Unintended Consequences: Twelve Years under the DMCAMarch 2. This document collects reported cases where the anti- circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It will be updated from time to time as additional cases come to light. Previous versions remain available. Executive Summary.
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Since they were enacted in 1. Digital Millennium Copyright Act ("DMCA"), codified in section 1.
Copyright Act, have not been used as Congress envisioned. Congress meant to stop copyright infringers from defeating anti- piracy protections added to copyrighted works and to ban the "black box" devices intended for that purpose.
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In practice, the anti- circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities: The DMCA Chills Free Expression and Scientific Research. Experience with section 1.
The lawsuit against 2. Princeton Professor Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public. The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public's fair use rights. Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal- use copies of movies they have purchased. The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple has used the DMCA to tie its i. Phone and i. Pod devices to Apple's own software and services. The DMCA Interferes with Computer Intrusion Laws. Further, the DMCA has been misused as a general- purpose prohibition on computer network access, a task for which it was not designed and to which it is ill- suited. For example, a disgruntled employer used the DMCA against a former contractor for simply connecting to the company's computer system through a virtual private network ("VPN").
DMCA Legislative Background. Congress enacted the DMCA's anti- circumvention provisions in response to two pressures.
First, Congress was responding to the perceived need to implement obligations imposed on the U. S. by the 1. 99. 6 World Intellectual Property Organization (WIPO) Copyright Treaty. Second (as reflected in the details of section 1. WIPO treaty required. Congress was also responding to the concerns of copyright owners that their works would be widely pirated in the networked digital world. Section 1. 20. 1 contains two distinct prohibitions: a ban on acts of circumvention, and a ban on the distribution of tools and technologies used for circumvention. The "act" prohibition, set out in section 1.
So, for example, this provision makes it unlawful to defeat the encryption system used on DVD movies. This ban on acts of circumvention applies even where the purpose for decrypting the movie would otherwise be legitimate. As a result, the motion picture industry maintains that it is unlawful to make a digital copy ("rip") of a DVD you own for playback on your i. Pod. The "tools" prohibitions, set out in sections 1.
These provisions ban both technologies that defeat access controls, and also technologies that defeat use restrictions imposed by copyright owners, such as copy controls. These provisions prohibit the distribution of software that was designed to defeat CD copy- protection technologies, for example.
Section 1. 20. 1 includes a number of exceptions for certain limited classes of activities, including security testing, reverse engineering of software, encryption research, and law enforcement. These exceptions have been criticized as being too narrow to be of use to the constituencies they were intended to assist.
A violation of any of the "act" or "tools" prohibitions is subject to significant civil and, in some circumstances, criminal penalties. Chilling Free Expression and Scientific Research. Section 1. 20. 1 has been used by a number of copyright owners to stifle free speech and legitimate scientific research. The lawsuit against 2. Professor Edward Felten's team of researchers, and prosecution of the Russian programmer Dmitry Sklyarov are among the most widely known examples of the DMCA being used to chill speech and research. Bowing to DMCA liability fears, online service providers and bulletin board operators have censored discussions of copy- protection systems, programmers have removed computer security programs from their websites, and students, scientists and security experts have stopped publishing details of their research.
These developments weaken security for all computer users (including, ironically, for copyright owners counting on technical measures to protect their works), as security researchers shy away from research that might run afoul of section 1. Apple Threatens Blu. Wiki. In 2. 00. 9, Apple threatened the free wiki hosting site Blu.
Wiki for hosting a discussion by hobbyists about reverse engineering i. Pods to interoperate with software other than Apple's own i. Tunes. Without a work- around, i. Pod and i. Phone owners would be unable to use third- party software, such as Winamp or Songbird, to "sync" their media collections between computer and i. Pod or i. Phone. 5. The material on the public wiki was merely a discussion of the reverse engineering effort, along with some snippets of relevant code drawn from Apple software. There were no "circumvention tools," nor any indication that the hobbyists had succeeded in their interoperability efforts.
Nevertheless, Apple's lawyers sent Odio. Works, the company behind Blu. Wiki, a cease and desist letter threatening legal action under the DMCA. Bluwiki ultimately sued Apple to defend the free speech interests of its users. In response, Apple dropped its threat, and Blu. Wiki reinstated the deleted pages.
DMCA Delays Disclosure of Sony- BMG "Rootkit" Vulnerability. Professor J. Alex Halderman, then a graduate student at Princeton University, discovered the existence of several security vulnerabilities in the CD copy- protection software on dozens of Sony- BMG titles. He delayed publishing his discovery for several weeks while consulting with lawyers in order to avoid DMCA pitfalls.
This left millions of music fans at risk longer than necessary. The security flaws inherent in Sony- BMG's "rootkit" copy- protection software were subsequently publicized by another researcher who was apparently unaware of the legal risks created by the DMCA. Security researchers had sought a DMCA exemption in 2.
DRM systems like the Sony- BMG rootkit, but their request was denied by the U. S. Copyright Office. In 2. 00. 6, the Copyright Office granted an exemption to the DMCA for researchers examining the security threat posed by copy protection software on compact discs. This exemption, however, did not protect researchers studying other DRM systems. In 2. 00. 9, Prof.
Halderman was again forced to seek a DMCA exemption from the Copyright Office in order to continue his computer security research relating to DRM systems, including the protection mechanisms used on the Electronic Arts videogame, Spore, which has been the subject of class action lawsuits alleging security vulnerabilities. As of February 2. Copyright Office had not ruled on the proposed exemption.
Sunn. Comm Threatens Researcher. In October 2. 00. Princeton graduate student J. Alex Halderman was threatened with a DMCA lawsuit after publishing a report documenting weaknesses in a CD copy- protection technology developed by Sunn. Comm. Halderman revealed that merely holding down the shift key on a Windows PC would render Sunn.
Comm's copy protection technology ineffective. Furious company executives then threatened legal action. The company quickly retreated from its threats in the face of public outcry and negative press attention. Although Halderman was spared, the controversy again reminded security researchers of their vulnerability to DMCA threats for simply publishing the results of their research. Cyber- Security Czar Notes Chill on Research.
Speaking at MIT in October 2. White House Cyber Security Chief Richard Clarke called for DMCA reform, noting his concern that the DMCA had been used to chill legitimate computer security research. The Boston Globe quoted Clarke as saying, "I think a lot of people didn't realize that it would have this potential chilling effect on vulnerability research."1.
Professor Felten's Research Team Threatened. In September 2. 00. Secure Digital Music Initiative (SDMI) issued a public challenge encouraging skilled technologists to try to defeat certain watermarking technologies intended to protect digital music. Princeton computer science professor Edward Felten and a team of researchers at Princeton, Rice, and Xerox took up the challenge and succeeded in removing the watermarks.
When the team tried to present their results at an academic conference, however, SDMI representatives threatened the researchers with liability under the DMCA. The threat letter was also delivered to the researchers' employers and the conference organizers. After extensive discussions with counsel, the researchers grudgingly withdrew their paper from the conference. The threat was ultimately withdrawn and a portion of the research was published at a subsequent conference, but only after the researchers filed a lawsuit. After enduring this experience, at least one of the researchers involved has decided to forgo further research efforts in this field. Hewlett Packard Threatens SNOsoft.