By Robin D. Gross
February 200
Published by The Cyber-Tech Litigation Report
On October 28, 2000 the controversial Digital Millennium Copyright Act (DMCA) took full effect, criminalizing the act of circumvention of a technological protection system put in place by a copyright holder -- even if one has a fair use right to access that information. Maximum penalties allow up to 10 years in prison or $1 million fine for willful violators of the new law. This dramatic change in copyright law should serve as a wake-up call for all Americans that their First Amendment rights are rapidly eroding in the digital realm. Ignited by the copyright industry, this legislative trend is spreading through national legislative bodies around the world like wild fire.
The DMCA outlawed making or providing tools that could be used to circumvent technological protection systems when the legislation was first enacted in 1998. Another provision of the DMCA banned the act of circumvention, although it did not take effect until two-years later. Congress directed the Register of Copyrights to conduct a rulemaking procedure during the interim and recommend to the Librarian of Congress classes of works that should be exempted from the general ban against circumvention because people were likely to be adversely affected in their ability to make lawful uses of works.
During the course of its proceeding the Copyright Office received an incredible 392 written comments from the public and heard testimony from 34 witnesses on the subject. Despite the repeated requests for exemptions from those who need to circumvent in order to exercise their legal fair use rights such as library, educational, and civil liberties groups, the Librarian’s final rule only exempted two narrow circumstances in which one will be allowed to circumvent. This leaves the vast majority of the public’s fears unaddressed with little choice but to seek help from Congress or the courts.
In making its determination, Congress directed the Register to consult with the Assistant Secretary for Communications and Information in the Department of Commerce. The Assistant Secretary recommended an exemption analogous to fair use based upon a factual examination of the uses to which works are put. In a letter to the Register presenting his views, the Assistant Secretary stated that his principal concern is to ensure that the Librarian will preserve fair use principles in this new digital age. He echoed the fears of the Commerce Committee that a legal framework may be developing that would "inexorably create a pay-per-use society." He stated that the "right" to prohibit circumvention should be qualified in order to maintain a balance between the interests of content creators and information users, by means of carefully drawn exemptions. Despite the Assistant Secretary’s recommendation for a use-based exemption, the Copyright Office ultimately rejected it as "beyond the scope of the Librarian’s authority."
Librarian’s Two Narrow Exemptions Ignore Majority of Public’s ConcernsOn the recommendation of the Register of Copyrights, the Librarian of Congress James Billington announced two narrow classes of works exempted from the DMCA’s prohibition on circumvention of technological measures that control access to copyrighted works.
1. Compilations consisting of lists of Web sites blocked by filtering software applications.
The first exemption, while narrow in scope, addresses one real and specific danger created by the DMCA’s blanket ban on circumvention: the criminalization of decrypting lists of Web sites blocked by content filtering software. The ruling stated that the reproduction or display of the lists for the purpose of criticizing them could constitute fair use. Citing the controversial injunction issued in Microsystems Software, Inc. v. Scandinavia Online AB, No. 00-1503 (1st Cir. Sept. 27, 2000) ("Cyber Patrol case") the Librarian recognized the public’s legitimate interest in accessing the lists of Web sites in order to critique, comment and criticize them. According to the Librarian:
"A persuasive case was made that the existence of access control measures has had an adverse effect on criticism and comment, and most likely news reporting, and that the prohibition on circumvention of access control measures will have an adverse effect ... on noninfringing users since persons who wish to criticize and comment on them cannot ascertain which sites are contained in the lists unless they circumvent."
The public has a significant First Amendment interest in exploring the scope and reliability of content filtering software. The Librarian should be commended for crafting an exemption that addresses this particular danger caused by the DMCA. Unfortunately, this exemption only covers a tiny fraction of the public’s needs to circumvent while the vast majority of legitimate fair uses remain criminalized.
2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.
The Librarian recognized the adverse impact from the DMCA’s general ban on circumvention "in cases where legitimate users are unable to access works because of damaged, malfunctioning, or obsolete access controls." Explaining the rationale for the second exemption, the Librarian stated, "the access controls are not furthering the purpose of protecting the work from unauthorized users. Rather, they are preventing authorized users from getting the access to which they are entitled." This prevents non-infringing uses that could otherwise be made. The Librarian found "this situation is particularly troubling in the context of libraries and educational institutions."
The Librarian’s second exemption is intended to exempt users of software, databases, and other literary works in digital formats who are prevented from accessing such works because the access control protections "are not functioning in the way that they were intended." A ‘dongle’ or hardware lock attached to a computer that prevents unauthorized access to software is an example of the type of access control that can be circumvented under the ruling. Access controls may only be considered obsolete where a machine necessary to perceive a work is no longer made or commercial available.
