GPSolo Magazine - January/February 2006

Chasing Virtual Pirates with the Digital Millennium Copyright Act

The Constitution of the United States empowers Congress to “secure the writings of authors for a limited time” (Art. I, Sec. 8). This mandate undergirds Title 17 of the United States Code, known as the Copyright Act. The general concept of authorship has remained much the same, but the interpretation of “writings” has largely expanded to embrace all sorts of creative works, such as architectural design, computer software, and sound recordings.

The “securing” part gets even more expansive. Congress has designed a collection of protections that authors enjoy in regards to their creative works. For example, the author (i.e., the owner of the copyright) retains the exclusive right to reproduce his or her work in copies or phonorecords (17 U.S.C. §106(1)).

It naturally follows that authors also enjoy the exclusive right to distribute, sell, rent, and license those copies of their work (17 U.S.C. §106(2)). When it comes to literary, musical, and dramatic works, authors have the exclusive right to perform or display the copyrighted works publicly (17 U.S.C. §106(4)-(5)).

Lastly, when it comes to sound recordings, authors enjoy the exclusive right to “perform” their copyrighted work publicly by means of a “digital audio transmission” (17 U.S.C. §106(6)).

Congress “secures” these exclusive rights to authors for a specified period of time—which translates into money. The logic presumes that when authors are guaranteed the rights listed above, they will more freely enlist their creativity to produce brilliant works that benefit society as a whole. Authors receive compensation when the members of the public purchase their creations.

Digitize Me

The concepts above are starkly outlined in Title 17 of the U.S. Code. They have endured for many years and have been successful in establishing parameters for the protection of copyrights. Title 17 is seamlessly applicable to all sorts of physical, tangible items such as books, CDs, and oil paintings. But Title 17 starts to show signs of old age when it is skewed and applied to the new world order of digital music, Internet servers, and downloadable movies—works that potentially never experience a tangible existence.

Digital media often blaze new trails and toss aside the stodgy, old notions of documents, books, music, and movies. This process is illustrated when you compare copies that are made in both worlds. For example, in the analog, physical world, when you make a copy of an audio cassette or VHS tape, and then make a copy of that copy and so on, each one is worse than the last. Each copy degrades a little more until the end result becomes so distorted that it’s no longer palatable.

A digital music or movie file, however, can theoretically be copied ad infinitum without ever sacrificing the quality found in the original. Therein lies the sleeping beast for all copyright owners. In the analog world, there is a functional curb on unlimited copying because regular consumers do not have the ability to manufacture numerous pristine copies. But in today’s world of personal computers, CD/DVD burners, and portable MP3 players, the public can make as many perfect copies as they desire. Why should consumers purchase a new music CD for $18 when they can make a perfect copy of their friend’s CD for free?

Many progressive copyright owners became aware of this digital “threat” some time ago and realized that they might have to be proactive against rampant digital copying before the government acted on their behalf. For their solution, they turned to technology itself and created digital locks for their digital media.

A simple example of such a protective measure is a registration code for computer software. To enjoy the full benefits of a computer program, you must purchase the secret code.

More recently, digital locks have been applied to music CDs and movie DVDs. On DVDs, for example, movie companies have integrated a protective measure against copying. DVDs play just fine in regular DVD players, but if you place the DVD in your computer and try to copy the files, nothing would work.

This copy-protective measure worked well until the day someone discovered how to pick the lock. By downloading a few lines of code, any computer user could completely circumvent the digital locks on a DVD and copy the movie into any media format desired.

It’s Fun to Play with the DMCA

In the above example, the movie studios as copyright owners are free to bring suit against every computer user who unlawfully picks the digital lock on protected content. But that obviously becomes expensive and futile very fast.

That’s when you call in the firepower of the U.S. government. The Digital Millennium Copyright Act (DMCA) was singed into law by President Clinton on October 28, 1998. Although the DMCA contains several significant provisions, the most compelling is the prohibition against circumventing “a technological measure that effectively controls access to a protected work” under the Copyright Act (17 U.S.C. §1201(a)).

The DMCA defines circumventing a technological measure as descrambling a scrambled work, decrypting an encrypted work, or otherwise avoiding, bypassing, removing, deactivating, or impairing a technological measure without the authority of the copyright owner (17 U.S.C. §1201(a)(3)(A)).

In essence, the DMCA was envisioned to comprehensively protect copyright owners of digital media when more dubious folks attempted to “pick” or circumvent the digital locks and freely distribute their copyrighted materials.

This concept was not original to the DMCA. In fact, the DMCA was passed partially in response to the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty, which demanded WIPO members to “provide adequate legal protection and effective legal remedies against the circumvention of effective technology measures that are used by authors” (Article 11). The United States had to adopt such a provision and recognize protection for certain works from other countries, in order that those countries would reciprocate.

Title 1 of the five titles in the DMCA houses all of the provisions discussed so far and is aptly titled the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998.”

Section 103 of this first title adds a whole new chapter to the Copyright Act, outlining the anti-circumvention provisions. It is interesting to note that the DMCA does not directly regulate the reproduction and distribution of a copyrighted work, which is the traditional focus of the Copyright Act. Instead, the DMCA focuses on the technological measures that are used to control access to copyrighted works.

