1. THE RPAC ANNUAL CONFERENCE

2. OVERVIEW OF THE DMCA: ITS PROMISE AND PITFALLS Jeanne Hamburg

3. 3 THE DMCA: OVERVIEW Anti-circumvention provisions are an important (but not only) focus of the DMCA Prohibits hacking through measures used to control access to copyrighted works

4. 4 FAIR USE PERMITTED Does not outlaw circumvention of measures that prevent copying, only measures that prevent access Fair use is not a defense to unauthorized access but may be a defense to copying material lawfully accessed

5. 5 EXCEPTIONS TO DMCA Permits the circumvention of copyright protection devices ONLY to: –conduct encryption research –assess product interoperability –test computer security systems; and –perform computer maintenance or repair

6. 6 MORE EXCEPTIONS TO DMCA Also permits circumvention to: –protect minors: access on Internet –protect privacy: monitoring of on- line activities

7. 7 EXCEPTIONS TO DMCA Provides exemptions from anti- circumvention provisions for nonprofit libraries, archives and educational institutions

8. 8 COPYRIGHT LAW UNAFFECTED BY DMCA Anti-circumvention provisions do not affect: –the rights, remedies, limitations or defenses to copyright infringement, including fair use –vicarious or contributory copyright infringement - liability for aiding or assisting an infringement

9. 9 Universal City Studios v. Corley Corley published on his web site computer codes that stripped copy protection from DVDs Corley’s argument –DMCA violates his First Amendment rights to free speech –DMCA violates his right to access public domain information and exercise fair use Court upheld the DMCA against Corley Corley did not appeal to Supreme Court Emmanuel Goldstein aka Eric Corley

10. 10 SUBPOENAING THE IDENTITY OF DMCA VIOLATORS Recording Industry Association of America (“RIAA”) v. Charter Communications, Inc. –Eighth Circuit to decide whether it agrees with lower court that Charter must disclose user committing allegedly illegal file sharing of music recordings on P2P networks RIAA v. Verizon Internet Services, Inc. –D.C. Circuit said DMCA’s subpoena provision doesn’t reach “conduit” ISPs only ISPs that store infringing content

11. 11 REMEDIES UNDER THE DMCA Private civil lawsuit – –Criminal penalties: up to $500G in fines – –Five years in prison for 1st offense

12. 12 THEFT OF PASSWORDS IMS Inquiry Management Systems v. Berkshire Information Systems –first case to decide if theft of password violates DMCA (New York fed. district ct.) –in using someone else’s password to copy content from plaintiff’s competing web site, defendant did not violate DMCA. –defendant never “circumvented” any technological measure used to protect plaintiff’s on-line content

13. 13 THE DMCA PROTECTS PRINTER CARTRIDGES?? Lexmark International Inc. v. Static Control Components Inc. –Kentucky district court found unlawful printer cartridges’ circumvention of printer program controls. Program controls prevented printer from working with other cartridges –Some scholars and others question whether the DMCA was designed to protect someone’s control over the market for printer cartridges

14. 14 RULEMAKING UNDER THE DMCA Congress requires rulemaking hearings by the Copyright Office every three years Purpose of rulemaking procedure is to consider exemptions from DMCA Congress sought to balance protection of copyrighted works with exploitation of new technologies to engage in fair use of copyrighted materials important to education, scholarship and other new endeavors Marybeth Peters, Register of Copyrights, testifying at DMCA Hearings

15. 15 THE NEW EXEMPTIONS May circumvent access controls on filtering programs designed to block sites Purpose: to discover which sites are being blocked by the program and thereby determine if software is overly restrictive Goal: to achieve balance between free speech rights of blocked web site owners and adults’ interests in censoring Internet content children have access to Excludes web sites blocked by antivirus, anti-spam and similar software

16. 16 MORE NEW EXEMPTIONS Anti-circumvention measures may also be defeated to gain access to –Computer programs or video games distributed in a format that has become obsolete or which requires the original media or hardware as a condition of access –Works protected by obsolete “dongles” that cannot be repaired or replaced

17. 17 MORE NEW EXEMPTIONS Anti-circumvention measures may also be defeated to gain access to –Ebooks with access controls that prevent the enabling of the ebooks’ read-aloud function and screen-readers to render the text into a format which can be accessed by the blind and visually impaired

18. 18 MORE INFORMATION ABOUT THE DMCA Copyright Office web site: www.copyright.gov

19. 19 MORE INFORMATION ABOUT THE DMCA Copyright Office web site: www.copyright.gov

20. 20 Jeanne Hamburg, Esq. Partner, Norris McLaughlin & Marcus Specializing in: –all aspects of copyright and trademark law, –both in litigation and in the transactional area Norris McLaughlin & Marcus, P.A. 220 East 42 nd Street 30 th Floor New York, NY 10017 (212) 808-0700 jhamburg@nmmlaw.com www.nmmlaw.com