Controlling Access to Copyrighted Works Digital Millennium Copyright Act

Background  Enacted October 28 th, 1998  5 Titles 1)Implementation of two WIPO treaties 2)Limits ISP infringement liability 3)Exemption for computer maintenance 4)Six “miscellaneous” changes to title 17 5)Protection for vessel hull designs

Two Sections of Interest  Added by the First Title of the DMCA : 17 U.S.C. §1201(a)(1)(A) 17 U.S.C. §1201(a)(2)

Text of §1201(a)(1)(A): controls access  No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2- year period beginning on the date of the enactment of this chapter [enacted Oct. 28, 1998].

Text of §1201(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--

Text of §1201(a)(2): (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;

Text of §1201(a)(2): (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

Text of §1201(a)(2): (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

What Does This Mean?  It is only illegal to break a protection if copyrighted material is protected.  It is illegal to make available (even by knowingly linking to a website that makes available) technologies that are primarily designed, or marketed as, means for breaking protection schemes.

What Does This Mean?  It is illegal to break protection on even uncopyrightable material if doing so also breaks protection on a single shred of copyrighted material.  It is illegal to give someone a tool to break protection on wholly uncopyrighted material if that tool can also be used to break protections on copyrighted material.

Note the Exceptions: 1.The Librarian of Congress can periodically add exceptions deemed necessary. 2.If libraries or archives must break protection to evaluate desire to purchase, 3.If necessary to lawfully reverse engineer program to achieve interoperability, 4.For encryption research, with the advance notification of the research community,

Note the Exceptions: 5.For evaluation by the courts of a scheme for protecting minors from access to inappropriate material, 6.If the protection scheme collects or disseminates personal information, 7. Or if the owner of a system authorizes for security testing purpose.

Examples of Circumvention Technologies  DeCSS (Content Scramble System)  eBook Decryption Programs  Game Console Mod Chips  Black Magic Marker

Legal/Practical Concerns While there are many concerns about how the DMCA protects access control technologies, we will try to get to three:  Fair Use Problems  Anti-Trust/Anti-Competitive Problems  First Amendment Issues

Fair Use  “Fair Use Doctrine” is the major exception to the exclusive rights of copyright holders.  Functions to keep protections within the limits of Congress’ Constitutional mandate.  One question is: Should “fair use” include ideas of “best use” or “ease of use”?

Anti-Trust/Anti-Competition  While the DMCA specifically provides exemptions for reverse engineering, it is only for authorized reverse engineering.  What happens if content providers fail to authorize other platforms for use?

First Amendment  Knowing linking?  Access control of what is not copyrighted?  Could perfected access control lead to the demise of non-digital publication and seriously reduce the “right to hear” of the poor? The unsophisticated? Luddites?