Why the Anti-Circumvention
Clause of the DMCA Should be Repealed and Why DRM May be Malicious and
Anti-Competitive
Karl Reichenberger
Idependent Study with Professor Nicholas
Johnson
April 21, 2006
I. Ongoing
Tension: The Incentive Ends v. the Costly Means
A. The Balancing Act of Copyright
Law
B. The Scales are Tipped;
Digitization and Internet Communications
C. Overcorrection: A Look at Sony
Rootkit Copyright Protection Technology
B. The Anti-Circumvention
Provisions
B. The
DMCA Increases the Costs of Creating New Intellectual Property; Landes &
Posner Applied
IV. The
Anti-Circumvention Clause of the DMCA Improperly Eviscerates Fair Use
VI. When
the Public Cannot Practice Fair Use Without Violating a Law, Free Speech is
Restricted
VII. The
DMCA Enables Malicious and Anticompetitive DRM
A. Law
Should Restrict Malicious DRM Technology Such as the Sony BMG Rootkit Software
C. Recent
DMCA Case Law Both Highlights the Potential Abuses of the DMCA and Provides
Some Hope
1. Chamberlain
Group v. Skylink Technologies
2. Lexmark
International, Inc. v. Static Control Components, Inc.
3. Chamberlain and Lexmark
Highlight the Potential for
Abuse of the DMCA
The Anti-Circumvention Clause of the Digital
Millennium Copyright Act should be repealed. When combined with the latest
Digital Rights Management technology, the DMCA creates an intellectual property
scheme that gives content creators greater protection than necessary to promote
the progress of the useful arts and that restricts the public interests of fair
use and free speech.
Historical statements from Framers of the
Constitution, such as George Washington, evidence an intent for copyright law
to create a marketplace of writings.[1] This
goal of a marketplace of writings was driven by visions of liberty rather than
visions of money.[2]
The Framers were acutely aware of the dangers of overly intrusive government.[3]
Indeed, the Copyright Clause may explicitly mention that rights should vest in
authors because removal of publishing power from the state was thought
necessary to prevent tyranny and to nurture liberty.[4]
Thus, the end aimed for by the Copyright
Clause of the Constitution was more liberty through a marketplace of writings.
The means chosen were exclusive rights to authors and inventors. The Framers were
surely aware that exclusive rights for some would mean restricted rights for
others. However, given the high level of importance the Framers placed on free
speech and liberty, it is unlikely they envisioned or could have predicted the extent
of the tension between private protection and public access their system would
create.
Little in law or life is ever truly new.
The tension between copyright protection and uses of the public has existed
since the beginning of the Copyright Act. Throughout this time, this tension
has been highlighted by the conflict between authors’ media and copy
technology. Advances in print technology threatened to harm printed books and
newspapers, Xerox machines further threatened printed media, audio cassette
tapes and radio, video recorders and television; and the trend continues today.
Recently, however, this tension has accelerated due to unprecedented advances
in personal technology over the past few decades.
Two advances that have most accelerated the
tension between copyright protection and public access are digitization and mass
high-speed Internet access. In all direct ways, these two technologies are no
different than their predecessors; they increase the speed and precision of
copying, while decreasing the cost. However, the state these technologies triggered is new. For arguably the first
time, the average American truly has access to “instantaneous, ubiquitous,
no-cost communication.”[5]
Copies may be transferred over this communications infrastructure, and they are
low cost and perfect.
Copyright holders have never had more to
worry about. Prior to digitization and high-speed internet, a single casual
infringer could do little damage; much effort was required to create and distribute
copyrighted materials en masse. Technical
barriers caused this relatively high level of necessary effort. First, analog copies
are less than perfect, and expensive equipment is required to obtain a high
quality digital-to-analog or analog-to-analog copy.[6] Second,
copies took the form of a physical object; the copy was no more convenient to
handle or transfer than the original. Third, relative to broadband, the
transfer of copied files was difficult and very slow.
Even in the mid 1990s, when CD-Recordable
devices were popular but broadband Internet was not, a CDROM copy of a compact
disk, a digital bit-for-bit perfect copy, took significant time and effort to create
and distribute. For example, prior to college dormitories wired with Ethernet,
a student wishing to distribute the latest top CD to a floor of 50 students
needed to (1) buy a spindle of 50 CDROM disks; (2) go through the copying
(burning) process 50 times; and (3) walk 50 disks down the hall.
Contrast this relatively slow and expensive
copying process to the current situation. Weeks before the latest top CD is officially
released to the public, students at universities across the country can
download a close-to-perfect copy of the disk from the Peer-to-Peer (P2P) utility
du jour.[7]
Copyright owners, understandably, do not like
the current situation. While copyright owners turned a blind-eye to the
Internet for a few early years, they are now acutely aware of the copy enabling
nature of the Internet. Consider the introductory text to a 2002 U.S. Senate
“Content Protection Status Report”: “While positive progress is being made on
many fronts, ever-increasing levels of online piracy may destroy the market for
digital entertainment before it has a chance to be fully birthed.”[8]
The wording of this quote seems to draw on George Washington’s goal of creating
a marketplace of expression. On one hand, copyright owners argue that something must happen to protect their
marketplace from technically savvy teenagers. On the other hand, access
advocates argue that increased protection of copyright will only restrict the
availability of expressive works, shrinking the marketplace the Founders sought
to nurture with copyright.
In an effort to correct the scales, copyright
owners have put their money where their mouths are, successfully lobbying for
the Digital Millennium Copyright Act (DMCA) and developing restrictive copy
protection technology called “Digital Rights Management” (DRM).
On
Mr. Russinovich described the experience with
these words:
Not
only had Sony put software on my system that uses techniques commonly used by
malware to mask its presence, the software is poorly written and provides no
means for uninstall. Worse, most users that stumble across the cloaked files
with a [simple] scan will cripple their computer if they attempt the obvious
step of deleting the cloaked files.[16]
Equally
alarming, Mr. Russinovich discovered that the software (1) restricted use to
Sony Media Player software when played on a Windows PC; (2) distorted the sound
if the user attempted play in different software; (3) restricted his ability to
rip or copy the CD; (4) only allowed transfer to Sony hardware devices (i.e.,
transfer to Apple iPod devices was not allowed); (5) remained in memory at all
times, wasting system resources; and (6) communicated with Sony when the CD was
accessed.[17]
What began as one expert telling the world of
Sony’s DRM technology grew into a story for the mass media as the technical
population of the Internet spread the story. Soon media outlets such as the
Washington Post,[18]
BBC,[19]
Boston Globe,[20]
and Fox News[21]
were covering the story. As more people caught wind of the story, they started expressing
their displeasure with Sony’s actions by posting to Internet forums and commercial
sites, such as News.com that allow users to comment on news stories. Posters to
these boards were calling for the boycott of Sony products for the 2005 holiday
season.[22] Perhaps
most importantly, on Amazon.com’s CD store, users began warning potential Sony
CD buyers of the malicious nature of Sony’s Rootkit DRM. Amazon.com’s CD store
contains a unique feature called “Sales Rank” that ranks products available for
sale based on daily sales. Needless to say, the Amazon.com Sales Rank of the
copy protected CDs dropped rapidly. One story reported that:
Thomas
Hesse, President of Sony BMG's global digital business division, showed up on
NPR to try and sweep the entire thing under the rug: ‘Most people, I think,
don't even know what a Rootkit is, so why should they care about it,’ he asked?