This concept played out in the recent Sony BMG debacle, when the company released music CDs that strictly limited how the music was played on PCs. Unfortunately, the CDs did this by installing a dangerous “back-door” security hole (commonly used by hackers) onto the PC when the disc was first played on the computer. These actions were protected under the DMCA because the software prohibited access to digital files. Customers who attempted to repair the security hole left by the music CDs became liable under the DMCA because they were circumventing a technological measure intended to secure a protected work.

A second interesting point is that the DMCA specifically prohibits the circumvention of a technological measure that prevents unauthorized access to a copyrighted work, but it does not prohibit the circumvention of technological measure that prevents unauthorized copying of a copyrighted work. This oversight was intentional because there may be scenarios where copies could be made in accordance with the important Fair Use doctrine of the Copyright Act. In other words, there have always been exceptions in copyright law for educational institutions and the like.

Not only does Section 103 of the DMCA prohibit the circumvention of technological measures that control access to a digital work, it also bans the manufacture and sale of any technology that has the primary purpose of circumventing digital copyright protections.

Do U C My DeCSS?

One of the first real tests of the DMCA came in Universal City Studios, Inc. v. Reimerdes (2001 U.S. App LEXIS 25330). Movie studios such as Universal City had employed a technology called the “Content Scrambling System” (CSS) that encoded a movie on a DVD so that it could only be played on licensed, legitimate DVD machines or software.

Some enterprising computer users, citing that there were no licensed DVD players for certain systems such as the Linux operating system, decoded the CSS so they could watch their purchased movies on their computers. They made their findings public by providing their “DeCSS” utility on the Internet to others so they, too, could watch DVDs on Linux-based computers.

When Universal City Studios realized DeCSS could be used to circumvent their CSS protection, and thereby allow consumers to create perfect, unlimited copies of movies, they brought suit under the DMCA. Instead of going after the author of the DeCSS utility, however, Universal City Studios brought suit against a website that was posting the DeCSS code, claiming that this website provided a technology for circumventing a copyright protection.

The website countered with two main defenses regarding fair use under the Copyright Act and free speech under the First Amendment, but the Second Circuit Court of Appeals in New York upheld a lower court’s ruling that DeCSS was an unlawful circumvention device under the DMCA and prohibited the website from posting or linking to any form of the DeCSS code. Of course, by that time thousands of websites had posted the code, and you could even purchase a T-shirt that had the code printed on the front.

Librarians, Limitations, and Exceptions

Congress provided a fail-safe mechanism in the DMCA that authorized the Librarian of Congress to regularly review the effects of the DMCA on the marketplace and offer additional suggestions for exceptions and protections. The Librarian of Congress, based on the recommendation of the Register of Copyrights, offered some additional exemptions for the DMCA in October 2003.

Apart from the suggestions from the Librarian of Congress, the DMCA inherently contains exceptions for certain parties from civil and criminal liability. Chief among these is the explicit exception for law enforcement, intelligence, and other governmental activities (17 U.S.C. §1201(e)).

Title 2 of the DMCA adds another new section to the U.S. Copyright Act that deals with limitations on liability for copyright infringement by Internet service providers (e.g., AOL). Those folks are defined as “entit[ies] offering the transmission, routing, or providing of connections for digital online communications” (17 U.S.C. §512(k)(1)(A)).

The DMCA does not allow Internet service providers to be held liable for copyright infringement if information passes through their systems per an automatic process. Furthermore, an Internet service provider cannot be held liable for copyright infringement if the provider is simply storing or temporarily caching infringing data.

Lastly, an Internet service provider cannot be held liable for copyright infringement if it merely links or refers to a website or other location that contains infringing material. The defendant above in Universal City Studios, Inc. v. Reimerdes was a website and was not considered an Internet service provider.

Walking the DMCA Plank

The remaining three titles of the DMCA deal with a collection of various issues slightly removed from the focus of anti-circumvention measures. Title 3 is entitled “Computer Maintenance Competition Assurance Act” and basically exempts copies of computer software from copyright infringement when they are made in the process of maintaining or repairing a computer.

Title 4 is entitled “Miscellaneous Provisions” and deals with a sundry list of minor topics and issues. Title 5 is a quirky little amendment to the Copyright Act that creates a new form of protection for the design of boat vessel hulls.

The DMCA was drafted to respond to the perils of copyright protection in a digital world, but it is constantly assailed by a lively gang of critics who label the act as ineffective and useless. Fundamentally, they attack the DMCA’s focus on technological protective measures rather than the act of copying. Once a digital lock is picked and the unlocked media file is freely available, a statute protecting the lock becomes useless.

Regardless of how you might argue a case under the DMCA, the simple fact is that it is one of the most important pieces of legislation to address digital technology at the beginning of the new millennium. Whether or not it has been effective is a hot topic of debate, and it will continue to divide profit-minded media providers from consumers looking for a free ride. It appears that technology can always stay several steps ahead of government action, so legislation like the DMCA may find itself impractical before it can even be signed into law.

Probably the one thing that everyone can agree on is that legislation such as the DMCA keeps the honest people honest. There will always be those mischievous, shady characters who live to “hack” and “crack” legitimate measures intended to keep them out, but those of us who are honest folk will continue to support the market for good music and engrossing movies, and we will pay a fair price.

 

Brett Burney is the legal practice support coordinator at Thompson Hine, LLP, in Cleveland, Ohio. You can e-mail him at brett.burney@thompsonhine.com.

 

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