Digital Millennium Digital Millennium Copyright Act (DMCA)Copyright Act (DMCA)

An ethical and legal An ethical and legal discussiondiscussion

Lei Pan, Dmitriy PolishchukLei Pan, Dmitriy Polishchuk

DMCADMCA

• Introduction to DMCAIntroduction to DMCA– DMCA represents the most DMCA represents the most

comprehensive reform of United States comprehensive reform of United States copyright law in a generation.copyright law in a generation.

– Implements WIPO.Implements WIPO.– Attempts to update copyright laws for Attempts to update copyright laws for

the digital environment.the digital environment.

Presentation outlinePresentation outline

• Origin of the DMCAOrigin of the DMCA

• Legal DiscussionLegal Discussion– Analysis of the DMCA languageAnalysis of the DMCA language– Legal arguments in favor of the DMCALegal arguments in favor of the DMCA– Legal arguments against the DMCA Legal arguments against the DMCA

Presentation OutlinePresentation Outline

• Ethics of the DMCAEthics of the DMCA– Ethical argument in favor of the DMCAEthical argument in favor of the DMCA– Ethical argument against the DMCAEthical argument against the DMCA

•Ethical Issues: ethics of copyright, ethics of Ethical Issues: ethics of copyright, ethics of the First amendment , ethics of fair use…the First amendment , ethics of fair use…

Origin of the DMCAOrigin of the DMCA

• History of copyright lawsHistory of copyright laws– Statue of Anne, England, 1710Statue of Anne, England, 1710– U. S. Constitution, Article I, section 8, U. S. Constitution, Article I, section 8,

17901790– U. S. Copyright Act, 1790U. S. Copyright Act, 1790– Folsom vs. Marsh, 1841Folsom vs. Marsh, 1841

•Fair use concept first introducedFair use concept first introduced

– U. S. Copyright revisions, 1909 and 1976U. S. Copyright revisions, 1909 and 1976 Continues next slideContinues next slide

Origin of the DMCAOrigin of the DMCA

• History of copyright laws (continue)History of copyright laws (continue)– Circulation of computer software, 1990Circulation of computer software, 1990– WIPO Copyright Treaty, 1996WIPO Copyright Treaty, 1996– WIPO Performances and Phonograms WIPO Performances and Phonograms

Treaty, 1996.Treaty, 1996.– The Digital Millennium Copyright Act, The Digital Millennium Copyright Act,

19981998

DMCA TimelineDMCA Timeline

• Legislative and ExecutiveLegislative and Executive– Bill first introduced in July, 1997Bill first introduced in July, 1997– Signed into law by President Clinton in Signed into law by President Clinton in

October, 1998October, 1998

StakeholdersStakeholders

• AuthorsAuthors

• PublishersPublishers

• ConsumersConsumers

• Libraries and educational institutionsLibraries and educational institutions

• GovernmentGovernment

• ResearcherResearcher

• the publicthe public

Legal analysis of the DMCALegal analysis of the DMCA

• The Five TitlesThe Five Titles– Implement WIPO Internet TreatiesImplement WIPO Internet Treaties– Establish safe harbors for online ISPsEstablish safe harbors for online ISPs– Permit temporary copies of programs Permit temporary copies of programs

during computer maintenanceduring computer maintenance– Make miscellaneous amendments to US Make miscellaneous amendments to US

copyright lawcopyright law– Create Create sui generissui generis protection for boat protection for boat

hull designshull designs

Title I. Title I. WIPO Treaties Implementation. WIPO Treaties Implementation.

• New chapter to Title 17 of U.S. Code.New chapter to Title 17 of U.S. Code.• Section 1201 – Circumvention of Section 1201 – Circumvention of

copyright protection systems.copyright protection systems.– Prohibits unauthorized access through Prohibits unauthorized access through

circumvention of copyright protection circumvention of copyright protection systems.systems.