‘The software is designed to protect our CDs from unauthorized copying,
ripping.’[23]
In addition to the dropping Sony Sales Rank
on Amazon and the already negative press regarding the Rootkit technology,
hackers began realizing the potential of Sony’s technology. Hackers soon
developed and began circulating a virus was that used vulnerabilities in Sony’s
code to harm the user’s system and further spread itself undetected.[24]
Antivirus companies began listing the Sony’s code as a virus.[25] This
is the reason Sony BMG cited for recalling all CDs embedded with the Rootkit
DRM.[26]
While Sony BMG was burnt by its overly
aggressive DRM technology on this occasion, they remain committed to DRM.[27] Seemingly,
at the top of Sony’s priority list is to develop a DRM technology that will not
expose consumer’s computers to attacks, but will retain the same relative level
of use and copy restriction.[28] Less
than three months after the Sony Rootkit debacle, Sony tried at least two more copy
protection measures.[29]
One such copy protection measure is still in use.[30] Sony
had not recalled CDs containing this technology, presumably because a hacker
has not yet circulated a virus exploiting the technology. Sony has at least
taken a less covert approach with this technology, including a warning insert
with the CD.[31]
The language of this insert tells customers exactly where they stand,
explaining that the CD installs resident software onto a PC, will not work with
many [PCs], and will not work with many CD players.[32]
The insert then explains that the CD may not be returned except for
manufacturing defects.[33]
These warnings and terms are not included on the exterior of the disk.[34]
With some apparent degree of foresight, the
Recording Industry Association of America (RIAA), the Motion Picture
Association of America (MPAA), the Business Software Alliance (BSA), and the
Association of American Publishers (AAP) “lobbied for the DMCA while it was in
Congress.”[35]
The chief sponsor of the DMCA, Congessman Howard Coble (R-North Carolina), and
his co-sponsor Senator Dianne Feinstein (D-California), both received a lot of
money from the TV, movie, and music industries in 1998.[36]
Opensecrets.org compiles and publishes money spent by industry and lobbying
groups and given to political officials and candidates. The Opensecrets.org
industry category encompassing TV, movie, and music companies was the top
industry category supporting Rep. Coble in 1998.[37] Rep.
Coble was also the second highest recipient of PAC money from TV, movie, and music
in 1998.[38] Senator
Feinstein is also strongly supported by TV, movies, and music, having received
$300,872 from these industries during the 1993 to 1998 time period.[39] Lobbyists
from the TV, movie, and music industries spent $30,942,761 reported dollars in
1998.[40]
The industry did not spend at this level
again until a few years later, in 2001.[41] The
DMCA received little opposition.[42]
Chapter 12 of the Digital Millennium
Copyright Act, titled “Copyright Protection and Management Systems,” contains
an aggressive expansion of copyright embodied in sections 1201 through 1205. Section
1201(a)(1)(A) prohibits the circumvention of “a technological measure that
effectively controls access to a work protected under this title.”[43] Section
1201(a)(2) contains prohibitions against devices designed to accomplish the
circumvention described in (a)(1).[44] Section
1201(a)(3) defines “circumvent a technological measure” as “to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass,
remove, deactivate, or impair a technological measure, without the authority of
the copyright owner.”[45]
Moreover, “a technological measure ‘effectively controls access to a work’ if
the measure, in the ordinary course of its operation, requires the application
of information, or a process or treatment, with the authority of the copyright
owner, to gain access to the work.”[46] Section
1203 provides for civil remedies that include actual or statutory damages, with
statutory damages equaling up to $2,500 per act of circumvention.[47] Section
1204 provides for criminal offenses and penalties if the circumvention was willful
“and for purposes of commercial advantage or private financial gain.”[48]
One important point to note before
continuing is that section 1201 of the DMCA does not expressly expand any rights
of the copyright owner.[49] Rather,
section 1201 only expressly expands the methods of enforcement of copyright
owners’ basic rights. Title 17, Section 106 of the United States Code defines a
copyright owner’s exclusive rights in copyrighted works.[50] Nothing
in section 1201 of the DMCA explicitly expands these rights. However, this
Paper will frequently refer to the DMCA as an expansion of copyright law or copyright
protection.[51] Additional methods of enforcement,
including high statutory damages and criminal penalties, may only increase the
effectiveness of the copyright laws.[52]
At least one commentator has characterized the DMCA as effectually creating “an
anti-circumvention right that is materially different from and much more
sweeping than the underlying copyright.”[53] Regardless
of how one characterizes the DMCA, either as an expansion of copyright or as a
simple increase in enforcement means, the result is the same: the consumer has
fewer rights and the copyright owner is more protected from infringement.
Because of the difficulty of curbing
widespread copyright infringement,[54]
business has increasingly looked to private copy protection measures. The
industries supporting these measures and the DMCA lovingly call the technology
“Digital Rights Management” (DRM). While these industries and legislators
primarily sell DRM to the public as a means to keep
DRM technology, even in the absence of
enforcing laws, provides a certain level of protection for copyright owners. Many
of the consuming public will neither be able nor motivated enough to break DRM
protection. The time and effort necessary to research and break DRM will generally
deter casual copyright infringers. While there will always be a certain
population of the public that will infringe copyright regardless of technical
and legal protections,[57]
DRM technology provides copyright owners with more practical profit protection
than mere copyright law. In other words, at least some people will not infringe
copyright due to DRM technology.
However, when one combines the practical and
deterrent effects of DRM technology with the civil and criminal penalties of DMCA
circumvention, the result provides a powerful sword for copyright owners
wishing to strike down would be infringers of copyright. The recent Sony BMG
Rootkit scandal highlights the severity of the problem. DRM technology plus the
DMCA present a serious threat to the public domain and consumer rights.
All copy protection can and will be broken.
The public masses will always win the copy protection arms race. Consider the
“unbreakable” copy protection of the Microsoft Xbox 360, a closed and proprietary
platform developed by the richest software company in the world.[58] Within
weeks of the release of the Xbox 360, a team of hackers cracked into the
software that runs the system and developed an extractor tool that allows savvy
users to copy games.[59] In the same vein, distributors of
pirated music will continue to pirate and distribute copyrighted goods. The
international nature of the Internet makes controlling hacking groups generally
beyond the reach and capability of the DMCA. Bypassing the Content-Scrambling
System (CSS) measures of DVDs has been illegal and determined to be illegal
under the DMCA and copyright infringement causes of action.[60] Yet
it is still possible to download and install software to copy commercial DVDs
in a short time period.[61]
The pirate is not harmed by the DMCA; the consuming public is harmed by the DMCA. Pirates of copyrighted goods are already facing serious legal and financial problems if they are caught. Section 106 has always condemned pirates’ actions. In other words, the DMCA harms dedicated pirates in no way other than increasing the potential penalties of their actions. The DMCA harms the consuming public by limiting fair uses, limiting property rights such as first sale, reducing the utility of copyrighted goods bought, and harming free speech. Given these realities, how can the DMCA promote the progress of science and the useful arts?
The United States Constitution, Article I,
Section 8, Clause 8, grants Congress the “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.”[62] We
know little about the intent of the framers, as the Convention record contains
no record of an introduction or debate.[63]
However, scholars have developed several possible historical, philosophical,
economic, and public policy justifications for copyright law.[64]
These may be used to help evaluate expansions of copyright law such as the
DMCA.
