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DMCA: The Copyright Flashpoint
by Drew Clark
More than four years after its unanimous passage, the Digital Millennium Copyright Act (DMCA) is far more controversial now than it once was.
Enacted in October 1998, the law was promoted by a coalition of entertainment companies and software publishers as a necessary update of copyright law. But with the statute now wielded against computer scientists and programmers, companies that help consumers make personal copies of digital videodiscs and even Web sites that publish the prices of retailers' goods without permission, the groundswell against the law has been on the upswing.
One simple way to gauge the trend is through the number of articles on DMCA searchable through the Lexis-Nexis news database. The numbers hovered at about 300 in 1998 and 1999, but surpassed 1,700 in each of the past two years.
The Tale Of 'Poor Developer Dmitry'
The core of the controversy is the way the law vitiates the consumers' ability to make "fair use" of copyrighted material. First articulated by the Supreme Court in 1834 in the Wheaton v. Peters case, the doctrine attempts to reconcile copyright law's general bar on unauthorized reproductions with the First Amendment's guarantee of free speech. Codified in the 1976 Copyright Act, the fair-use doctrine is a four-part defense weighing such factors as whether the copying is commercial and whether copies impact the market for the original work.
Defining a set of fair-use rights is extremely tricky, though, so movie studios, book publishers and software manufacturers put digital locks on their content. That can make digital piracy more difficult but also can stop legal copying. Few people might complain, however, were it not for the DMCA's trigger: criminal penalties for individuals who circumvent encryption either to view or build a software tool to copy digital content.
Critics of the law were heartened this week when the government lost its first criminal test of the statute. A federal jury acquitted ElcomSoft, a Moscow-based software company, on charges that it had violated DMCA's anti-circumvention provision by creating a program called the Advanced eBook Processor. The software reverse engineered copyright protections on Adobe's eBook Reader software, permitting users to read copies of their e-books on different computers.
Adobe officials complained to the Justice. That led to the July 2001 arrest of Dmitry Sklyarov, a former programmer at the company, when he presented his research at a hackers' conference in Las Vegas. The arrest led to an immediate outcry on the Internet and elsewhere. Many critics of DMCA, including Rep. Rick Boucher, D-Va., defended Sklyarov and ElcomSoft because they said the firm's product enabled fair uses in addition to copyright infringement. The critics noted that ElcomSoft was never charged with any direct copyright infringement.
Adobe officials then said they had not intended on instigating the arrest of a programmer and eventually deferred charges against Sklyarov if he testified at the criminal trial of ElcomSoft. Speaking in an interview after the furor faded, Adobe CEO Bruce Chizen said: "ElcomSoft was violating the law. The government chose to prosecute and the media wanted to tie it into someone," and they personalized it in the "poor developer Dmitry."
Reflecting on the episode, he said: "We didn't know the U.S. attorney's office was going to take the action they were taking; otherwise, we would have approached them differently."
After the not-guilty verdict Justice officials praised their colleagues in San Jose for "prosecuting a really difficult case" and said the setback would not deter future DMCA actions. "Digital piracy is very real and specific," said Michael O'Leary, deputy chief for intellectual property in the department's computer-crime section. "We have only used the DMCA in a limited number of cases thus far, and we will continue to look for cases. I'm not sure, at the end of the day, we will see the statute being used less."
Court Fights From St. Louis To Norway
But far more individuals and companies who say they fear the DMCA and its impact are facing their adversaries in court.
In a closely watched case in Oslo, Norway, 19-year-old Jon Johansen stood trial in early December on charges that he created software permitting individuals to decrypt DVDs so they could be watched on various computers irrespective where the DVDs were produced.
The government's special economic crimes division charged him and prosecuted him under a provision of the Norwegian criminal code that makes it illegal to break into another person's locked property to access data. The law normally is reserved for suspects accused of break-ins to steal information, and many of Johansen's defenders view the case as a backdoor attempt to impose a DMCA-like law on Norway, which does not currently ban circumvention.
Although Johansen could have been subject to two years in prison if convicted, prosecutors said in their closing arguments on Dec. 16 that they would seek a 90-day suspended sentence for the programming Johansen undertook as a 15-year-old boy.
A company concerned about the DMCA's impact is St. Louis-based 321 Studios, which offers software designed to permit individuals to make copies of DVDs.
Fearing a lawsuit from the Motion Picture Association of America, the company filed a pre-emptive suit in federal court in San Francisco. It is seeking a declaration that its product does not violate the law and recently launched a Web site, ProtectFairUse.org, designed to rally consumers and legislators to support its cause.
The Washington Battle
One key strategy of ProtectFairUse.org -- as well as DigitalConsumer.org, another advocacy group concerned about how technologies could limit fair use -- is to support two bills introduced late in the 107th Congress. Both would create a new exception to the DMCA permitting circumvention of anti-piracy technology if it is done for a non-infringing purpose.
"The only remedy that will be meaningful is to amend the DMCA to preserve fair-use rights," Boucher said. His legislation would have done just that by restricting the bar on circumvention to only those instances where it resulted in copyright infringement. Another proposal by Rep. Zoe Lofgren, D-Calif., would accomplish a similar end but only after "the copyright owner fails to make publicly available the necessary means" to circumvent encryption for fair-use purposes.
"I commend the jury in the ElcomSoft case for making the proper decision," Boucher said. But because another jury could decide differently, technology companies seeking to provide technological tools are still frightened from making such circumvention tools.
Further stirring the debate is a Library of Congress rule-making to determine whether -- absent any changes in the law -- any exceptions should be granted to the circumvention rule. Among those that consumers and electronic liberties groups are advocating: the ability to crack encryption to play DVDs released outside the United States, to skip commercials on DVDs, and to view old films that no longer under copyright law.
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