K. Matthew Dames is the Resident Librarian at Georgetown University Law Center’s Edward Bennett Williams Law Library in Washington, D.C.
Critics of the Digital Millennium Copyright Act1 will spend part of this holiday season figuring out how to use the lumps of coal a pair of federal courts tossed them in response to lawsuits that challenged the constitutionality of the 1998 law.
In one of the cases, the United States Court of Appeals for the Second Circuit upheld a lower court’s injunction that prohibits defendants Eric Corley and his company, 2600 Enterprises, Inc., from posting on their website a computer program that allows access to the restricted content on digital versatile discs, or DVDs.
Perhaps more importantly, the Second Circuit also rejected the defendants’ constitutional challenge to the DMCA, in which they claimed that posting the code to DeCSS, the decryption program, on the 2600.com website was speech that warranted protection under the First Amendment.
“Although the parties dispute the extent of impairment of communication if the injunction is upheld and the extent of decryption if it is vacated …, the fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided,” wrote Judge Jon O. Newman in a unanimous Nov. 28 decision. “In facing this choice, we are mindful that it is not for us to resolve the issues of public policy implicated by the choice we have identified. Those issues are for Congress. Our task is to determine whether the legislative solution adopted by Congress, as applied to the Appellants by the District Court’s injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.”
Corley was “disappointed but not particularly surprised,” according to Cindy Cohn, legal director for the Electronic Frontier Foundation, a civil liberties organization that coordinated Corley’s appeal. “He feels this is the right cause. I expect if we go forward, we will as ask for en banc review.” Corley can ask for the full Second Circuit to hear the case, or appeal directly to the U.S. Supreme Court.
An unofficial, unpaginated hypertext version of the decision is available from the Electronic Frontier Foundation’s website.
Across the Hudson River, District Judge Garrett E. Brown Jr. dismissed another First Amendment challenge to DMCA filed by a group of professors led by Princeton University’s Edward Felten. Felten and his colleagues had sued the Recording Industry Association of America (RIAA) in April shortly after RIAA, a music industry lobbying group, threatened to sue them for disclosing research that summarized how they cracked a watermark2 developed by the Secure Digital Music Initiative (SDMI).
Felten was part of a team of researchers from Princeton University and Rice University that cracked the watermark in October 2000 in response to a challenge that SDMI issued a month earlier. SMDI had offered up to $10,000 to any hacker who could successfully access a piece of content that was protected by an Initiative watermark. SDMI also would allow the winning challenger an opportunity to help the Initiative among four watermarking technologies.3
In his complaint, Felten asked the district court to declare him and other plaintiffs not liable under the DMCA. In an amended complaint, Felten also asked the court to rule that the DMCA’s civil and criminal enforcement provisions chilled the researchers’ free speech rights in violation of the First Amendment.
Judge Brown rejected the claim without issuing a written opinion, ruling that the case did not meet the case and controversy requirement;4 it is unknown whether Brown will submit an opinion.
“We are happy that the court recognized what we have been saying all along: there is no dispute here,” said Cary Sherman, RIAA’s general counsel, after the decision was announced. “As we have said time and again, Professor Felten is free to publish his findings.” The Department of Justice joined the RIAA in asking the court to dismiss Felten’s claim.
Felten, who is visiting this year at Stanford University, could not be reached for comment. EFF’s Cohn, who also coordinated the Felten case, said the professor would consider whether to appeal the decision.
DMCA critics, which include library representative organizations such as the American Association of Law Libraries, had hoped these court challenges would help stem a trend they believe upsets the balance between users and copyright owners that is outlined in the Constitution.5 The critics also hoped that the federal courts would view these First Amendment challenges to DMCA as favorably as they did when the Supreme Court affirmed the unconstitutionality of the Communications Decency Act.6
Instead, they say these defeats mark an advancing trend in which Congress, copyright owners and the courts narrow consumers’ speech and copyright rights in the digital age.