While these topics span multiple books and
articles, a few observations are useful. First, the Copyright Clause is
specific compared to other Constitutional grants of power to Congress.[65]
Second, the text, context, and record of the Copyright Clause and its debates evidence
thought by the Framers that the progress of knowledge could be furthered by the
creation of new expressive works.[66]
Third, suppression of copying is acceptable when it enhances the market for new
creative works.[67]
Fourth, copyright law enhances the market for new creative works by providing a
mechanism through which creative works may be commodified.[68]
As this Paper recognizes, the most
universally recognized justification for copyright protection is an incentive it
provides for authors to invest in the production of creative works.[69]
In a recent book, William M. Landes and Richard A. Posner use this basic
justification to present a formal economic model for analyzing copyright
protection.[70] They particularly identify the
“tradeoff between the incentive and cost-of-expression effects of varying
levels of copyright protection.”[71]
They state that a certain level of “copyright protection (z) simultaneously determines the price of a copy (p), the number of copies produced by the
creator of the expressive work (x),
the number of unauthorized copies (y),
the economic returns to creating a work (R),
and the total number of works created (N).”[72]
This Paper will not belabor the intricacies of the model Landes and
Posner derive, but will highlight a few relevant points. First, copiers’ costs
will rise with increased protection z.[73]
These costs will rise regardless of whether the copying is lawful, fair use or
otherwise, or unlawful.[74]
Second, an author’s gross profits, will increase with increased protection z.[75]
Third, and possibly presenting the first counter-intuitive point, the greater
copyright protection z is, the higher
the author’s cost of expression is.[76]
This is best explained by the Landes & Posner, “[i]f copyright protection
increases, the [revenue] curve will shift upward . . . but so will the supply
curve N of new works because
expanding copyright protection by diminishing the public domain increases the
costs of creating new intellectual property.”[77]
These costs of expression that increase as copyright protection increases
include transaction costs, acquisition costs, and substitution costs.[78]
Blending these components together, the most important teaching from the Landes & Posner book is that optimal copyright protection does not necessarily equal maximum copyright protection.[79] “[S]trengthening copyright protection beyond [optimal z] would [continue to] increase the incentive to create more works . . . but would not be worth the costs in reduced welfare per work, the higher costs of expression, and the greater administrative and enforcement costs.”[80] By increasing the level of effective copyright protection for the firms that use copy protection measures, Congress bolsters these firms’ ability to retain high prices.[81] These high prices, however, are not without cost; and when cost becomes too high, increased protection is no longer socially valuable.[82]
The result seems clear when one applies the
broad-reaching scope of the DMCA and DRM technology to Landes & Posner’s
framework. While conclusions regarding the behavior of the model Landes &
Posner propose cannot be reached absent extensive empirical work, it seems that
the DMCA’s costs to society are high.
While a precise definition of transaction
costs is difficult to articulate,[83]
categories of transaction costs include, among others: “identification of contracting parties, information
acquisition and production, policing of agreements, detection of breach,
enforcement of agreements, valuation difficulties, and negotiation costs.”[84] Costs such as acquisition, substitution, and
technical costs, also increase with the DMCA.[85]
These all drive up the cost of creating new intellectual property.[86]
New intellectual property necessarily draws
upon old intellectual property.[87] No
person brings pen to paper without considering other works. It follows that
creators of new intellectual property depend on a free-flowing marketplace of
existing intellectual property and ideas.[88] Patent
law supports this marketplace of intellectual property and ideas by publishing
patents and patent applications, requiring adequate disclosure and notice to
the public before property rights are ever granted.[89] Copyright
previously supported the free-flowing marketplace of existing intellectual
property and ideas via the concept of fair use.[90]
The DMCA harms fair use, and harms the free-flowing marketplace of existing
intellectual property and ideas.
The DMCA creates an additional legal and
informational barrier between existing works and the creation of new
intellectual property. The DMCA adds criminal and civil bite to all uses except
the uses the digital rights management technology allows. Thus, a responsible
and law abiding downstream creator of intellectual property must delay at least
some time period to evaluate her rights and her options. This delay, however
small, adds resistance to a free-flowing marketplace of intellectual property
and ideas. Moreover, the more responsible the downstream creator is, the higher
her costs will be. Any significant delay will affect her marginal profits
negatively.[91]
The delay may also be accompanied by actual costs in the form of legal or
research fees.[92]
Even after the
buying decision, the DMCA operates to slow and restrict the market for
copyrighted goods. The DMCA validates and encourages DRM technology.[93] This DRM technology
adds technical delay and expenses. Some DRM technology, such as Sony’s Rootkit
DRM,[94] may restrict use to
only applications sponsored by the copyright owner. If the creator of new
intellectual property would like to use some different application or
technology with the copyrighted work, she will incur further delay and cost
searching for a substitute supply or a substitute good. If the creator of new
intellectual property decides to go ahead without finding a substitute good,
she adds more “legal risk” to her venture.[95] Increased risk is
costly and can only deter entrepreneurs.[96]
This Part has highlighted potential costs of
the DMCA that may render the DMCA a piece of law that does more harm to the progress
of science and the useful arts than good. While a precise accounting of the social
profits versus social costs of the DMCA is impossible, the costs should at
least be considered. This Author was able to find no serious evidence that
Congress seriously considered anything but profits when they drafted the DMCA.
While deference to Congress would certainly be granted in a court of law, the
“court of public opinion” should frown on Congress’s inadequate debate. This Author
is of the opinion that the list of potential costs is long enough and real
enough that the DMCA does more harm to the progress of science and the useful
arts than good. Congress should repeal the DMCA, erring on the side of the
public, the free-flowing marketplace of ideas, and new creators of intellectual
property.
The fair use doctrine, in terms of the Copyright
Clause, “permits courts to avoid rigid application of the copyright statute
when, on occasion, it would stifle the very creativity which that law is
designed to foster.”[97]
Fair use is codified in section 107 of the 1976 Copyright Act.[98] Section
107 reads, in part:
Limitations on exclusive rights: Fair use
Notwithstanding the
provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining whether the
use made of a work in any particular case is a fair use the factors to be
considered shall include—
(1) the purpose and
character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes;
(2) the nature of the
copyrighted work;
(3) the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole; and
(4)
the effect of the use upon the potential market for or value of the copyrighted
work.[99]
While the fair use doctrine is codified in section
107 of the 1976 Copyright Act, the doctrine remains open to judicial
flexibility.[100]
Indeed, scholars have noted that the legislative history of section 107
displays an intent to “allow the doctrine’s continuing development through the
case law and its adaptation to changing times and technology.”[101]
The DMCA seems to ignore this intent.
If circumventing overly restrictive DRM
technology is necessary to the practice of fair use rights, and circumventing
DRM is illegal per the DMCA, then the practice of fair use is illegal.
This simple statement of the effect the DMCA
has on fair use highlights the primary way in which the DMCA increases the cost
of creating new intellectual property. Consider the
musician of Campbell v. Acuff-Rose Music, Inc.[102] In Campbell, a rap group named 2
Live Crew used parts of the 1960s hit “Oh Pretty Woman” in a parody of that
song named “Pretty Woman.”[103]
In
Now, consider even
more desirable facts: the musician now seeks to use a single drum sound from
that song, not even enough sound to conjure up the original sound or song in
the mind of the listener. This drum sound is exactly what he desires a drum in
his new song to sound like, and he only seeks to use it a few times. Even
considered by a more conservative Court, this use would likely be considered
fair use. More importantly, this example highlights how a low cost fair use of
present intellectual property may be leveraged to create new intellectual
property.
This fair use would
not be possible if
Must
The RIAA is not shy about using the tenuous
“starving artist” argument (i.e., that the DMCA is necessary because piracy
causes artists to go poor).[108] However,
new creators of intellectual property likely have less money than the artists selling
copy protected works. Copy protection costs money; the artist is likely already
successful if her CD is sold with copy protection. With the DMCA, Congress has
chosen the financial interests of already successful artists over the financial
interests of new creators of intellectual property.
