Specific Problems with the Digital Millennium Copyright Act

Many people have written with great care and lucidity about problems with the Public Law 105-304, also known as the Digital Millenium Copright Act (DMCA). Below are links to the DMCA itself and articles written by professionals. Because none of these articles really reference the text of the DMCA itself, I've posted my own essay below which attempts to make crystal-clear which sections of the DMCA are problematic, and why these sections are problematic.

DMCA Links

The law itself:

The Digital Millennium Copyright Act
Excerpt of DMCA containing just section 1201

Pittsburgh and the DMCA

Join the Pittsburgh DMCA Discussion List (email)
The fledgling Pittsburgh DMCA Protest Website

Articles and other materials related to the DMCA

Get smart, fast! Read the EFF's FAQ about Dmitry Sklyarov and the DMCA.
The best introduction I've found to why you should care about the DMCA (free registeration required)
"Adobe in Wonderland" by Standford professor Lawrence Lessig
The Electronic Frontier Foundation's (EFF) DMCA archive
Key Legislators on Fair Use and DMCA.

Paul Komarek's Introduction to the Bad Parts of the DMCA

The Digital Millennium Copyright Act, also known as the DMCA, is an attempt to protect the rights of copyright holders in the emerging world of digital distribution. My complaints, and in fact the only complaints I've ever heard about the DMCA, concern the omission of "fair use" provisions in certain sections.

"Fair use" is the right of members of our society to read, listen, or otherwise digest copyrighted material in the manner of one's choosing, the right to lend copyrighted materials to others, the right to make archival copies of copyrighted materials for safe-keeping, and the right to use copyrighted materials for educational purpose; all with or without the permission or blessing of the copyright holder. These rights further the purpose of copyright -- to encourage the creation and distribution of content, hopefully for the betterment of our society. These rights do not infringe on the rights of the copyright holder. You can think of this balance as society granting someone copyright in exchange for "fair use" of his or her content.

We as a society created copyright for a specific purpose -- to improve our society. Without fair use, our society gains little from granting copyright protection to a content creator, and there is an imbalance of rights. Some "fantasies" about what we might lose as a society if we lost the right to fair use of copyrighted materials:

All of these are real, you don't need to imagine them. If a publisher publishes a book in printed form, you still have these rights and the ability to exercise these rights. If a publisher publishes a book electronically, you only have the ability to read the book in a manner allowed by book-reading software chosen by the publisher. If that software does not allow you to exercise your right to fair use, what can you do?

The obvious answer to the question in the previous paragraph is to find better book-reading software. This is where my problem with the DMCA appears. Someone has to write the better book-reading software. In order to write the software, the software author must understand how the electronic book is electronically formatted. This may require defeating content-protection schemes put in place by the original publisher. If so, the DMCA makes it illegal for the better book-reading software author to distribute his or her product.

Let's be clear about this. It is not illegal to bypass content-protection mechanisms in electronic books, as long as you don't infringe on the rights of the copyright holder. This is covered by section 1201(a)(1) of the DMCA, and nobody has a problem with this section. However, sections 1201(a)(2) and 1201(b)(1) (same link as above to section 1201) make it illegal to sell software which bypasses the content-protection mechanism of electronic books. The conclusion is that if you can write the better book-reading software yourself, you can exercise your right to fair use. If you cannot write the software yourself, as is the case with nearly everyone on this planet, then you lose the ability to exercise your right to fair use, because nobody can sell or give to you better book-reading software.

It may not yet be clear why this is such a bad thing. Let's suppose Adobe Systems Inc. sells book-reading software, and a publisher publishes Alice in Wonderland in Adobe's eBook format. Adobe's software only allows you to lend the electronic book if the publisher gave permission. Regardless of whether the publisher gave permission, you have the right to lend the electronic book, because of fair use -- this is what you were given in exchange for granting copyright protection to the author or the publisher. But you can't lend it because the software won't allow you to lend it. Suppose now another company writes software that allows you to read the electronic book however you like, to lend it or have it read to you by a computer; and assume that this company sells their software to the public. What happens next is easy to predict: a Russian graduate student visiting the United States is arrested and held without bail for more than two weeks after presenting a description of Adobe's eBook format at a conference about computer security.

If you don't think that wasn't the obvious next event, then please pay close attention to news about the DMCA and copyright law. Did you hear the one about the professor at Princeton University, who published a paper explaining why a certain content protection mechanism was faulty? Shortly before he was to present his research at a conference at Carnegie Mellon University, he was threatened with a lawsuit by several groups including notably the Recording Industry Association of America (RIAA). In order to protect the conference from litigation, he withdrew his paper. Think about this one more time: because of a lawsuit made possible by sections 1201(a)(2) and 1201(b)(1) of the DMCA, the Recording Industry of America was able to effectively censor Professor Edward Felton's academic research, because they didn't like his conclusions. Proving that they aren't complete idiots the RIAA and other groups withdrew their lawsuit, but only after it was too late to make the presentation. Thankfully, Professor Felton has brought a lawsuit against those groups that manipulated the legal system to censor his research.

Unfortunately it doesn't end there. There is another high-profile DMCA case, that of Universal City Studios v. Reimerdes et al.. To read more about this, I recommend the Carnegie Mellon University Professor David S. Touretzky's Gallery of CSS Descramblers. You might wonder why so many professors and graduate students end up on the wrong side of the DMCA stick. It is because they are thinkers, and are thinking things that some well-heeled United States corporations don't want to hear. These are the people who could write, and have written, the equivalents of better book-reading software; software which allows you to exercise your right to fair use. Much of the time they share their research and software with the world for no charge (when the university is putting food on their table). And this act of sharing is, in the case of better book-reading software, prohibited by United States Public Law 105-304, the Digital Millennium Copyright Act, which was signed in 1998 and became law in 2000.

Thank-you for reading this far. There's much more to be said, for instance highlighting how the bad parts of the DMCA apply to music and video content, but not here and not now (I'm tired and want to go to bed, and there's an anti-DMCA protest in Pittsburgh this morning). Thankfully, some people in congress are proposing amendments to the bad sections of the DMCA. However, amendments were attempted in 1998 and failed. We may never know why our Congress chose not to protect our right to fair use of copyrighted materials, but we can be sure they get the message that we don't appreciate it. If you're inclined, go to http://www.congress.gov and look around for the Senators and Representatives who are supposed to have your best interests at heart. If you'd like to discuss the DMCA, anything I've written here, or wish to ask for more help on making a difference on this issue, please feel free to email me.

The Digital Millennium Copyright Act
Excerpt of DMCA containing just section 1201
Join the Pittsburgh DMCA Discussion List (email) The fledgling Pittsburgh DMCA Protest Website

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Created by Paul Komarek, komarek.paul@gmail.com