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The Digital Millennium Copyright Act of 1998 hasn’t worked out the way consumers or copyright owners planned: It has neither stopped piracy nor preserved the long-established fair use of protected works, lawyers on both sides of the issue say. To be sure, the movie and music industries have said that without DMCA’s penalties for piracy, the DVD market would have died. But lawyers grumble about the loss of legitimate use of copyright-protected material, attempts to stretch the law to curb competition, conflicting court rulings and a new crop of bills in Congress. The growing ease of downloading and copying music and movies over the Internet in the 1990s prompted Congress to pass DMCA. The law made it illegal to circumvent-or hack-passwords, encryption or other methods of copyright protection, often called digital rights management. The law bans not only the act of circumventing digital rights management technology, but also trafficking in tools that circumvent the electronic locks. While the differing legal camps seldom agree on how to resolve the conflicts, it is clear that Congress plans to keep its hand in the mix, which is likely to stir even more litigation. Two of the current measures in the U.S. House of Representatives would strengthen fair use protection and bolster the protections for content owners. Pushing the conflicts is a host of concerns described by content owners and consumers. “The underlying problem is DMCA makes it unlawful to bypass [protective] technology even if your use is lawful,” said Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation (EFF), which advocates broader fair use rights for consumers. The DMCA prevents consumers from making backup copies of DVDs they own, and forbids fast-forwarding through unskippable ads in movies, he said. Copyright litigator Laurence Pulgram of the San Francisco office of Mountain View, Calif.’s Fenwick & West agreed. “Without some sensible limits, the DMCA stands as a choke point on fair use and competition,” he said. “The real gotcha of DMCA is how litigants have been using it” to squelch competition, said Eric Goldman, a Marquette University Law School professor specializing in fiber law. Pulgram pointed to two appellate decisions that warn against overreaching by copyright owners. Two courts held that DMCA cannot be used to restrict legitimate competition in after-market components in the case of toner cartridges for printers and in a garage door opener case. Chamberlain v. Skylink, 381 F.3d 1178 (Fed. Cir. 2004), and Lexmark v. Static Control Components, 387 F.3d 511 (6th Cir. 2004). “But we’re still waiting to see if the choke point on fair use will be similarly relaxed,” he said. ‘The nuclear option’ Not all copyright owners even want to invoke DMCA. Trademark and entertainment litigator Daniel Schecter of Latham & Watkins’ Los Angeles office said, “There is still a hesitancy by many to use what is seen as the nuclear option,” he said. “There is a sense that it is viewed as a very strong cudgel,” he said, pointing out that using DMCA also carries the risk of bringing into the dispute constituencies that might draw amicus opposition, such as open access groups like the Electronic Frontier Foundation. Yet it is hard to argue with success. A $6 million damage award to Sony Playstation for DMCA violations came in a San Francisco federal court decision in December. That case for the first time interpreted damage calculation under the law, according to Tim Cahn, an IP litigator at San Francisco’s Townsend and Townsend and Crew, which represented Sony. Sony v. Filipiak, 406 F. Supp. 2d 1068 (2005). “A lot of fair use defenses are really bogus,” Cahn said. Many of the typical fair use defenses are not even available in DMCA violation cases because the wrong occurs when the copyright protections are circumvented, he said. But EFF’s von Lohmann and other DMCA critics have said that the law curtails fair use as a defense to copyright infringement claims, and would chill the free exchange of scientific, technical and educational information. For example, academic researchers have expressed fear that they would be accused of violating the law if they searched through copyright-protected software for security flaws and published their results. A Princeton University computer science professor was threatened with a DMCA lawsuit two years ago when he tried to publish a paper about weaknesses in watermarking technologies. The courts have not always provided clarity. The 2d U.S. Circuit Court of Appeals held five years ago that providing someone a tool for decryption of DVDs violates the DMCA’s anti-circumvention rule, even if it also restricts some fair use. In Universal City Studios Inc. v. Corley, 273 F.3d 429 (2001), the court said that using a legitimate key, or password, to decrypt the DVDs and allow them to be played violated DMCA. Fair use is no defense to circumvention, the court held. By contrast in November, a district court in Washington approved a law firm’s use of a stolen password to access a private Internet site, finding that use did not violate DMCA, Egilman v. Keller & Heckman, 401 