The financial interests and incentives of
creators of new intellectual property are not the only important interests
protected by the fair use doctrine. For example, parody, criticism, and
rebuttal frequently make fair uses of copyright. Economic interests aside, these
fair uses are important to the fiber of our democracy.
Congress must have been keenly aware that the
DMCA would negatively affect fair use rights. However, rather than more
carefully drafting the main anti-circumvention provisions, Congress chose to
create a clumsy list of exceptions. These exceptions include: a section 1201(a)(1)(A)
exception for non-profit libraries, archives, and educational institutions,[112]
an exception of all of section 1201 for law enforcement, intelligence, and
other government activities,[113]
an unclear reserve engineering exception to section 1201(a)(1)(A),[114]
a narrow encryption research exception,[115]
and exceptions for protecting personally identifying information[116]
and conducting security testing.[117] While
this list of exceptions seems long and insightful at first glance, it ignores
the fair use rights of the general public and new creators of intellectual
property. This result makes sense when one does the simple math of adding (a)
the lobbying and interests of the entertainment industry for the DMCA; and
subtracting (b) the most capably vocal opponents to the DMCA (i.e., libraries,
local governments, education, etc.). This “equation,” in more general terms,
is: (Broad DMCA Anti-circumvention) - (Exceptions for Vocal Interests[118])
= (a Broad DMCA Anti-circumvention Remainder for Non-Vocal Interests).
The DMCA’s Clause that Claims Fair Use is
Unaffected by the DMCA is Mere Lip Service, at Best.
Section 1201(c) of the DMCA, titled “Other
Rights, Etc., Not Affected,” reads in part: “(1) Nothing in this section shall
affect rights, remedies, limitations, or defenses to copyright infringement,
including fair use, under this title.”[119] There
are a few notable features of this clause. First, this clause is not an
exception to section 1201 anti-circumvention. Second, this clause is not a
defense to section 1201 anti-circumvention. Third, no part of section 1201(a)
or (b) anti-circumvention depends on a finding of copyright infringement. When
one considers these features, the bottom line is clear: this clause regarding
fair use says nothing. While the DMCA may not directly legally affect fair use, the real and practical effect is
harmful. If a DRM technology allows no fair use access, and the DMCA makes the
circumvention of the DRM technology illegal, practicing fair use on that work
will be illegal.
The Purported Difference Between Access and
Protection is Untested and Inadequately Ameliorates the DMCA’s Damage to Fair
Use.
The purported
difference between section 1201(a) and section 1201(b) is in the word “access” in
section 1201(a) versus the word “protection” in section 1201(b). Recall that section
1201(a)(2) includes the language “[n]o person shall manufacture . . . that -
(A) is primarily designed [] for the purpose of circumventing a technical
measure that effectively controls access to a work protected under this title.”[120] Section
1201(b), on the other hand, includes the language “no person shall manufacture
. . . that – (A) is primarily designed [] for the purpose of circumventing
protection afforded by a technological measure that effectively protects a
right of a copyright owner under this title in a work or a portion thereof.”[121] The
Report from the Judiciary Committee gives great importance to this difference
in language.[122]
The Report explains: “[Section 1201(a)(1)(A)] does not apply to the subsequent
actions of a person once he or she has obtained authorized access to a copy of
a work protected under title 17, even if such actions involve circumvention of
other types of technological protection measures.”[123]
Remember, a measure controls access “if the measure, in the ordinary course of
its operation, requires the application of information, or a process or
treatment, with the authority of the copyright owner, to gain access to the
work.”[124]
This language, again, seems like cleverly written flair[125]
meant to distract opponents of the DMCA. The definition of “controls access”
reads like a direction to copyright owners of how to write DRM software for
maximum protection. The direction, while less than clear, seems to teach the
following: (a) if a technical measure only controls subsequent copying, section
1201(a) will not be implicated; while (b) if a technical measure controls
access (with or without protections that control subsequent copying), section 1201(a)
will be implicated. So, copyright owners of the world, tie together access and
protection for maximum technical and legal protection. In other words, always depend
basic access on the intended use of the user. Sony’s Rootkit
protection did this. In pseudo-code:
If [intended use valid] then grant [access to
intended use only].
If [intended use NOT valid] then deny all
access.
Repeat when any access requested.
Such
a measure, like Sony’s, would require the “application of information, or a
process or treatment, with the authority of the copyright owner, to gain access
to the work.”[126]
A court would be free to use Congress’s purported intent (per the Report) to
help judge any specific case, but it appears that Sony’s scheme and its
circumvention, even if practiced on a perfectly legal CD, would fall under section
1201(a) and be actionable. Regardless of the final outcome of such a
hypothetical lawsuit the deterrent effect on fair use promises to be high.
Copyright owners have the exclusive right to
distribute “work[s] to the public by sale or other transfer of ownership, or by
rental, lease, or lending.”[127]
While the distribution right generally operates, the first sale doctrine
provides an important limitation on the distribution right. Title 17, Section
109(a) of the United States Code provides: “[n]otwithstanding the provisions of
section 106(3) . . . the owner of a particular copy or phonorecord lawfully
made under this title . . . or any person authorized by such owner, is
entitled, without the authority of the copyright owner, to sell or otherwise
dispose of the possession of that copy or phonorecord.”[128]
Scholars have noted that in close cases the
courts “often side with the defendant when the rights of the copyright owner
encroach on the right of [a downstream] owner to dispose of physical copies of
the work.”[129]
Section 109 results in an important limit to authors’ distribution rights and
helps to create secondary markets for copyrighted goods.
Even the Copyright Office has noted the
potential damage to the first sale doctrine that the DMCA plus DRM technology
poses. They “recognized” in a 2001 report on the DMCA that the “tethering” of a
copyrighted good to one machine or device “could have serious consequences for
the operation of the first sale doctrine.”[130] Nevertheless,
the Copyright Office suggests no legislative change because the use of such
tethering technology, “does not appear to be widespread at the present time, at
least outside the context of electronic books.”[131] Apparently
a harmful provision must create widespread problems in more than one important
market for the Copyright Office to suggest any corrective action. Indeed, little
should be expected from the Copyright Office; its conclusion that the first
sale doctrine does not apply to digitally transmitted goods shows a blanket
disregard for enabling robust markets of digital goods.[132]
Going back to the Landes & Posner
model,[133]
this impediment to the secondary market for copyrighted goods allows the
copyright owner to increase prices, but simultaneously decreases the end user’s
utility of the copyrighted good, increases transaction costs, and may increase
the cost of creating new intellectual property.[134] The
Copyright Office defends its positions by asserting that the specific and
narrow mechanics of the first sale doctrine render the Office’s conclusions
immune from arguments that draw on the Copyright Clause.[135] This
might be correct in the judicial-constitutional-law sense, but certainly should
not exempt an administrative body from weighing potentially harmful means
against the constitutionally mandated ends. In other words, regardless of the
precise purposes behind sections of the Copyright Act, the “progress of science
and the useful arts” should remain a benchmark against which all sections of
the Copyright Act should be evaluated.[136] If
a section or interpretation of a section could result in more overall harm than
good to the progress of science and the useful arts, then legislators and
officials at the Copyright Office should at least consider this harm prior to
the harm becoming widespread.[137]
According to the Copyright Office, the
“precise purposes”[138]
of the first sale doctrine were (a) to avoid restraints on the alienation of
physical property and (b) to prevent copyright owners from controlling both the
market for initial sales and aftermarket resales.[139] The
Copyright Office hangs its entire argument that the first sale doctrine does
not apply to digitally transmitted goods on the word “physical.”[140] Since
the year electronic storage was invented, this distinction has grown more
meaningless, and this trend will continue. Is personal property stored on a
personal computer not personal property? When software or music may be burned
or ripped to and from CDROMs in minutes, the piece of plastic that separates a
digital copy from a physical copy seems empty and meaningless. A tune purchased
online is personal property that may be alienated just as a CD purchased at
Wal-Mart. As more commerce occurs online where a digital first sale doctrine
does not exist, the more copyright owners will be able to restrict the
availability and affordability of copyrighted goods.[141]
Legislators and administrative bodies such as the Copyright Office should rethink their position on the DMCA; both for DRM protected works that are first sold as physical goods and for works first solid in the digital world. The “precise” purposes of the first sale doctrine as well as the broad purpose of the Copyright Act are offended by the DMCA. A repeal of the anti-circumvention clause of the DMCA and the inclusion of digital works into the first sale doctrine would lift the most significant barriers that stand in the way of robust and productive secondary markets for copyrighted digital goods.