Clinton-Era Law Implements International Copyright Treaties
At issue in these and other cases7 is whether the DMCA’s anticircumvention provisions diminish the first sale doctrine, the fair use privilege and the First Amendment.8 The law, which President Clinton signed on Oct. 28, 1998, implements the World Intellectual Property Organization’s Copyright Treaty, and its Performances and Phonograms Treaty.
“These treaties will become effective at a time when technological innovations present us with great opportunities for the global distribution of copyrighted works,” Clinton said upon signing the DMCA into law. “These same technologies, however, make it possible to pirate copyrighted works on a global scale with a single keystroke. The WIPO treaties set clear and firm standards – obligating signatory countries to provide ‘adequate legal protection’ and ‘effective legal remedies’ against circumvention of certain technologies that copyright owners use to protect their works, and against violation of the integrity of copyright management information. This Act implements those standards, carefully balancing the interests of both copyright owners and users.”9
The DMCA is divided into five titles; its anticircumvention provisions in Title I and are codified at Section 1201 of the Copyright Act of 1976. In summary, Section 120110 prohibits people from “circumvent[ing] a technological measure that effectively controls access to a [copyrighted] work.”11 The Section also prohibits people from manufacturing or offering to the public “any technology, product, service, device [or] component” that
(a) is designed or pr
oduced primarily to circumvent copyright protections;12
(b) has a limited commercially significant purpose other than to circumvent copyright protections;13 and
(c) is marketed in use for circumventing copyright protections.14
One commentator calls this the ban on “breaking and entering”: merely accessing the technological portions of a copyrighted work is, in and of itself, a violation.15
Further, there is an almost identical provision that prohibits a person from manufacturing or offering to the public any “technology …” that circumvents a “protection … that effectively protects the right of a copyright owner.”16 The same commentator calls this a ban on “disorderly conduct”: assuming you have accessed the technological portions of a copyrighted work, you cannot change anything.17
Libraries, archives and educational institutions can avoid Section 1201 liability under certain specified conditions, including when they access the work in order to determine whether or not they are going to purchase it.18 Additionally, Section 1201 states that the anticircumvention prohibition does not affects rights of free speech19 or copyright infringement defenses such as fair use.20
Theory and Practice: Is DMCA Anti-Competitive?
The goal of the DMCA’s anticircumvention clauses is to protect copyright owners’ ability to electronically protect their content. Despite the plain language of the statute, however, the courts’ and owners’ early interpretation of Section 1201 suggest the law has a much broader sweep, one that tilts the copyright balance away from traditionally defined free speech and fair use principles, and toward an environment in which copyright owners control their work exclusively and preemptively.
Scientific researchers’ concern over the possibility of being sued is one example of how this tilt manifests itself. “We provided [the district court in Felten] six inches worth of declarations from professors all over the world that said that this law frightens them,” said Cohn, the EFF legal director. “Scientific conferences are being moved overseas because of this law.”
The paper Felten was prepared to present at the fourth annual Information Hiding Workshop in Pittsburgh contained no instructions on how to build a technology that would defeat SDMI’s watermark. In National Public Radio interview, Felten said the paper “would be mostly unintelligible to a layperson. The paper is written for our scientific colleagues and so it involves some fairly advanced analysis.”21 Yet, Felten chose not to present the paper at the Workshop, fearing a lawsuit. (Felten and his colleagues did ultimately presented the paper in August at the Usenix Security Conference in Washington, D.C.)
Felten’s case is not the only instance where a copyright holder has leveraged Section 1201 in a way that effectively quells dissenting or critical speech. The British research firm Huntingdon Life Sciences temporarily shut down the website of one of its most vocal critics, anti-animal testing group Stop Huntingdon Animal Cruelty, when it sent a cease-and-desist letter to the group’s online service provider, alleging DMCA violations.22
This did not sway the Felten court. “This judge took the position that these scientists have to wait to get sued,” Cohn continued.
Peter Jaszi, a professor of law at American University in Washington, D.C., also was disappointed with Judge Brown’s failure to address the First Amendment issue on its merits.
