The Digital Millennium Copyright Act Questions and Critical Observations Max Vilimpoc Washington Internship for Students of Engineering

Presentation Overview Description of the DMCA Description of the DMCA Problems Problems Test Case Histories Test Case Histories Options / Solutions Options / Solutions Further Concerns Further Concerns Conclusion Conclusion

What is the DMCA? Revision of Title 17, U.S.C. Copyright Law Revision of Title 17, U.S.C. Copyright Law Passed in 1998 by 105 th Congress Passed in 1998 by 105 th Congress Aligns our law with global norms Aligns our law with global norms WIPO Copyright Treaty WIPO Copyright Treaty WIPO Performances and Phonograms Treaty WIPO Performances and Phonograms Treaty Broken into Five Titles Broken into Five Titles Focus on Titles I and II Focus on Titles I and II Title I: Technology-based Access Control Measures Title I: Technology-based Access Control Measures Title II: Safe Harbor Provisions Title II: Safe Harbor Provisions

Title I Appended Chapter 12 to copyright law Appended Chapter 12 to copyright law §1201 renders circumvention of technological access-control mechanisms illegal §1201 renders circumvention of technological access-control mechanisms illegal §1202 defines legal space for Digital Rights Management §1202 defines legal space for Digital Rights Management §1203 defines civil penalties §1203 defines civil penalties §1204 defines criminal penalties §1204 defines criminal penalties

Title II Added §512 to copyright law Added §512 to copyright law Limits liability of Internet Service Providers (ISPs) in copyright infringement cases Limits liability of Internet Service Providers (ISPs) in copyright infringement cases Added conditions by which ISPs can claim innocence Added conditions by which ISPs can claim innocence No prior knowledge / no knowledge during No prior knowledge / no knowledge during Establishes procedure for indemnification by ISPs Establishes procedure for indemnification by ISPs Notice and Takedown Notice and Takedown

Problems DMCA may be too broad and too vague DMCA may be too broad and too vague Empirical effects may now be examined Empirical effects may now be examined First Amendment Issues First Amendment Issues Fifth and Fourteenth Amendment Issues Fifth and Fourteenth Amendment Issues due process of law due process of law National Sovereignty Issues National Sovereignty Issues

First Amendment Issues Chilling Effects on Speech Chilling Effects on Speech Legal Tests: Legal Tests: Motion Picture Association of America v Magazine Motion Picture Association of America v Magazine United States v. Sklyarov United States v. Sklyarov Secure Digital Music Initiative v. Felten Secure Digital Music Initiative v. Felten

Motion Picture Association of America v Magazine 2600 Magazine distributes DeCSS 2600 Magazine distributes DeCSS DeCSS used by DVD owners to play encrypted DVDs on Linux OS DeCSS used by DVD owners to play encrypted DVDs on Linux OS Reverse engineering necessary to create DeCSS Reverse engineering necessary to create DeCSS Under §1201 of DMCA, circumvention of encryption is illegal, even for fair use purposes Under §1201 of DMCA, circumvention of encryption is illegal, even for fair use purposes

United States v. Sklyarov Dmitry Sklyarov writes a program capable of breaking encryption on Adobe eBook file format Dmitry Sklyarov writes a program capable of breaking encryption on Adobe eBook file format eBook format can restrict usage / fair use eBook format can restrict usage / fair use Printing rights, Copying text, Backup Printing rights, Copying text, Backup Advanced eBook Processor used to restore fair use rights to eBook consumers Advanced eBook Processor used to restore fair use rights to eBook consumers

Secure Digital Music Initiative v. Felten SDMI challenges computer scientists to break proposed digital watermark technologies SDMI challenges computer scientists to break proposed digital watermark technologies Professor Felten succeeds in doing so Professor Felten succeeds in doing so Feltens team decides to present research results at an academic conference Feltens team decides to present research results at an academic conference SDMI threatens Felten under §1201 of the DMCA (distribution of circumvention knowledge) SDMI threatens Felten under §1201 of the DMCA (distribution of circumvention knowledge) Professor Felten does not present at the conference Professor Felten does not present at the conference

