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The “anti-circumvention” provisions of the Digital Millennium Copyright Act, codified in � 1201 of the Copyright Act, were enacted in 1998 and were intended by Congress to prevent copyright “pirates” from defeating anti-piracy safeguards used for copyrighted works and to prohibit distribution of tools and technologies used for circumvention. Although this goal may seem laudable, in a report published in May, entitled “Unintended Consequences: Three Years Under the DMCA,” the Electronic Frontier Foundation (EFF) states that “the anti-circumvention provisions [in � 1201] have been used to stifle a wide array of legitimate activities, rather than stop copyright privacy.” According to EFF, � 1201 “has developed into a serious threat to three important public policy priorities.” CHILLING OF FREE EXPRESSION AND SCIENTIFIC RESEARCH EFF first reports that � 1201 “is being used to stifle free speech and scientific research.” Pointing to lawsuits against a magazine, threats against a professor and his team of researchers, and the prosecution of a Russian programmer, EFF concludes that “the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public” have been “chilled.” JEOPARDIZING FAIR USE Next, EFF expresses concern for fair use rights of the public. These rights are jeopardized by � 1201 because “by banning all acts of circumvention, and all technologies and tools that can be sued for circumvention,” it grants to copyright owners “the power to unilaterally eliminate the public’s fair use rights.” As an example, EFF reports that the music industry already “has begun deploying ‘copy-protected CDs’ that promise to curtail consumers’ ability to make legitimate, personal copies of the music they have purchased.” IMPEDING COMPETITION AND INNOVATION EFF then states that many copyright owners have decided to use � 1201 “to hinder their legitimate competitors,” rather than “focusing on pirates.” To drive this point home, EFF highlights that Sony has invoked � 1201 “to protect [its] monopoly on Playstation video game consoles, as well as [its] ‘regionalization’ system limiting users in one country from play games legitimately purchased in another.” TIP OF THE ICEBERG EFF concludes that three years of experience with � 1201 “demonstrates that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend.” Even more worrisome, EFF predicts that “as an increasing number of copyright works are wrapped in technological protection measures, it is likely that [� 1201] will be applied in further unforeseen contexts, hindering the legitimate activities of innovators, researchers, the press, and the public at large.” Let’s hope that that prediction will not come true. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris. Mr. Sinrod may be reached by e-mail at [email protected].

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