“I’m sorry that the judge didn’t take more seriously the real chilling effect that uncertainty about the scope of the DMCA tools provisions is having on the scientific and academic communities, especially in the field of computer science,” said Jaszi. “The case would have been an excellent vehicle for a dispassionate review of the [Section] 1201 provisions. Unless the Third Circuit reverses the dismissal, it’s a real opportunity lost.”
Owners Leveraging DMCA in Multiple Arenas
While neither of Felten nor 2600 addressed fair use and first sale doctrine issues, recent developments make it clear that copyright owners are seeking to leverage Section 1201 in ways that limit even authorized users’ ability to exercise their intellectual property and commercial rights and privileges.
Digital rights management (DRM) technologies are one tool the entertainment industry is using to narrow the scope of traditional rights. Universal Music Group – a sister company of Universal City Studios, the plaintiff in the 2600 case – announced in late November that the company was going to place copy-protection technology on its “More Fast & Furious” compact disc, a follow-up to a major a popular movie soundtrack.
The copy-protection scheme will keep any purchaser from saving the disc’s contents to their computer hard drive.23 Any attempt to bypass this protection – even an attempt from an authorized purchaser – could run afoul of the DMCA.
Universal’s announcement follows BMG Entertainment’s recall of CD versions of Natalie Imbruglia’s new album “White Lilies Island,” which was released with embedded copy-protection technology in Britain. BMG agreed to exchange copy-protected discs with a regular discs after the company received a raft of consumer complaints.24
The battle to shape the scope and debate over electronic rights also is being waged in the legislative arena. Currently, there is no law that requires electronics manufacturers to design products with electronic copyright protections. This may change if legislation introduced by Senator Fritz Hollings (D-S.C.) moves through Congress.
Hollings’ Security Systems Standards and Certification Act (SSSCA), currently in draft form, would levy penalties against electronics manufacturers if they fail to create computer equipment that does not implement “certified security technologies.” Anyone who distributes copyrighted material that has disabled the item’s electronic securities features could be held civilly or criminally liable.25
News of Sen. Hollings’ bill spread before the Sept. 11 terrorism attacks. Since Congress is busy with legislation related to the attacks, it is unlikely that Hollings will introduce during the remainder of this session of Congress. The entertainment industries, however, were very enthusiastic about the bill,26 so it is almost certain that the bill will be introduced in the 108th Congress.
The entertainment industry is reinforcing such efforts with “public education” that “teaches” children about copyright issues. Wired News reported in late October that the Disney Channel aired an episode of its animated cartoon, The Proud Family, in which one of the characters, Penny Proud, is threatened with arrest after she uses a file-trading program called “Free Jackster.” The show’s creator denies that the show had any pro-Disney or asset protection subtext.27
The court rulings and industry i
nitiatives come on the heels of an August report by the U.S. Copyright Office that concluded the DMCA and its implementation had not significantly undermined the first sale doctrine.28 “Given the relative infancy of digital-rights management, it is premature to consider any legislative change at this time,” the report stated.
With the courts failing to find that Section 1201 violates free speech and the Copyright Office taking a wait and see attitude on first sale and other issues, DMCA critics fear they are running out of time to readjust the copyright balance. “I expect that once this status quo becomes entrenched, it will be incredibly hard for a court to draw the line and say that Section 1201 goes too far,” said Jonathan Franklin, Assistant Librarian for Library Services at the University of Washington’s Gallagher Law Library, and AALL’s Copyright Committee chairman.
Franklin said he remained hopeful that remaining court cases and the Copyright Office’s stated willingness to revisit the issues raised in the report will stem a tide that clearly is gaining momentum in favor of copyright holders. “In the meantime, a lot of issues will be chilled.”
1. Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). <back to text>
2. A watermark is a form of electronic access protection for compact discs. <back to text>
3. Janelle Brown, “Crack SDMI? No Thanks!” Salon.com, 14 Sept. 2000, http://www.salon.com/tech/log/2000/09/14/hack_sdmi/index.html (3 Dec. 2001). See also Edward W. Felten, et al. “Statement Regarding the SDMI Challenge,” No date, http://www.cs.princeton.edu/sip/sdmi/announcement.html (2 Dec. 2001). <back to text>
4. Cindy Cohn, Electronic Frontier Foundation Legal Director, interview by K. Matthew Dames, 29 Nov. 2001. <back to text>
5. “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. 1, § 8. <back to text>
6. Reno v. ACLU, 520 U.S. 1113, 117 S.Ct. 1241, 137 L. Ed. 2d 324 (1997). <back to text>
7. “These cases include United States v. Elcom Ltd., No. CR-01-20138 (N.D. Cal. filed Aug. 28, 2001), the first criminal prosecution under the DMCA. Defendants Dmitri Sklyarov, a Russian computer programmer, and his employer, Moscow-based ElcomSoft Co. Ltd., were indicted Aug. 28 on allegations that they violated the criminal provisions of the DMCA when they developed the Advanced eBook Processor, a technology that bypasses the digital rights management system in Adobe’s eBook Reader. In a stunning reversal, the Department of Justice agreed on Dec. 13 to dismiss the criminal charges against Sklyarov if he “appear[s] willingly and responds truthfully” at depositions, hearings and the scheduled April 15 trial against his employer.”
8. The DMCA also has provisions that limit the liability of online service providers and grants copyright protection for boat hull designs. <back to text>
9.President’s Statement on Signing the Digital Millennium Copyright Act, 2 Pub. Papers 1902 (Oct. 28, 1998). <back to text>
10. 17 U.S.C. § 1201 (1994). <back to text>
11. 17 U.S.C. § 1201(a)(1)(A) (1994). <back to text>
12. 17 U.S.C. § 1201(a)(2)(A) (1994). <back to text>
13. 17 U.S.C. § 1201(a)(2)(B) (1994). <back to text>
14. 17 U.S.C. § 1201(a)(2)(C) (1994). <back to text>
15. David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 686 (2000). <back to text>
16. 17 U.S.C. § 1201(b) (1994) <back to text>
17. Nimmer at 688. <back to text>
18. 17 U.S.C. § 1201 (d)(1) (1994). <back to text>
19. 17 U.S.C. § 1201(c)(4) (1994). <back to text>
20. 17 U.S.C. § 1201(c)(1) (1994). <back to text>
21. Rick Karr, “Scientists from Princeton Crack Musical Codes and Now the Music Industry is Up In Arms,” National Public Radio, 27 April 2001, Lexis-Nexis (29 Nov. 2001). <back to text>
22. Robert Lemos, “Online Limits to the First Amendment,” News.com, 30 Nov. 2001, http://news.cnet.com/news/0-1005-200-8026297.html (1 Dec. 2001). <back to text>
23. Reuters, “Universal to Protect U.S. Album Release,” News.com, 28 Nov. 2001, http://news.cnet.com/news/0-1005-200-8009369.html (30 Nov. 2001). <back to text>
24. John Borland, “Customers Put Kibosh on Anti-Copy CD,” News.com, 19 Nov. 2001, http://news.cnet.com/news/0-1005-200-7922576.html (30 Nov. 2001). <back to text>
25. Declan McCullagh, “New Copyright Bill Heading to DC,” Wired News, 7 Sept. 7 2001, http://www.wired.com/news/politics/0,1283,46655,00.html (2 Dec. 2001). <back to text>
26. Declan McCullagh, “Hollywood Loves Hollings’ Bill,” Wired News, 11 Sept. 2001 http://www.wired.com/news/politics/0,1283,46671,00.html (3 Dec. 2001). <back to text>
27. Brad King, “Disney’s Peer-to-Peer Pressure,” Wired News, 24 Oct. 2001, http://www.wired.com/news/business/0,1367,47806,00.html (2 Dec. 2001). <back to text>
28. The first sale doctrine says that once a person lawfully purchases a copyrighted work, he may sell “or otherwise dispose of” that work, notwithstanding the copyright owner’s right to distribute copies of his protected work. 17 U.S.C. § 109 (1994). <back to text>