph makes a bit more sense if you think of the case of cable
TV service, in which the entire business model is vulnerable to theft of
service if access controls are violated. But the language used is so broad
as to apply to any conceivable service or material containing copyrighted
material which contains access controls, whether or not copyright infringement
and theft of service are even plausible concerns.
Subparagraphs (a)(1)(B, C, D, and E) establish a review process
for determining the exceptions and applicability of (a)(1)(A) above.
However, subparagraph (E) explicitly states that the review process
cannot ameliorate the effects of other provisions of the DMCA (including the
crucial subsections (a)(2) and (b)(1) below).
Subsection (a)(2) prohibits making any utility or device
available to the public which is primarily intended to aid circumvention of
access controls as discussed in (a)(1) above.
This subsection is much worse than it seems. The exceptions and
review process of (a)(1)(B through E) do not apply to this
subsection, and even worse, this subsection took effect immediately!
In theory, consumers would still free to personally circumvent access
controls in ways which are found to be acceptable by the review process
mentioned above. But the outlawing of legal circumvention aids will likely
make circumvention of all but the most superficial access controls
impractically complex and tedious. This effectively nullifies the effects of
the review process and the exceptions in (a)(1), as it will be far
easier to prosecute the creators and distributors of circumvention aids than
it ever would have been to prosecute individual consumers who engage in
circumvention.
There are some indications that Congress thought this paragraph would be
used primarily to fight "black boxes" that some people use to gain unauthorized
access to cable programming. But the MPAA clearly had other ideas in mind;
not surprisingly, this is the paragraph being primarily used by the MPAA
in its lawsuits in New York and Connecticut.
Subsection (b)(1) prohibits making any utility or device available
to the public which is primarily intended to aid circumvention of technological
measures which protect copyright owner rights. The language is similar
to Subsection (a)(2), but the access controls here are limited to those
which are legitimately within the scope of sanctioned copyright legislation,
so this subsection, unlike those in Subsection (a) is probably
constitutional.
But this subsection is not without its problems. Even an access control
which is designed to protect a legitimate right of a copyright holder may
do so in an unnecessarily restrictive way, thereby trampling on the rights
and abilities of legitimate users of the copyrighted material. Moreover,
a measure (such as DVD Region Coding) which is claimed to reduce copyright
infringement may in actuality be relatively useless for its stated purpose
and instead be primarily intended to let the copyright holder gain an unfair
advantage over its customers.
In order to restrict legal protection to only those access controls which
are truly intended to reduce infringement, a party bringing a case under
this subsection should be required to prove all of the following:
that the access control is effective at protecting specific rights
of copyright holders against infringement;
that the infringements against which the access control is effective
are ongoing and have a significant detrimental economic effect on the copyright
holder; and
that the access control keeps restrictions on the fair use and rights of
legitimate users to the minimum practical level.
Subsections (c), (d), and (e) provide a number of exceptions and
clarifications of subsections (a) and (b). However, none of these exceptions
do anything to weaken the ban on circumvention aids. Hence, normal consumers
are still just as vulnerable to access controls which eliminate their
"fair use" abilities and which prevent them from exercising their rights such
as free speech.
Subsection (f) grants an exemption permitting reverse
engineering to subsections (a) and (b) above, for the extremely
narrow purpose of bypassing access controls in a legally obtained computer
program in order to study it in order to create a separate, interoperable
program. This is certainly a helpful provision, but it only applies to the
development of software, not to hardware, and not to the separate circumvention
aids which would be needed to restore lost "fair use" or free speech abilities
of normal consumers. It might be of some help in the particular case of
developing a DVD player for Linux, depending on the interpretation of a
number of terms and clauses.
Subsection (g) grants an exemption to subsection (a)
only, for the very narrowly defined case of encryption research.
The usefulness of this exception is virtually nil, as strong encryption is
not readily circumvented, and weaker, circumventable encryption is of little
practical or academic interest to most encryption researchers.
Subparagraph (g)(5) requires an already tardy "Report to congress"
to be issued on the effects of Subsection (g). As academically
interesting strong encryption is not generally used for copyright protection,
this report is likely to be fairly irrelevant unless it considers the many
other issues threatened by the rest of the DMCA.
Subsection (h) is a vague suggestion that it is legitimate to
implement access controls which prevent minors from accessing material on the
Internet. This does not appear to have any discernable legal effect.
Subsection (i) provides an exemption to subsection (a)(1)
only, in a very narrow case where the consumer's privacy is being
invaded by the access control and/or the copyrighted material.
$Id: dmca-guide.html,v 1.3 2000/03/27 20:27:41 niemi Exp $
(Source: http://www.tuxers.net/dmca/dmca-guide.html)
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