International Intellectual Property Prof. Manheim Spring, 2007 Anti-Circumvention Copyright © 2007

Spring, 2007IIP2 Problem 2-23  Does Zapruder have © in his film clip?  “A cinematographic work shall be protected as an original work” [Berne 14bis]  Motion pictures protected [17 USC §102(a)(6)]  Can Hewitt show the film in class?  Authors..shall have the exclusive rights of …  communication to the public of the performance of their works [Berne 11(1)(ii)]  public performance [Berne 14(1)(ii)]  Berne leaves definitions to national legislation

Spring, 2007IIP3 Problem 2-23  Can Hewitt show the film in class?  Public performance under US law  To perform or display a work “publicly” means … to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered [§106(4)]  But, “performance or display of a work by instruc- tors or pupils in the course of face-to-face teach- ing activities of a nonprofit educational institu- tion, in a classroom” is not infringement [§110(1)]

Spring, 2007IIP4 Problem 2-23  Can H reproduce part of the film for class?  Berne Art. 9  (1) Authors … shall have the exclusive right of authorizing the reproduction of [their] works …  (2) Union [members may] permit the reproduction of such works in certain special cases …  Berne Art. 10  (2) Union members may “permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching  17 USC §107 - “fair use” exception

Spring, 2007IIP5 Problem 2-23  What if Zapruder film is on a DVD w. DRM?  WIPO Copyright Treaty Art. 11  Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exer- cise of their rights under this Treaty or Berne Conv.  WIPOCT implemented in US by DMCA (1998)  Implemented in EU by Directive 2001/29/EC of the European Parliament and of the Council

Spring, 2007IIP6 Digital vs. Analog Media AnalogDigital Storage is inefficientEfficient storage Cannot compress without degrading content Compresses easily - some w/o degradation (“lossless” vs “lossy”) Copying causes degradation (each generation worse) Each copy is the same as the original (unlimited generations) Picture/sound quality varies with signal strength Signal is 'all or nothing' (cliff effect) Subject to noise and interference Free from ghosting and noise Format transmitted is the only format that can be displayed Digital information can be reformatted to fit application

Spring, 2007IIP7 Digital vs. Analog Media CriterionAnalogDigital Duplication CostsHigh media cost; inefficient Low media cost; efficient Duplication QualityDegradedExact copies DistributionPhysical copies; slow Electronic; instantaneous Retail priceHighVery high After-sale controlInfeasibleFeasible Infringement IncentiveLow High

Spring, 2007IIP8 The Problem  Digital media/transmission is superior  Also MUCH easier to copy  Low incentive to pirate analog media  High incentive to pirate digital media  Also MUCH easier to prevent copying  Same playback device/processor (e.g., DVD player) that reads digital content can also read/implement digital access controls

Spring, 2007IIP9 Digital Rights Management  From Content owners’ perspective:  All unconsented uses of IP = theft  Copyrighted works are not like other property!  DRM  Digital – specific to digital resources, such as electronic documents and media  Rights – concerned with ownership and the terms and conditions of use  Management – concerned with creating mechanisms to regulate (downstream) use

Spring, 2007IIP10 Aspects of DRM  Expression  description of the resource, ownership of the resource, and the terms and conditions of use  Authentication  verification that the person using the resource has the right to use the resource  Protection  means, such as encryption, to ensure only authorized users have access or other uses  Access restrictions  Copying restrictions

Spring, 2007IIP11 Rise of DRM  Devices must obey CR owners’ commands  No tinkering or unauthorized use  Crypto, watermarks applied to digital works  DRM allows control of downstream use  Serves “copyright maximalism”  Examples of DRM  Installation of software  Region-coding for DVDs  Broadcast Flag  Streaming video

Spring, 2007IIP12 Protecting DRM  Technological Protection Measures (TPMs)  Usually encryption (plus decryption “keys”)  Types of Protection  Access – viewing, using  Post-Access  Copying, altering  Distributing  Circumventing DRM  By decrypting (“hacking”) TPM  Gives access to underlying © content

Spring, 2007IIP13 WIPO Copyright Treaty (1996)  A “special agreement” under Berne Art. 20Art. 20  Art. 11: members shall provide “adequate legal protection” for TPMs that protect Berne rights Art. 11  Art. 12: members shall provide legal remedies for unauthorized alteration of DRM information Art. 12  What else does WIPOCT do?  Protects computer programs as “literary works”  Exclusive rights include rental  Amends Berne Art. 7(4) on photographic worksBerne Art. 7(4)

