1. COPYRIGHT LAW 2003 Professor Fischer CLASS of April 7 2003: TECHNOLOGICAL PROTECTION MEASURES

2. The Digital Copyright Wars: “Shock and Awe” Tactics?? Last Thursday (4/3/2003), RIAA brought lawsuits in federal courts in NY, NJ and MI against 4 college students (1 at Princeton University, 2 at Rensselaer Polytechnic Institute, and 1 at Michigan Technological University) for copyright infringement for running file-sharing systems Schools were not named as defendants Complaints are available on Prof. Edward Felten’s “Freedom to Tinker” blog at: http://www.freedom- to-tinker.com/http://www.freedom- to-tinker.com/

3. Wrap-Up Point: Reverse Engineering and Fair Use The courts have repeatedly held that reverse engineering can be a fair use. See e.g. Sega v. Accolade, Sony v. Connectix.

4. Photocopying Cases American Geophysical Union v. Texaco 60 F. 3d 913 (2d Cir. 1995) Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6 th Cir. 1996) en banc How do market failure, productive, reasonable/customary use theories apply to these cases? Were they rightly decided?

5. Napster Is Napster a case about market failure? Were Napster’s activities productive? Is Napster consistent with Sony? With Texaco/MDS?

6. Technological Protections Some additional online resources are at: http://faculty.cua.edu/fischer/DMCA%20Re sources/DMCA%20resource%20list.htm http://faculty.cua.edu/fischer/DMCA%20Re sources/DMCA%20resource%20list.htm

7. Law: Protection for Technological Protections WIPO Copyright Treaty of 1996 (WCT) (Art. 11) see (41 members on 3/31/2003) at: http://www.wipo.org/treaties/ip/wct/index.html – entered into force 3/6/2002 http://www.wipo.org/treaties/ip/wct/index.html Digital Millennium Copyright Act of 1998 (DMCA) (implementing legislation for WCT) Why did the copyright industries demand additional legal protection for digital works?

8. Technical Protection Measures The technical protection provisions in the Digital Millennium Act of 1998 responded to of fears that digital format made copying easy and cheap and existing copyright law provided ineffective protections against piracy of copyrighted works. These provide special legal protections where a copyright owner uses technological self-help measures. What is technological self-help/technological protections for copyrighted works? What special protections does the DMCA now provided for technological protections?

9. DMCA s. 1201 2 kinds of protection. The DMCA distinguishes between Access Control Measures (stronger) Copy Control Measures (weaker) Note – not technology-specific

10. Access Controls: DMCA section 1201(a)(1): “No person shall circumvent a technological protection measure that effectively controls access to a [copyrighted] work…” This prohibits access to a work, not just access to a copy of the work. Thus this right broadens copyright owner’s rights. Does this result in overprotection?

11. DMCA 1201(a)(2): Anti- Trafficking Provisions – Access Prohibits manufacturing, importing, offering to public, provide, traffic in technology that is primarily designed to circumvent technological protection measures that effectively control access, has only limited commercially significant purposes except to circumvent technological protection measures, or is marketed by that person with knowledge for use in circumventing technological protections.

12. Anti-trafficking: Copy Controls – s. 1201(b)(1) Rather similar but bars manufacture or trafficking in technologies that are primarily designed or produced for the purpose of circumventing technological measures that effectively protects a right of the copyright owner [as opposed to access to the copyrighted work]

13. Penalties under DMCA What civil and criminal penalties are applicable to violations of the DMCA?

14. Penalties under DMCA What civil and criminal penalties are applicable to violations of the DMCA? S. 1203 (civil) – injunctive relief, damages (actual or statutory ($200 to $2500 for act of circumvention, device, product etc..; triple damages for repeated violation), costs, attorney’s fees). Reduction for innocent violation. S. 1204 (criminal) – first offense: fine up to $500,000 and/or imprisonment up to 5 years; subsequent offense: fine up to $1 million and/or imprisonment up to 10 years

15. Does Fair Use Survive the DMCA?

16. S. 1201(c) (1) provides: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” -also doesn’t affect vicarious or contributory liability or free speech rights

17. DMCA s. 1201 (d)-(j) Section 1201 (d)-(j) provides exceptions for, e.g., certain reverse engineering, law enforcement activities, certain library uses, certain encryption research, privacy protection, protection of minors, security testing of computer systems Also – rulemaking provision under s. 1201(a)(1)(B)-(D).

18. First Triennial Inquiry Are there particular “classes of works” as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses if they are prohibited from circumventing such technological measures On October 27, 2000, Library of Congress/Copyright Office issued a final rule identifying 2 classes of works exempt from access provisions

19. Exemptions following first Copyright Office triennial inquiry 1. Compilations of lists of web sites blocked by filtering software applications 2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness In future there may be a need for more exemptions

20. Second Triennial Inquiry – ongoing! Public hearings to be held starting this Friday April 11 2003 – see: http://www.copyright.gov/newsnet/2003/issue_19 1.html#hearings http://www.copyright.gov/newsnet/2003/issue_19 1.html#hearings Comments and reply comments have been posted on Copyright Office web site. Suggested exemptions include literary works protected by access controls that protect both copyrighted works and p.d. works; motion pictures on DVD, e-books, works broadcast on college radio stations, tools that previously existed but can be used as technological circumventions etc.