Stakeholders MPAA MPAA Electronic Publishing Industry Electronic Publishing Industry Recording Industry Association of America Recording Industry Association of America The Scientist / Researcher The Scientist / Researcher The Consumer The Consumer

Fifth and Fourteenth Amendment Issues Due Process of Law Due Process of Law §1201 introduces an initial presumption of guilt on the alleged §1201 introduces an initial presumption of guilt on the alleged Any and all acts of technological access- control circumvention are prohibited regardless of the reason Any and all acts of technological access- control circumvention are prohibited regardless of the reason What about fair use? What about fair use? Burden of disproving guilt placed on the alleged -- guilty until proven innocent Burden of disproving guilt placed on the alleged -- guilty until proven innocent

Scientific Research Stifled Researching and publishing knowledge that might be used to Researching and publishing knowledge that might be used to circumvent an access-control mechanism circumvent an access-control mechanism build a circumvention device build a circumvention device exposes researcher to potential liability No statute of limitations No statute of limitations Contributory Infringement Contributory Infringement

§512 Notice and Takedown Potential for Abuse Potential for Abuse ISP may prefer to limit liability vs. protect freedom of speech ISP may prefer to limit liability vs. protect freedom of speech Examples: Examples: Barbie Critique website Barbie Critique website Church of Scientology critic: xenu.net Church of Scientology critic: xenu.net

National Sovereignty Issues United States v. Sklyarov United States v. Sklyarov United States v. ElcomSoft Co. Ltd. United States v. ElcomSoft Co. Ltd. Sklyarov arrested after DefCon 9 computer security conference Sklyarov arrested after DefCon 9 computer security conference Sklyarov and his employer ElcomSoft are Russian Sklyarov and his employer ElcomSoft are Russian Do the provisions of the DMCA apply to them? Do the provisions of the DMCA apply to them?

National Sovereignty Issues Are national copyright laws enforceable over citizens of other nations? Are national copyright laws enforceable over citizens of other nations? Position of the Berne Convention on Literary and Artistic Works Position of the Berne Convention on Literary and Artistic Works Position of the WIPO Copyright Treaty Position of the WIPO Copyright Treaty

How does this affect me? Fair use rights which we take for granted are being eroded. Fair use rights which we take for granted are being eroded. The acts of research, criticism, print, and other First Amendment rights are being threatened. The acts of research, criticism, print, and other First Amendment rights are being threatened. As a consumer, less and less choice will be available both in terms of goods and our ability to use those goods. As a consumer, less and less choice will be available both in terms of goods and our ability to use those goods.

Options / Solutions Current Situation puts fair use on the defense, e.g. the burden of proof is on the potential infringer to show substantial non- infringing uses of software or research, etc. Current Situation puts fair use on the defense, e.g. the burden of proof is on the potential infringer to show substantial non- infringing uses of software or research, etc. Solutions Solutions Remove anti-circumvention clause Remove anti-circumvention clause Rely on established content infringement laws Rely on established content infringement laws Amend clause to allow for fair use Amend clause to allow for fair use Burden of proof shifted to copyright holder to demonstrate infringement Burden of proof shifted to copyright holder to demonstrate infringement

Further Concerns Does protection of weak encryption, watermarking, and other digital rights management systems make sense? Does protection of weak encryption, watermarking, and other digital rights management systems make sense? What is the effect on the market if flawed digital security systems are sold to content providers? What is the effect on the market if flawed digital security systems are sold to content providers? Should research hinge on the permission of corporate interests? Should research hinge on the permission of corporate interests?

Conclusions The DMCA needs amendment to guarantee: The DMCA needs amendment to guarantee: Fair use rights of consumers Fair use rights of consumers Rights of scientists to publish discoveries without reservation or regard for corporate interests Rights of scientists to publish discoveries without reservation or regard for corporate interests

Questions?