DMCA vs. DMCRA

by Alex Daniel

The Digital Millennium Copyright Act (DMCA) and the Digital Media Consumers' Rights Act (DMCRA) are at the opposite ends of the "copyright rights" axis, so to speak.

Representative Boucher and Doolittle's DMCRA will amend the changes made by the DMCA to prevent the corporate abuses of power that have been possible under the DMCA.

The DMCA was enacted in 1998 to take effect in the year 2000.  The DMCA modified the U.S. copyright statutes to provide protection for copyrighted digital material.  Since 1790, Congress has made modifications to the U.S. copyright statues to accommodate new material.

The DMCA is just the next step in the series of modifications to the copyright statutes.  There were other reasons for the DMCA's enactment.  At the 1996 World Intellectual Property Organization Diplomatic Conference, the U.S. adopted the World Intellectual Property Organization treaty.  There was a perceived need to comply with that treaty; the DMCA made that compliance but added much more than was necessary.  Copyright owners were rightly concerned that their works would be pirated on the digital frontier.

Congress did not intend for the DMCA to be abused as it is so today.  The DMCA was enacted to clear the gray area of pirating copyrighted digital works and to ban the "black box" type devices intended for that purpose.

In practice it has worked to that end and beyond.  The new clauses and provisions to the copyright statutes have been abused aggressively to stifle and control many legitimate activities.  The DMCA added anti-circumvention measures to the copyright statutes that forbid under penalty of law gaining access to a work by "circumventing a technological protection measure that would otherwise effectively control access to a copyrighted work."  The DMCA also prevents the import, manufacture, or export of any device that can circumvent that protection.

By doing this the DMCA gives copyright holders complete control over their works, no matter what the circumstances.  Historically, the U.S. copyright laws haven't given copyright holders this total control.

A major "safety" on this type of control is the fair use doctrine.  Fair use allows the end user to make copies of a copyrighted work for personal use, educational use, use in commentary, criticism, and parody or any other solely socially beneficial use.  A work protected by the DMCA cannot be copied by the end user without the express consent of the copyright holder.

This completely nullifies the fair use doctrine and tilts the balance of power dangerously toward the copyright holders.  By the same means the DMCA takes away the rights of First Sale and Limited Time.  First Sale gives the end users the right to sell a copy of a work over and over once it is made.  Limited Time limits the time that a copyright is in effect.  The copyright is granted for a limited time and after that time is up the work goes into the public domain.

The power that copyright holders now have over these rights is shown in their use of the DMCA.  Dimitry Sklyarov, a young Russian Ph.D. at Moscow University, was invited to speak at DEFCON about some of his research.  His speech outlined Adobe's eBook security and its weaknesses.  He and his company had developed a program that allowed the end user to make copies of an Adobe eBook, which was completely legal in Russia but illegal under the DMCA.  He was arrested.  Not for copyright infringement or for helping anyone else infringe upon copyright, but solely for citing weaknesses in eBook security.  He was arrested because someone he never met might use what he learned through his research to copy an eBook without the publisher's permission.

Adobe use the DMCA to punish Sklyarov for speaking out about his research.  After months of imprisonment Sklyarov was finally released under an agreement with the Department of Justice.  After his release the DMCA continued to prosecute his employer, ElcomSoft, under the criminal provisions of the DMCA.  ElcomSoft is based in Russia where there is no DMCA.  The DMCA is reaching across continents to stifle free speech.

Prior to this, the Motion Picture Association of America (MPAA) brought suit against 2600 Magazine for publishing DeCSS on its website.  DeCSS is an open-source application that allows Linux users to play DVDs.  DeCSS's primary use is a DVD player.  It also has the ability to change file formats from DVD to MPEG which is like playing a DVD and recording it to a VHS tape (which is, again, legal under the fair use doctrine).

Because it can do this it has become the target of the MPAA through the DMCA.  2600 was not accused of being involved in the development of this tool, nor was it accused of having used the software for copyright infringement.  The lawsuit was brought upon 2600 simply for making the source code available.