Fair use is necessary for free speech to
thrive in a digital society. The DMCA threatens free speech by narrowing the
scope of fair use to include only those fair uses the copyright owner
contemplates when she creates the DRM software surrounding her copyrighted
work. This is an argument that the public must believe in, present to
legislators, and even continue to fight in the courts. Free speech case law,
especially involving the DMCA, provides only little hope for a court win on
such an argument.
In the 2002 case United States v. Elcom Ltd., the defendant argued that the DMCA
violated free speech rights; the court quickly dismissed Elcom’s argument.[142] This
case provides a look at the hurdles to making a free speech argument against
the DMCA. Elcom sold a software program that allowed users to remove DRM
restrictions from Adobe PDF and eBook files.[143] The
While the First Amendment was triggered in
the Elcom case, and software was
affirmed to be capable of consituting expressive speech, these were the only
free speech victories for Elcom. Because the DMCA and Congress’s intent in
passing the DMCA are content neutral,[148]
the court decided that only intermediate, rather than strict, scrutiny should
apply.[149]
The court continued to apply intermediate scrutiny, which holds a statute
constitutional if it “promotes a substantial
governmental interest that would be achieved less effectively absent the
regulation and the means chosen do not burden substantially more speech than is
necessary to further the government's legitimate interests.”[150] The court had little trouble determining that thwarting
piracy was a substantial government interest,[151] but spent slightly more time evaluating the means.[152]
It is the means
analysis that the court incorrectly decided. The DMCA burdens substantially more
speech than is necessary to further the government’s interests in preventing
piracy. The court stated, “[t]he absence of effective technological
restrictions to prevent copyright infringement would inevitably result in even
more rampant piracy, with a corresponding likely decrease in the willingness of
authors and owners of copyrighted works to produce them in digital form or make
the works available on-line.”[153] First, in the
absence of the DMCA, nothing would prevent copyright owners from “imposing
effective technical restrictions to prevent copyright infringement.”[154] Second, old-fashioned
contributory copyright infringement, NOT
the DMCA has brought down two sources of mass piracy, Grokster[155] and Napster[156] P2P services. Third,
prior to the DMCA, digital works were thriving. The court’s statement that the
absence of the DMCA would likely decrease the willingness of authors to post
digital works online seems baseless. With the increasing popularity of the
Internet, where new markets are opening up and buckets of money are waiting to
be made with successful business models, that authors of digital works would stay
away is tenuous, at best. Moreover, recent events seem to show that the DMCA
and DRM may be having the opposite effect. These schemes represent confusing
hurdles for consumers. Digital works protected by the DMCA and DRM have been available via the Internet.
The authors of digital works have put works on the Internet. The consumers have
not bought the works.[157] It would seem that
the actors stalling the placement of more digital works online are not the
authors, but rather the consumers. The consumers may be rejecting digital works
because of overly restrictive and
unimaginative DRM backed by the DMCA. The claim that the DMCA is necessary for effective DRM and that
effective DRM is necessary to provide
incentive for authors to publish digital works requires multiple leaps of
logic. This tenuous claim of effectiveness, balanced against the DMCA’s burden
to free speech, burdens substantially more speech than is necessary.
Elcom further argued that the DMCA does not pass
free speech review because the DMCA effectively eliminates fair use.[158] Since
many fair uses constitute protected expression, the anti-trafficking
provisions of the DMCA, argued Elcom, “do not respond precisely to the
substantive problem which legitimately concerned Congress and that it therefore
does not comport with the First Amendment.”[159] Elcom had it right. The court, without actually evaluating
the exemptions contained in 1201, simply noted that there are many exemptions,
so the DMCA must be sufficiently tailored.[160] The following paragraph is too amusing in its unedited form
not to quote:
[T]he DMCA does not
“eliminate” fair use. Although certain fair uses may become more difficult, no
fair use has been prohibited. Lawful possessors of copyrighted works may
continue to engage in each and every fair use authorized by law. It may,
however, have become more difficult for such uses to occur with regard to
technologically protected digital works, but the fair uses themselves have not
been eliminated or prohibited. For example, nothing in the DMCA prevents anyone from
quoting from a work or comparing texts for the purpose of study or criticism.
It may be that from a technological perspective, the fair user my find it more
difficult to do so-quoting may have to occur the old fashioned way, by hand or
by re-typing, rather than by “cutting and pasting” from existing digital media.
Nevertheless, the fair use is still available.[161]
In other words, the court in Elcom recognized that hundreds of millions of free speech enhancing fair uses are effectively made more difficult and more expensive by the DMCA; the court not only admits this, it provides an illustration. However, these difficulties and expenses are apparently not enough evidence that the means chosen by Congress burden substantially more speech than is necessary to further the government’s legitimate interests in padding the pocket books of the record industry. Forgive this author’s sarcasm, but Landes & Posner’s model[162] combined with the Elcom court’s line of thought reveal the DMCA for what it is; a subsidy to current intellectual property owners at the expense of the public and would-be creators of new intellectual property.
While some computer laws may be available to
attach malicious DRM distributions,[163]
the cloaked and rights-encroaching nature of the Sony BMG DRM method begs for
clear rules marking the boundaries of acceptable DRM intrusion. While the
outside of the CD case was marked as copy protected software, buyers of the
Sony BMG software had no notice that they would be unable to uninstall the
software that would always be taking resources and posing a security risk to
their systems. Moreover, Sony provided no notice that the customer would be
required to use the Sony Media Player when played on a PC. When users attempted
to uninstall the Sony BMG software, their computers were harmed; CDROM drives
were rendered inoperable.
One would think that a license to harm
consumers’ personal property prior to a trial because of mere copyright
infringement[164]
or acts that may look like copyright infringement is an idea that would never
seem reasonable. However, Senator Orrin Hatch believes that copyright owners should
be able to legally destroy a customer’s computer if the owner believes the
customer is improperly copying the file.[165]
Some copyright owners would likely applaud such a response. This strengthening
of copyright owners’ hammer would surely reduce the amount of copyright
infringement and allow copyright owners to charge higher prices. Such a radical
strengthening of copyright enforcement, however, would also radically increase
the cost of creating new intellectual property and encroach upon the rights of
the consuming public.
Beyond the malicious and intrusive nature of
the Sony BMG DRM technique, Sony required customers of the CD to use Sony’s
player software to play the CD and required customers to use their Walkman
hardware to play the music on a portable digital device. This restriction
shocked many users of the popular Apple iPod devices and fans loyal to other
media players.