– Anti-Trafficking Provision: prohibits the Anti-Trafficking Provision: prohibits the manufacture and distribution of the manufacture and distribution of the circumvention technology.circumvention technology.

There are ExceptionsThere are Exceptions

• Reverse Engineering ExceptionReverse Engineering Exception

• Exception for Law Enforcement and Exception for Law Enforcement and intelligenceintelligence

• Encryption research exceptionsEncryption research exceptions

• Security testing exceptionsSecurity testing exceptions

• Exceptions for non-profit Libraries, Exceptions for non-profit Libraries, Archives, and educational institutions.Archives, and educational institutions.

Title I:Title I:

• Section 1202 – Copyright Section 1202 – Copyright Management InformationManagement Information– Prohibits tampering with copyright Prohibits tampering with copyright

management information (CMI).management information (CMI).

Title II: Online Service Provider Title II: Online Service Provider (OSP) Liability(OSP) Liability

• Limits OSP liability for copyright Limits OSP liability for copyright infringement.infringement.– Eligibility requirementEligibility requirement

• Safe Harbors for system storage and Safe Harbors for system storage and information locating toolsinformation locating tools

• Safe Harbors for system cachingSafe Harbors for system caching

• Safe Harbors for transmitting and Safe Harbors for transmitting and routingrouting

Title III: Computer Maintenance Title III: Computer Maintenance or Repair Copyright Exemption or Repair Copyright Exemption

• Amends section 117 of the US Amends section 117 of the US Copyright ActCopyright Act

• Give exemptions for copyright Give exemptions for copyright infringement occurred in the process infringement occurred in the process of computer maintenance or repair.of computer maintenance or repair.

Title IV: Miscellaneous Title IV: Miscellaneous ProvisionsProvisions

• Distance educational studyDistance educational study

• Exemptions for libraries and Exemptions for libraries and archives.archives.

Testing the DMCATesting the DMCA

• Cases:Cases:– MPAA vs. Emmanuel GoldsteinMPAA vs. Emmanuel Goldstein– Universal vs. ReimerdesUniversal vs. Reimerdes– The SDMI Challenge (Ed Felton)The SDMI Challenge (Ed Felton)– Adobe and DOJ vs. Elcomsoft and Adobe and DOJ vs. Elcomsoft and

SklyarovSklyarov

Legal Arguments in favor of Legal Arguments in favor of the DMCAthe DMCA

• Fulfills the government role as Fulfills the government role as defined in the Constitution.defined in the Constitution.– U. S. Constitution, Article I, Section 8U. S. Constitution, Article I, Section 8

• Prevent intellectual property piracy.Prevent intellectual property piracy.

• Access control is nothing new.Access control is nothing new.– Previous case historyPrevious case history

Legal arguments in favor of the Legal arguments in favor of the DMCADMCA

• DMCA does not prevent “fair use”.DMCA does not prevent “fair use”.– Fair use does not include making Fair use does not include making

unqualified and complete copiesunqualified and complete copies– If there is no legal access, there is no legal If there is no legal access, there is no legal

use, fair or otherwise.use, fair or otherwise.

• First Amendment rights are not First Amendment rights are not violated.violated.– Code is not speech.Code is not speech.– Code carries functions.Code carries functions.

Legal Arguments against the Legal Arguments against the DMCADMCA

• DMCA limits the traditions of “fair DMCA limits the traditions of “fair use”.use”.– Prevents others from making fair use of Prevents others from making fair use of

copyrighted works by depriving them of copyrighted works by depriving them of the means to do so.the means to do so.

– Limits scientific researchLimits scientific research

Code is SpeechCode is Speech

• Bomb-making instructions are not Bomb-making instructions are not bombs.bombs.

• A drawing of a gun is not a weapon.A drawing of a gun is not a weapon.– All are fully protected speechAll are fully protected speech

• How is Code different?How is Code different?– Code is a set of instructions to a machine.Code is a set of instructions to a machine.