F. Supp. 2d 105 (2005). In September, the 8th Circuit “got it wrong,” according to Pulgram, when it rejected an exception to the circumvention ban for the sole purpose of making computers work together, known as “interoperability.” The ruling came in Davidson & Assocs. v. Jung, 422 F.3d 630 (2005), a case involving Blizzard Entertainment Inc.’s online computer games. The court ruled against three open-source programmers who created a free program to allow gamers to play online with others on the platform of their choice, rather than being limited to Blizzard servers, according to Pulgram. The court took “the DMCA beyond what it rationally could mean because they suggest that even facilitating someone else using a pre-existing infringing copy [of the game] could be circumvention. That is doctrinally a non sequitur,” Pulgram said. As recently as three weeks ago, a federal judge in Los Angeles, in a case against online search giant Google Inc., raised the possibility that displaying pictures in the results of Internet searches may be a problem. The court ruled that Google could not display search results that include the thumbnail pictures of nude women from adult publisher Perfect 10 Inc. while their infringement case is pending. Perfect 10 v. Google Inc., No. C04-9484AHM. “That case shows how amorphous the fair use issue is,” said Pulgram. Google’s thumbnail was not fair use, even though an unrelated court ruling upheld Arriba Soft Corp.’s use of thumbnails in 2003, he said. The difference is commercial, he said. Google sells ads that might appear on the same page as the thumbnail, and Perfect 10 sells cellphone thumbnails. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). The legal confusion, public pressure and commercial risks to content owners have prompted Congress to attack the issue on several fronts. Representative Rick Boucher, D-Va., has moved to bolster fair use protections, while Representative Michael Ferguson, R-N.J., has a bill to require what’s known as “broadcast flags” on recordings as an anti-copying protection. “The DMCA makes it possible for a copyright owner to completely extinguish fair use rights with respect to digital media,” Boucher said. That can be done by placing some technical protection in front of the copyright work as simple as a password, he said. Then owners prohibit circumvention of the password in all instances in which the copyright owner isn’t paid. Boucher, who is currently sponsoring the Digital Media Consumers’ Rights Act of 2005, H.R. 1201, said he wants to allow people who buy digital media to circumvent the technological barriers to access if their purpose is lawful, such as copying a movie snippet for an online review or for research. “The ball is in Hollywood’s court,” Boucher said. The movie and recording industry oppose his bill but they also want broadcast flags on new digital TVs and other media devices. The flag is a signal embedded in a recording that a receiver recognizes as legal. But flags would also prevent consumers from saving or recording digital programming, according to Boucher. A new bill to allow broadcast flags was introduced in the House on March 2 by Ferguson, but it does not include language related to fair use. It is the Audio Broadcast Flag Licensing Act of 2006, H.R. 4861. Boucher said that if Hollywood wants the broadcast flags, it is going to have to accept the fair use protections in H.R. 1201. Although DMCA states that the law does not affect fair use, Boucher called it “a disinformation clause that was designed to persuade people that fair use would not be diminished by passage. But in fact it has no operation whatever . . . because DMCA is not a copyright statute,” he said. A ‘hacking right?’ Mitch Glazier, Recording Industry Association of America vice president of government affairs, countered, “Mr. Boucher’s bill really provides a hacking right that goes beyond fair use. RIAA is very willing to accept fair use, but “fair use does not mean free access.” The problem is “current digital technology is not sophisticated enough to tell the difference between fair use and pirating,” said Jacqueline Lipton, a professor at Case Western Reserve University School of Law in Cleveland who specializes in cyber law and intellectual property. Marquette’s Goldman said that it is possible for digital rights management systems, the electronic locks on content, to take away fair use. But the trend in copyright law has been, as people fail to adhere to the rules, to “make it meaner.” Those people who are “unlucky enough to get busted are collateral damage,” he said. He doesn’t give much chance for Boucher’s approach. “My instinct is that it is extremely unlikely that the DMCA will be less severe or that Congress will create carve-outs or safe harbors,” he said. Even if DMCA anti-circumvention rules were repealed “you would not have a thousand fair use flowers bloom.” There are still copyright, contract and trespass laws confronting fair use. Responded von Lohmann, “We’re finding the DMCA less and less useful for stopping digital piracy and very effective for stopping legitimate rights.”

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