Under formal antitrust law the Sony Rootkit
behavior is most similar to an antitrust tying arrangement. A tying arrangement
“is a sale or lease of one product (the ‘tying product’) on the condition that
the buyer or lessee take a second product (the ‘tied’ product) as well.”[166] The
most common test for an impermissible tying arrangement under either section 1
of the Sherman Act or section 3 of the Clayton Act is generally: (a) “the
scheme in question involves two distinct items and provides that one (the tying
product may not be obtained unless the other (the tied product) is also
purchased”; (b) “the tying product possesses sufficient economic power
appreciably to restrain competition in the tied product market”; and (c) “a
‘not insubstantial’ amount of commerce is affected by the arrangement.”[167]
The first element should be met by Sony
BMG. The CD is the tying product and is a distinct product from the tied media
player embedded on the CD. While the “items” are not physically separate, they
could be; and there is a separate market for media players. This analysis is
analogous to the tying arrangement the European Union found Microsoft guilty of
in recent years.[168] The
E.U. found that Microsoft had leveraged its monopoly power in the operating
system market by tying the Windows Media Player to its operating system
software.[169]
This tying occurred in spite of the fact that Windows Media Player is included
on the CDROM that contains the Windows Operating System. In fact, Sony BMG’s
actions are more egregious than those of Microsoft. Not only is the Sony Media
Player included with the CDROM, but PC users are forced to use the Sony Media Player if they would like to play the
music contained on the CD on their PC.[170]
The market power test would be the most
difficult to meet for a party suing Sony BMG. Sony BMG is the second largest
distributor of recorded music.[171] In
2005, Sony BMG controlled 20.5% of the global recorded music market.[172] This
market share jumps
A party seeking to sue Sony BMG would not be
without argument on the market power element, however. Some courts have found
per se illegal tie-ins, varying definitions of market power, and others presume
market power when the tying product is copyrighted.[175] For
example, in Digidyne Corp. v. Data
General Corp., the court quoted the Supreme Court, holding “requisite
economic power is presumed when the tying product is patented or copyrighted.”[176] Also, the
finding of market power does not entail only a formalistic look at the market
share percentage. The same Supreme Court case that found a market share of 30%
insufficient to find market power, also applied less than a formalistic
approach. They cited the Areeda and Turner Antitrust treatise to define market
power leverage as “a supplier's ability to induce his customer for one product
to buy a second product from him that would not otherwise be purchased solely
on the merit of that second product.”[177] Under this
definition, and remembering that the tying CDs are unique copyrighted works,
market power may exist. Individual artists are often only available
from one distributor. For example, while customers might normally be willing to
substitute away from one music distributor to the other, or from one PC
manufacturer to another, they may not be so willing to substitute one
copyrighted work for another.
In 2004, two cases were decided that provided
a narrow interpretation of the Anti-Circumvention clauses of the DMCA. The
facts of these cases highlight ways in which copyright owners may abuse the
overly broad language of the DMCA to harass competitors. The holdings of these
cases provide hope that at least the courts, if not Congress, recognize the
dangerous over breadth of the language of the DMCA.
In Chamberlain Group v. Skylink Technologies,[178]
a garage door company named Chamberlain sued competitor Skylink,
alleging, among other things, that Skylink violated DMCA section 1201(a)(2).[179]
Chamberlain developed a complicated code scrambling and rolling program for its
garage door opener system.[180]
Skylink developed an aftermarket universal garage door opener that only
simulates the rolling, but effectively bypasses Chamberlain’s security code and
opens Chamberlain’s doors, once programmed to do so by the user.[181]
Chamberlain did not allege a copyright violation.[182]
Chamberlain only alleged that because the garage opener and transmitter
include computer programs protected by copyright law, Skylink is liable for
violating the DMCA because its universal opener bypassed Chamberlain’s
technical measures that control access to those programs.[183]
The Federal Circuit in Chamberlain frankly
stated that, “Chamberlain's interpretation of the DMCA would [] grant manufacturers
broad exemptions from both the antitrust laws and the doctrine of copyright
misuse.”[184] The court
concluded that section 1201 “prohibits only forms of access that bear a
reasonable relationship to the protections that the Copyright Act otherwise
affords copyright owners.”[185] Along these
lines, the court asserted a series of proofs a plaintiff must show to properly
allege a section 1201(a)(2) violation.[186] While the
majority of the language tracks that of section 1201(a)(2), the court held that
a plaintiff must also allege circumvention of a copy protected work, “that
third parties can now access [] without authorization, in a manner that
[] infringes a right protected by the Copyright Act.”[187] The Federal
Circuit affirmed summary judgment in favor of Skylink, the defendant.[188] Chamberlain
neither showed a lack of authorization “nor
explained how the access provided by the Model 39 transmitter facilitates the
infringement of any right that the Copyright Act protects.”[189]
Lexmark, the
manufacturer of laser printers, attempted to control the downstream market for
its toner cartridges through the DMCA anti-circumvention clauses.[190] Lexmark began
producing toner cartridges embedded with microchips designed to only allow
Lexmark to sell and refill the toner cartridges.[191] When Static
Control Components (SCC) mimicked Lexmark’s microchip design to create
competing generic cartridges, Lexmark sued, alleging a violation of DMCA section
1201.[192] Lexmark based
this claim on an authentication sequence that occurred between the toner
microchip and the printer, and two copyrighted programs embedded on the
microchip that SCC copied.[193] Lexmark viewed
the authentication sequence as the technical measure SCC circumvented to obtain
access to the copyrighted programs embedded on the chip.[194]
The
Sixth Circuit held that the authentication sequence neither provides access to
nor protects the code on the printer cartridges.[195] Rather, the
court reasoned, the purchase of the Lexmark printer allowed access to code on
any compatible printer cartridges.[196] The court
looked to Congressional History to conclude that Congress did not intend to
“prevent consumers from using consumer goods while leaving the copyrightable
content of a work unprotected.”[197]
Congress enacted
the anti-circumvention clauses of the DMCA to battle massive piracy and to
update the
It
seems they may have. First, the Sony Rootkit copy protection measures
effectively control access to a copyrighted work. Secondly, the Sony Rootkit
protection protects copyrighted works clearly unlike those of Chamberlain and
Lexmark. The music contained on the CD is expressive and original, and is the
precise work the copy protection protects. Third, the Sony Rootkit scheme may
actually prevent casual piracy of the copyrighted work. Sony could certainly
argue with a straight face that their measures were an honest attempt to curb
the massive piracy that Congress intended to battle with the DMCA. The Sony
Rootkit scheme, while perhaps a sad indication of the direction we’re headed
with respect to consumer rights, does provide a good illustration of the
dangers of the DMCA. Sony BMG might have been able to leverage the DMCA to
anti-competitively increase its position in the markets for software and
hardware media players.
The Anti-Circumvention Clause of the Digital
Millennium Copyright Act should be repealed because when combined with the
latest Digital Rights Management technology, it creates an intellectual
property scheme that gives content creators greater protection than necessary
to promote the progress of the useful arts and that restricts the public
interests of fair use and free speech.