Code is not dangerousCode is not dangerous

• Computer programs don’t do Computer programs don’t do anything.anything.– Merely expressions of ideasMerely expressions of ideas

• DeCSS does not pirate DVD movies.DeCSS does not pirate DVD movies.– A person must insert the DVD into a A person must insert the DVD into a

drive, load DeCSS onto a digital drive, load DeCSS onto a digital computer, and run it.computer, and run it.

Vagueness of the DMCAVagueness of the DMCA

• DMCA is too vague.DMCA is too vague.– Language is not understandable to Language is not understandable to

persons of ordinary intelligencepersons of ordinary intelligence– Such persons are subject to Such persons are subject to

discriminatory enforcement.discriminatory enforcement.

Ethical Discussion of the Ethical Discussion of the DMCADMCA• DMCA, like all copyright laws, are legal provisions DMCA, like all copyright laws, are legal provisions

with ethical originswith ethical origins..– What does ethics mean?What does ethics mean?

• DMCA attempts to answer hard ethical questions.DMCA attempts to answer hard ethical questions.– IIf our property can be infinitely reproduced and f our property can be infinitely reproduced and

instantaneously distributed all over the planet without instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving cost, without our knowledge, without its even leaving our possession, how can we protect it?our possession, how can we protect it?

– How are we going to get paid for the work we do with How are we going to get paid for the work we do with our minds?our minds?

– If we can't get paid, what will assure the continued If we can't get paid, what will assure the continued creation and distribution of such work?creation and distribution of such work?

Ethical Discussion of the Ethical Discussion of the DMCADMCA

• One more hard question that we One more hard question that we would like you to think about is:would like you to think about is:– Is it ethical to view intellectual property Is it ethical to view intellectual property

rights the same way we view physical rights the same way we view physical property rights, something which property rights, something which fundamental to our lives; or is it ethical fundamental to our lives; or is it ethical to see our creations and their to see our creations and their expressions as the collective property of expressions as the collective property of humanity?humanity?

Ethical arguments in favor Ethical arguments in favor of DMCAof DMCA

• The DMCA is a legislative mean to The DMCA is a legislative mean to protect copyright.protect copyright.

• Traditional Copyright Principles Traditional Copyright Principles – Copyrights are personal property rights;Copyrights are personal property rights;– Copyright provides incentives for more Copyright provides incentives for more

creativitycreativity

• It is unethical for anyone, including researcher, to violate copyright law under the claim of free expression and scientific research. – Interesting quote from a DMCA Interesting quote from a DMCA

advocate: "Academics make a living advocate: "Academics make a living from free speech. They don't make a from free speech. They don't make a living from copyrights, and they don't living from copyrights, and they don't sell copyrighted works, …,They use sell copyrighted works, …,They use them, quote them, pass them around, them, quote them, pass them around, and use them in publishing their and use them in publishing their research." research."

Another Ethical Argument in Another Ethical Argument in Favor of the DMCAFavor of the DMCA

•Undue Criticism– Regardless of controversy, some of the

non-anti-circumvention provisions are proving useful and relatively uncontroversial and does not deserve the same criticism intended for those prosecuting Sklyarov.

DMCA Title IIIDMCA Title III

• The DMCA’s Title III provisions The DMCA’s Title III provisions provide significant protection, legal provide significant protection, legal and ethical, against copyright and ethical, against copyright infringement which arise from infringement which arise from postings made by third parties on postings made by third parties on Internet websites.Internet websites.– Hendrickson vs. eBay Hendrickson vs. eBay

DMCA Creates Important DMCA Creates Important Exception For ISPException For ISP

• DMCA creates an important DMCA creates an important exception for "service providers" that exception for "service providers" that meet certain requirements.meet certain requirements. – Without this exception, countless Without this exception, countless

Internet publishers and other online Internet publishers and other online companies would face the impossible companies would face the impossible task of policing everything that occurs task of policing everything that occurs on their watch. on their watch.