Free speech was denied to 2600 when they were enjoined from publishing the DeCSS source code.  2600 lost the case and lost the appeal.

Some good can be said to have come of this though - it was decidedly the most public display of the dangers of the DMCA yet.  The case provided a wake-up call to the hacker community and gave the world a glimpse of what corporations can do with the DMCA.

In September of 2000 the Secure Digital Music Initiative (SDMI) issued a public challenge encouraging the hacker community to defeat new watermarking technologies the SDMI hoped to use to thwart piracy.  Professor Edward Felten and his team of researchers from Princeton, Rice, and Xerox took up the challenge and succeeded in circumventing the watermark controls on the music files.

When the team tried to show their research at the 2001 USENIX conference, the SDMI threatened Felten with the DMCA.  The threat was in the form of a letter that was delivered to Felten and his team as well as their employers.  Sharing research such as Felten's is common practice in the computer science field.

It shows others' mistakes and can only lead to better solutions.  If Felten and his team presented their research the original security technology would of course be compromised, but many would offer suggestions to improve or replace the weak technology.  Even after SDMI had given Felten and his team permission to circumvent their watermarking technologies, they were still able to revoke the right of free speech with the DMCA.  Felten's team brought suit against SDMI and subsequently made a partial release of their research.

Prominent Dutch cryptographer Niels Ferguson recently discovered major flaws in a commercial hi-definition video encryption system.  Ferguson rightly fears legal action under the DMCA and has therefore declined to release any of his work.  He doesn't talk to his peers and scientific colleagues for fear of his research simply reaching the U.S. which he thinks could be interpreted as a violation of the DMCA.

This shows the beginning of a horrible trend.  Scientists are withholding research or simply avoiding the U.S. out of fear. Scientific development in the U.S. is being stifled for the benefit of the corporation.  Scientists now fear the U.S.  They fear the "Land of the Free" because (((corporations))) are given power over individual rights.

The DMCRA will give that power and the rights back to the consumer.  This bill will restore the historical balance between copyright holders and the end user.  If this bill passes in the next session, the rights that the DMCA threatens will be restored.

It will reaffirm the fair use doctrine in the digital world, making it legal to circumvent a technological measure preventing access as long as the circumvention falls within the guidelines of the fair use doctrine.  It adds exemptions for scientific research which reestablishes the Betamax standard.

The Betamax standard would, in the digital world, allow the manufacture and distribution of software or hardware that can be used to circumvent technological protection measures as long as it has a legitimate use.  The reestablishment of the Betamax standard would put scientists at ease and encourage scientific research to continue as it always has in an open forum style without fear of prosecution for discoveries.

Security can again be developed, unimpeded by the DMCA.  Proper labeling of "copy-protected CDs" will also be ensured.  This new breed of CDs, marketed as regular CDs, have been known to have playback problems and have also crashed quite a few computers with their aggressive protection measures.

This bill has already won the support of many major public entities.  The supporters include: Intel Corporation, Phillips Consumer Electronics North America, Sun Microsystems, Verizon, Gateway Consumer Electronics Association, American Library Association, Association of the American Universities, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Liberties Association, Digital Future Coalition, Consumers Union, National Writers Union, Home Recording Rights Coalition, American Foundation for the Blind, and the Electronic Frontier Foundation.

Many of the supporters are library or writer associations of some kind.  It can be inferred that the libraries and writers may fear the DMCA as the means to an end of an era, an era of free speech and fair use.

The way is now clear - the public's rights are threatened and the DMCRA is their boon.  Libraries and writers across the United States gather under the DMCRA's flag.  Without the DMCRA organizations like the MPAA gain more of a foothold in our society.

Organizations like the Electronic Frontier Foundation have long known the effects of the DMCA and the power it grants to corporations.  The MPAA's actions have paid off, but not in their favor.

The average citizen has at least heard of the DMCA and many have now joined the fight against it.  When the DMCRA is enacted, the power will be returned to the people.

Greetz: Kahlan, Zim, Bill and Ducky.  Save Farscape.