The Harm to Science and the Useful Arts
Outweighs the Benefits the Current Anti-Circumvention Clause Provides
Restricting fair use, encumbering free
speech, further increasing the costs of creating new intellectual property, and
enabling anti-competitive behavior are unacceptable prices to pay for slightly
more legal protection of copyright. In the Internet era, an impressive amount
of innovation and economic development happens when individuals on a forum,
chat room, user’s group, or newsgroup come together to develop a new technology
or form a new business in a garage. Traditional fair use principles would allow
these entrepreneurs and intellectuals to study, adapt, and use copyrighted
works to further the development of their own projects. By making illegal the
mere unwrapping of the copyrighted work and simple tools to help this
unwrapping, we require honest entrepreneurs to either (a) risk civil and
criminal sanctions under the DMCA or (b) negotiate a less restrictive license
with the copyright holder. Option (a) can only harm innovation, investment and
economic development. Option (b) is not only unrealistic, but raises
transaction costs to a level that is likely unbalanced by the added investment
incentive the DMCA provides to a copyright owner.
Private Control Over Copyrighted Content Has
Increased; The DMCA Anti-Circumvention Clause is No Longer Necessary to Promote
the Progress of Science and the Useful Arts
Technology has advanced since the dawn of the
Internet. DRM technology is here to stay, and copyright owners now have more
copy control and copy deterrent mechanisms than ever. When a work is copy
protected with restrictive DRM technology, the vast majority of the population has
neither the means nor the motivation to break the DRM. Those that are motivated
and have the means will do so regardless of a law like the DMCA. The DMCA does
not attack the ends it is aimed at (i.e., the mass piracy), but rather means
that may also be used for productive purposes. In the absence of the DMCA, the
rights of copyright owners will remain protected by copyright law, DRM technologies,
and contract law. The marginal increase in protection the DMCA effectively
provides copyright owners does not justify its societal negatives. Thus, the
anti-circumvention clause of the DMCA should be repealed.
[1] Marci A. Hamilton, The Historical and Philosophical Underpinnings of the Copyright Clause 10 (1999).
[2]
[3]
[4]
[5] Howard
Johnson, The Greening of Nicholas Johnson,
Rolling Stone,
[6] Prior to the Internet, copying and distribution could not be accomplished easily in the digital domain, but was rather relegated to the analog domain. In basic terms, a digital file is stored as a large string of binary information: 0s and 1s. Analog information, on the other hand, is represented by electromagnetic waves. A compact disc is an example of a digital medium, whereas VHS or cassette tapes are examples of analog medium. Analog copying necessarily results in less than perfect copies. Each subsequent analog copy results in an additional level of information loss. For example, the copying of a compact disk onto a tape will result in some small level of loss, but by the fifth copy, depending on the equipment and media used during each copy, the copied material may be significantly degraded.
[7] Ryan Roemer, Trusted Computing, Digital Rights Management, and the Fight for Copyright Controls on Your Computer, 2003 UCLA J. L. & Tech. 8 (2003).
[8] Content
Protection Status Report,
[9] Few experts are more qualified to comment on the windows operating system than Mr. Russinovich. Mr. Russinovich earned a B.S., M.S. and Ph.D. in computer engineering, and is Chief Software Architect and co-founder of Winternals Software, a company that specializes in advanced system software for Microsoft Windows. Mr. Russinovich has co-authored two versions of an extensive book named Windows Internals, regularly delivers seminars to public and private entities, including Microsoft itself, and serves as senior contributing editor to Windows IT Pro magazine.
[10]
Lorraine Woellert, Sony’s Copyright
Overreach, Bus. Wk.,
[11] Mark
Russinovich, Sony, Rootkits and Digital
Rights Management Gone Too Far, Mark’s Sysinternals Blog,
[12]
[13]
[14]
[15]
[16]
[17]
[18] Brian Krebs, Sony Raids Hacker Playbook, Washingtonpost.com (Nov. 2005) at http://blogs.washingtonpost.com/securityfix/2005/11/sony_raids_hack.html
[19] Viruses
Use Sony Anti-Piracy CDs, BBC News,
[20]
Hiawatha Bray, Security firm: Sony CDs
secretly install spyware, The Boston
Globe,
[21] Paul F.
Roberts, Sony BMG Hacking into Buyer’s
Computers,
[22] See Ingrid Marson & Graeme Wearden, Sony 'rootkit' Prompts Office Clampdown on CD Use, CNet News.com, at http://ecoustics-cnet.com.com/Sony+rootkit+prompts+office+clampdown+on+CD+use/2100-7355_3-5951177.html; John Borland, ‘Bots’ for Sony CD Software Spotted Online, CNet News.com, Nov. 10, 2005, at http://news.com.com/2100-1029-5944643.html?tag=tb; Joris Evars, Microsoft Will Wipe Sony’s Rootkit, CNet News.com, Nov. 13, 2005, at http://news.com.com/2100-1002-5949041.html?tag=tb.
[23] Ken
Fisher, Sony: What You Don’t Know Can’t
Hurt You, Arstechnica.com,
[24] See John Leyden, First Trojan using Sony DRM Spotted, The Register,
[25] See Bruce Schneider, Sony’s DRM Rootkit: The Real Story,
[26] See Mark Russinovich, Sony: No More Rootkit – For Now, Mark’s
Sysinternals Blog,
[27]
[28] Indeed,
not even two months after the Rootkit scandal Sony was again backpedaling because of another
insecure copy protection measure called Mediamax. See Mediamax,
[29]
[30]
[31]
[32]
[33]
[34]
[35] Declan
McCullagh, Rep: Give Fair Use a Fair
Shake, Wired Magazine,
[36] Opensecrets.org – Money in Politics Data, at http://www.opensecrets.org/.
[37] Howard Coble: Campaign Finance / Money – Contributions – Congressman 1998, Opensecrets.org, at http://www.opensecrets.org/politicians/indus.asp?CID=N00002247&cycle=1998.
[38] Top Recipients from PACs Only: TV/Movies/Music, 1998 Cycle, Opensecrets.org, at http://www.opensecrets.org/industries/pacrecips.asp?Ind=B02&cycle=1998.
[39] Dianne Feinstein, Campaign Finance / Money – Contributions – Senate 1998, Opensecrets.org, at http://www.opensecrets.org/politicians/indus.asp?CID=N00007364&cycle=1998.
[40] Opensecrets.org
[41] Opensecrets.org
[42] The Digital Millennium Copyright Act, Text, History, and Caselaw 247 (2003)
[43] 17 U.S.C. § 1201(a) (2005).
[44] 17 U.S.C. § 1201(a)(2) (2005)(“ No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.”).
[45] 17 U.S.C. § 1201(a)(3).
[46]
[47] 17 U.S.C. § 1203(c)(3) (2005).
[48] 17 U.S.C. § 1204 (2005).
[49] Thank you, Professor Johnson, for pointing out this sophisticated distinction.
[50] 17 U.S.C. § 106 (2006).
[51] Timothy B. Lee, Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act, The Cato Institute, available at http://www.cato.org/pub_display.php?pub_id=6025 (characterizing the DMCA as “a dramatic expansion of the rights of copyright holders”).
[52] LP, 71 (describing some contributing factors in effective amount of copyright protection as including the “efficacy and cost of enforcement”).
[53] Timothy B. Lee, Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act, The Cato Institute, available at http://www.cato.org/pub_display.php?pub_id=6025.
[54] And, because of the RIAA’s thickheaded loyalty to old and outdated business models…
[55] See Quote from Jack V. on bottom of Roemer ~fn 34
[56] See Quote on the bottom of Roemer from Pres. Of Universal Music Group. ~fn 37
[57] See infra note 56 and accompanying text.
[58] Joris
Evers, Hackers Find First Xbox 360 Cracks,
CNet News.com (
[59]
[60] See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001); Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000).