While attempting to correct failures in the statute’s broad prohibition, this final exemption is only applicable in a few narrow circumstances and ultimately falls far short of adequately protecting the public’s interests. The Librarian’s impotence in issuing exemptions is particularly disturbing since he declared that this exemption is "probably the outer limits of a permissible definition of ‘class’."
Librarian Asks Congress for Clarification on DVDsThe Librarian rejected all other requests for exemptions from the public seeking relief from the DMCA’s harsh penalties. Most notably absent was an exemption for DVDs, which would have allowed Linux users (among others) to view their DVDs on non-standard machines without fear of criminal prosecution. According to the Librarian, "More comments and testimony were submitted on the subject of motion pictures on DVDs and the technological measures employed on DVDs, primarily Content Scrambling System (CSS), than on any other subject in this rulemaking."
During the course of the proceeding, the Electronic Frontier Foundation submitted official Comments (initial, reply, post-hearing) and testified at the public hearings requesting that the Librarian exempt DVD movies protected by CSS from the DMCA’s circumvention ban. Even though Congress banned circumventing access controls, it did not intend to prevent circumvention for legal use. DVDs protected by CSS bypass Congress’ intent by merging the access and use control together into one technological protection system that prevents fair use altogether. To its credit, the Librarian recognized the "significant concern" presented by the "merger of access and use controls" that CSS represents:
"The merger of technological measures that protect access and copying does not appear to have been anticipated by Congress. Congress did create a distinction between the conduct of circumvention of access controls and the conduct of circumvention of use controls by prohibiting the former while permitting the latter, but neither the language of section 1201 nor the legislative history addresses the possibility of access controls that also restrict use. It is unclear how a court might address this issue. It would be helpful if Congress were to clarify its intent, since the implementation of merged technological measures arguably would undermine Congress's decision to offer disparate treatment for access controls and use controls in section 1201."
Despite this recognition of a significant problem, the Librarian meagerly tossed the ball back to Congress to fix the mess it created by the sloppy statute. Although charged with primarily ensuring the public’s fair use rights continue in the digital realm, the Librarian acquiesced to the demands of the copyright industry who repeatedly threatened that it would not ‘create’ if its conditions for control over the architecture were not met and who’s only objective is to maximize revenue from creative expression by creating a pay-per-use society. Consequently, the DMCA has deformed copyright law to only advance the narrow interests of a few corporations at the expense of the broader public good.
The Librarian mis-characterized the lack of an open source Linux DVD player in the marketplace as a "problem of preference and inconvenience" not warranting an exemption. The public is under no legal obligation to view DVDs only on machines pre-approved by the movie studios or according to the viewing restrictions of a CSS license. Moreover, the entire open source development model, which is currently fueling the bulk of technological innovation, is dependent upon having the ability to adapt software to customize for one’s own specific needs. In dismissing the DVD exemption, the Librarian stated: "While it does not appear that Congress anticipated that persons who legitimately acquired copies of works should be denied the ability to access these works, there is no unqualified right to access works on any particular machine or device of the user's choosing."
What the Librarian fails to recognize, however, is the distinction between an "unqualified right" to access a work on another machine, and the DMCA’s criminalization of the act of building a new device that allows access to a work that one legally owns. "That which is not prohibited is generally allowed." Consequently, the public will have fewer rights in the digital realm than it enjoyed in traditional space to use and access information. Additionally, the statute paves the way for stifling innovation, restricting competition, and fostering a breeding ground for monopolistic business practices in the market for DVD players and other devices.
One of most popular reasons cited as needing to circumvent DVDs was in order to bypass the restrictive region-coding scheme incorporated in CSS where DVDs purchased in one part of the world will not play on DVD players manufactured in another part of the world. Despite the extraordinary public outcry, the Librarian dismissed this concern as merely an "inconvenience" not warranting an exemption. Astonishingly, the fact that the region coding restrictions correlate with the movie studios’ contractual divisions of the world was cited as a "legitimate purpose" served by legally enforcing the restrictions. The degree of deference given to the business plans of a select few multinational corporations when writing legislation to govern how information may be accessed in a democracy is frightening.
Congress and Courts Must Intercede to Preserve Fair use and Free ExpressionThe implementation of technological protections that deny society its due in the copyright right bargain combined with the DMCA’s criminalization of attempts to bypass those restrictions prevents copyright from ever achieving its Constitutional objectives to promote the progress of science and useful arts. The balance continues to tip even further in favor of the movie and record companies at the expense of individuals’ rights and freedom of expression. Now that the Copyright Office has punted, Congress and the courts will be forced to repair the imbalance in the law created by the DMCA and its criminalization of exercising media rights in the digital realm.