Ethical Arguments Against Ethical Arguments Against DMCADMCA

• Attributing a work or idea to one Attributing a work or idea to one author only, excludes and denies the author only, excludes and denies the contributions made by countless contributions made by countless others to its generation.others to its generation.

• Copyrights are unethical, and to Copyrights are unethical, and to some, immoral. They are, after all, some, immoral. They are, after all, government-granted monopolies.government-granted monopolies.

Ethical Argument Against the Ethical Argument Against the DMCADMCA

• It is unethical for the DMCA to restrict the It is unethical for the DMCA to restrict the free expression in scientific research.free expression in scientific research.– Ed Felton CaseEd Felton Case– Despite an “exemption” in the DMCA for Despite an “exemption” in the DMCA for

“Encryption Research, “, several scientists are “Encryption Research, “, several scientists are refraining from publishing or presenting their refraining from publishing or presenting their findings regarding flaws in access-control findings regarding flaws in access-control software and encryption research projects out of software and encryption research projects out of fear of being found civilly, and potentially, fear of being found civilly, and potentially, criminally liable for violations of the anti-criminally liable for violations of the anti-circumvention sections of the DMCA.circumvention sections of the DMCA.

Ethical Arguments Against the Ethical Arguments Against the DMCADMCA

• DMCA promotes unfair business DMCA promotes unfair business practicespractices– Promotes a particular business modelPromotes a particular business model

– Unethical for a law to prefer one Unethical for a law to prefer one business model over anotherbusiness model over another

Concluding Ethical Concluding Ethical Arguments Against DMCAArguments Against DMCA

• DMCA’s protections go too far.DMCA’s protections go too far.

• "encryption research" exemption, "encryption research" exemption, appear to be too difficult to meet. appear to be too difficult to meet.

• Many people will choose to not share Many people will choose to not share their information or research for fear their information or research for fear of being prosecuted under the DMCA. of being prosecuted under the DMCA.

• Balance must be established. Balance must be established.

ConclusionConclusion

• The DMCA is an attempt by the U.S. The DMCA is an attempt by the U.S. government to modify the prior copyright government to modify the prior copyright law to respond to challenges of the digital law to respond to challenges of the digital millennium.millennium.– DMCA applies tangible laws to intangibles worldDMCA applies tangible laws to intangibles world– Full of controversies, legally and ethicallyFull of controversies, legally and ethically

• Organizations should adjust their policies Organizations should adjust their policies to take advantage of the DMCA provisions to take advantage of the DMCA provisions and exempts.and exempts.

ReferencesReferences

• Touretzky, David, “A Great Debate: Is Computer Code Touretzky, David, “A Great Debate: Is Computer Code protected speech?” protected speech?” http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/Debate/http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/Debate/

• Digital Millennium Copyright Act: Status and Analysis, Digital Millennium Copyright Act: Status and Analysis, http://www.arl.org/info/frn/copy/dmca.htmlhttp://www.arl.org/info/frn/copy/dmca.html

• http://www-cse.stanford.edu/classes/cs210/projects-00-01/dhttp://www-cse.stanford.edu/classes/cs210/projects-00-01/dvd-copyingvd-copying

• Universal City Studios vs. Reimerdes, 111 F. Supp. 2d 294, Universal City Studios vs. Reimerdes, 111 F. Supp. 2d 294, 332 (S.D.N.Y. 2000) 332 (S.D.N.Y. 2000)

• Is Copyright Ethical? Is Copyright Ethical? Http://www.bc.edu/bc_org/avp/law/st_org/iptf/commentary/cHttp://www.bc.edu/bc_org/avp/law/st_org/iptf/commentary/content/1999060505.htmlontent/1999060505.html

• The Economy of Ideas, The Economy of Ideas, http://http://www.eff.org/~barlow/EconomyOfIdeas.htmlwww.eff.org/~barlow/EconomyOfIdeas.html