[61] See DeCSS – Wikipedia for some links, at http://en.wikipedia.org/wiki/DeCSS.
[62]
[63] Marci A. Hamilton, The Historical and Philosophical Underpinnings of the Copyright Clause 9 (1999).
[64]
[65]
[66]
[67]
[68]
[69] See Report on Legal Protection for
Databases,
[70] Willliam M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 71 (2003) [hereinafter Landes & Posner].
[71]
[72]
[73]
[74]
[75]
[76]
[77]
[78]
[79]
[80]
[81] Let’s
call the DMCA what it is: a government subsidy to the RIAA and the MPAA. This
point can be derived from a model that Landes and Posner provide.
[82]
[83] Pierre Schlag, The Problem of Transaction Costs, 62 S. Cal. L. Rev. 1661 (1989).
[84] Pierre Schlag, The Problem of Transaction Costs, 62 S. Cal. L. Rev. 1661, 1673 (1989).
[85] See Landes & Posner, supra note 68 at 78 (describing these costs as common costs that increase as effective copyright protection increases).
[86]
[87]
Campbell v. Acuff-Rose Music, Inc., 510
[88] See Landes & Posner, supra note 68.
[89] 35 U.S.C. §112 (2006)(“ The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.”).
[90] DSC Communications Corp. v. DGI Technologies, Inc. 898 F.Supp. 1183, 1191 (N.D.Tex.,1995)(recognizing that the “fundamental purpose of the Copyright Act-to encourage the creation of original works by protecting the creator's expression while leaving the ideas, facts and functional concepts in the free marketplace to be built upon by others”).
[91] She must still pay fixed costs while delay is occurring.
[92]
Information regarding the
specific nature of the DRM software is sparse at the buying stage. A
prospective customer has little way of knowing what his or her rights will be
with regards to the music contained on the disk. The customer does not know
what agreement he or she will be required to accept when selecting disks on the
shelf. After the Sony BMG Rootkit event, a customer does not even know whether
his or her computer will work with the software he or she is about to purchase.
Will the customer be able to return the disk?
[93] Indeed, encouraging DRM and other technical barriers was a goal of the drafters of the DMCA. See S. Rep. No. 105-109, p. 11 (1998) (“Title I encourages technological solutions, in general, by enforcing private parties’ use of technological protection measures with legal sanctions for circumvention…”).
[94] See Initial Russinovich Report.
[95] See Lee, supra note 51, at 9.
[96]
[97] Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, 621 F.2d 57, 60 (2d Cir. 1980).
[98] 17 U.S.C. § 107 (2006).
[99] 17 U.S.C. § 107 (2006).
[100] Marshall Leaffer, Understanding Copyright Law 319 (2d ed.)
[101] Marshall Leaffer, Understanding Copyright Law 319 (2d ed.)(citing H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 66 (1976).
[102] Campbell, 510
[103]
[104]
[105]
[106] 17 U.S.C. § 1201(a)(1)(A) (2005).
[107] See Initial Russinovich Report, supra note 11.
[108] One
doesn’t have to look far for examples of the RIAA spouting this tenuous argument.
See RIAA – Anti-Piracy, http://www.riaa.com/issues/piracy/default.asp
(“Though it would appear that record companies are still making their money and
that artists are still getting rich, these impressions are mere fallacies.” and
“Musicians, singers, songwriters and producers don’t get the royalties and fees
they’ve earned. Virtually all artists (95%) depend on these fees to make a
living.”).
[109] Campbell, 510
[110] 796 F.2d 1148 (9th Cir. 1986).
[111]
[112] 17 U.S.C. §1201(d) (2005).
[113] 17 U.S.C. §1201(e) (2005).
[114] 17 U.S.C. §1201(f) (2005).
[115] 17 U.S.C. §1201(g) (2005).
[116] 17 U.S.C. §1201(i) (2005).
[117] 17 U.S.C. §1201(j) (2005).
[118] One may read this as “well organized and well-funded.”
[119] 17 U.S.C. § 1201(c) (2005).
[120] 17 U.S.C. § 1201(a) (2005).
[121] 17 U.S.C. § 1201(b) (2005).
[122] S. Rep. No. 105-109, at 28-30 (reprinted in The Digital Millennium Copyright Act: Legislative History at 98-100).
[123]
[124] 17 U.S.C. § 1201(a)(3)(B) (2005).
[125] Or flare.
[126] 17 U.S.C. § 1201(a)(3)(B) (2005).
[127] 17 U.S.C. § 106(3) (2005).
[128] 17 U.S.C. § 109(a) (2005).
[129] See Leaffer, supra note 95 at 239.
[130] Copyright Office Section 104 Report, 76 (2001).
[131]
[132]
[133] See supra Part III.A (describing the Landes and Posner model and applying it to the DMCA and DRM).
[134]
[135] Copyright Office Section 104 Report, 88-89 (2001).
[136] The progress of the science and the useful arts are the ends at which the means should be aimed.
[137] Doing more than considering the harm might be more than one could expect. New creators of intellectual property and the public that participate in secondary market resale of copyrighted goods pale in comparison to the mighty MPAA and RIAA.
[138] Copyright Office Section 104 Report, page 89 (2001).
[139]
[140] Id at 86-96
[141] For more on this point, see R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 Boston College L. Rev. 577 (2003).
[142]
[143] Id at 1118.
[144]
[145]
[146]
[147]
[148]
[149]
[150]
[151]
[152]
[153]
[154] Id at 1130.
[155]
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 125 S.Ct. 2764 (
[156] A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004, 1017 (9th Cir. 2001).
[157] See Barnes & Noble Help Desk: eBooks, at http://www.barnesandnoble.com/help/ebooks.asp (“B&N.com no longer sells or provides support for eBooks. We apologize for any inconvenience this may cause.”).
[158]
[159]
[160]
[161]
[162] See supra Part III.A.
[163] Sony
BMG is already being sued by multiple states. Class action suits were filed
against Sony in
[164] Copyright infringement is “merely” copyright infringement when balanced against a copyright owner’s ability to strike out at possible copyright infringers because, at the end of the day, copyright infringement is about money, not personal health, safety, welfare, or some fundamental human right.
[165] Fred Locklear, Batten Down the Hatch: Storm Abrewin’, arstechinca.com, http://arstechnica.com/news/posts/1055897910.html (“’I'm interested, Hatch interrupted. He said damaging someone's computer ‘may be the only way you can teach somebody about copyrights’.").
[166] Herbert Hovenkamp, Antitrust (3d ed. 1999).
[167] Herbert Hovenkamp, Antitrust (3d ed. 1999) (quoting Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971)).
[168] EU
News Release, EU Commission Concludes
Microsoft Investigation, Imposes Conduct Remedies and a Fine,
[169]
[170] See Initial Russinovich Report
[171] Sony
BMG Market Share Slipped to 20.5% in 2005, Reuters,
[172]
[173] Eric Pfanner, On Top of Talk of Rifts, the Problems Keep Piling Up for
Sony-Bertelsmann Venture, International
Herald Tribune,
[174]
[175] Herbert Hovenkamp, Antitrust 147-51 (3d ed. 1999)
[176] Digidyne
Corp. v. Data General Corp., 734
F.2d 1336, 1341 (9th Cir. 1984) (quoting
[177]
Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466
[178] 381 F.3d 1178 (Fed. Cir. 2004).
[179]
[180]
[181]
[182]
[183]
[184] Id at 1193.
[185]
[186]
[187]
[188]
[189]
[190] Lexmark Intern., Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004).
[191]
[192]
[193]
[194]
[195]
[196]
[197]
[198]