Spring, 2007IIP14 Directive 2001/29/EC  Protection Of Technological Measures And Rights-Management Information [Art. 6] 1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures … 2. Member States shall provide adequate legal protection against [trafficking] or possession for commercial purposes of [circumvention] devices … 4. Member States shall … ensure that rightholders make available … the means of benefiting from [any] exception or limitation … where that beneficiary has legal access to the protected work or subject-matter

Spring, 2007IIP15 Digital Millennium Copyright Act  DMCA, 17 USC § USC §1201  (a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.  (a)(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-  (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;  (b)(1) No person shall … traffic in any technology that  (A) [circumvent TPMs] that effectively protects a right of a copyright owner under this title a) access controls b) copy contrrols 1) circumvention 2) trafficing trafficing only [usually post-access]

Spring, 2007IIP16 Universal Studios v. Corley (2001)  CSS (Content Scramble System)  DRM on Digital Versatile (Video) Disks (DVDs)  Created in 1996 by  Protects against unauthorized viewing/copying  Uses weak 40-bit algorithm (2 40 keys = 100 billion bytes)  Fast computer using “brute force” can crack in 4 seconds  DeCSS  CSS “hacked” by Jon Johansen (Norway, 1999)  “reverse engineered” a licensed DVD player  so Linux system (not licensed) can play DVDs w. CSS  Published by Corley on and licensed out

Spring, 2007IIP17

Spring, 2007IIP18 Universal Studios v. Corley (2001)  Constitutional claims on appeal:  DMCA does not contain “fair use” exception  Even though Copyright statute does (17 USC §107)17 USC §107  DMCA isn’t concerned with content (§1201(c)(1))§1201(c)(1)  That means it violates DMCA to circumvent DRM even where necessary to exercise right of fair use  Is “fair use” constitutionally required?  Maybe, but not necessary to decide  Appellants lack standing  Even if it would be a defense to circumvention, it is no defense to trafficing, nor to copying (vs. access)  Does court reject theory of digital fair use?

Spring, 2007IIP19 Questions on DMCA 1. Does DMCA go beyond WIPOCT?  WIPOCT 11 requires anti-circumvention controls WIPOCT 11  DMCA also includes anti-trafficking controls  WIPOCT 10 allows exceptions in special cases WIPOCT 10  that do not conflict with a normal exploitation of the work  e.g., fair use exception  DMCA does not have a fair use exception

Spring, 2007IIP20 Questions on DMCA 2. Relationship between DMCA and ©  Applies only to works protected by ©  Circumventing TPM for public domain is ok  DMCA is legal counterpart to TPM, which is self-help (via technical protection) 2. Why Anti-Circumvention Protection for ©  Responds to scale of digital infringement  Focus on enabler as well as infringer

Spring, 2007IIP21 Fair Use under WIPO/DMCA  WIPO  Arts. 10 (incl. agreed statement) & 11 permit exceptions to © rights embodied in nat’l law  DMCA  Applies to “works protected under this title”  A work is protected even when fair use allowed  Copyright office interpretation  No exception for unauthorized access  Fair Use exception for post-access circumvention

Spring, 2007IIP22 DeCSS as Culture  Source Code Source Code  DeCSS as Art  Poster Poster  Animated (flash required) Animated  DeCSS song DeCSS song  Folk Folk  Country Country  Haiku Haiku  Reading Reading  Clothing  Other More OtherMore

Spring, 2007IIP23 WIPODMCA Access Circumvention Prohibited (Art. 11) Prohibited §1201(a)(1) Trafficing in Access Circumv. Not ProhibitedProhibited §1201(a)(2) Post-Access Circumvention Prohibited (Art. 11) Not Prohibited Trafficing in Post- Access Circumv. Not-ProhibitedProhibited §1201(b)(1) DRM MisuseProhibited (Art. 12) Prohibited §1202 Exceptions under nat’l law (fair use) Permitted (Arts. 10, 11) Access Exempt: no Copy Exempt: yes

Spring, 2007IIP24 DeCSS in Norway  Økokrim v. Jon Johansen (2003)  Decision Decision  Decision in English Decision in English  Holding  Dual-use technology not infringing  at least where lawful intent (enable compatability)  Why not same result in Universal v. Corley ?  DMCA strikes balance in favor of © holders  Sony safe harbor (“substantial non-infringing use”)

Spring, 2007IIP25 DRM Policy Issues  DRM policy issues  Who controls technology and innovation?  Who controls speech?  Who controls culture?  DRM upsets CR bargain  And DMCA anti-circumvention rules  Can’t break TPM even if law permits use  Like using DeCSS to play DVD on Linux  Can’t disseminate technology to others