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The Digital Millennium Copyright Act has its flaws, but so far it has not been the incursion into rights that its critics claim. The most controversial aspect of the DMCA, § 1201, prohibits circumvention of tools that control access — such as encryption — to copyrighted works. The law also prohibits distribution of tools to circumvent access or copy control devices. Critics contend that the § gives copyright owners unprecedented control over the use of their works, and threatens the constitutional rights of users. Some propose creating broad exceptions to weaken the statute. Supporters of the law, however, argue that because of § 1201 we have more and better access to copyrighted works than ever before, and the statute’s essential protections should not be cut back. Section 1201 has provided substantial benefits to consumers by encouraging the development of innovative new content delivery mechanisms. The DMCA represents a tough balancing act, and it is still a work in progress. So far the courts and the copyright office, which has the power, every three years, to recommend exemptions in the law, have done a rather sensible job of interpreting it. Critics have argued that § 1201 chills free speech. But the courts do not read the First Amendment as broadly as the DMCA’s critics do. No one has been found liable under the DMCA for talking about circumvention. Instead, liability has been based on circulating complete, functional computer programs. For example, in 2001 in Universal City Studios, Inc. v. Corley, the 2nd U.S. Circuit Court of Appeals stopped the distribution of DeCSS, a software utility that unlocks an encryption program. The program protects DVDs from being played in unlicensed devices that allow copying. The court rejected the defendants’ First Amendment arguments and ruled that § 1201 was directed at the functional, nonspeech component of DeCSS and served an important governmental interest (preventing unauthorized access to copyrighted works) without an undue burden on free speech. In 2002 in U.S. v. Elcom, Ltd., a federal district court in California reached essentially the same conclusion. Opponents of § 1201 argue that the statute virtually eliminates fair use. It does so, they claim, by restricting the availability of circumvention devices and banning the circumvention of access controls. While there are some legitimate concerns about fair use, many of these claims are exaggerated. Much of the debate is really about how convenient fair use should be. Should users be able to easily copy and paste digital materials, or is it acceptable if methods of copying are more tedious? According to the Corley court, “the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies” including comment, quotation, or even copying by means of a camera or recording device. Conceding that the resulting copy would not be as good or as easily manipulated as a digital copy, the court concluded: “We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original.” The Elcom court also rejected the notion that the DMCA eliminates fair use. The court conceded that “quoting may have to occur the old-fashioned way, by hand or by retyping, rather than by ‘cutting and pasting’ from existing digital media.” The defendant provided no authority which guarantees “the most technologically convenient way to engage in fair use,” the court ruled. Many critics, however, object to § 1201 not based on any alleged limitation on traditional fair uses, but because the controls restrict their ability to make multiple copies of movies, sound recordings and books. Much of the criticism is based on a very expansive notion of users’ “rights” derived from a liberal reading of the Supreme Court’s decision in Sony v. Universal City Studios. But many of these “rights” have been acknowledged by neither the courts nor the copyright office. In Sony, the Court held that time-shifting (the practice of recording a television program to watch it at a later time) was a fair use. However, as register of copyrights Marybeth Peters recently explained in a congressional hearing, “The Court did not consider whether other activity related to home taping of broadcasts — such as creating a library of recorded shows, making further copies from the initial recording or distributing recorded shows to friends or others — would qualify as fair use. … Thus, the suggestion that the Sony decision established a fair use ‘right’ for individuals to engage in a wide variety of reproduction and distribution activities is simply incorrect.” The relationship between access controls and fair use is a complicated one. A use that would be fair if access is authorized does not necessarily justify access without authorization. In the analog world, you do not have a right to steal a copy of a book in order to quote it. If access controls stand in the way of exercising fair use privileges, the Librarian of Congress, through a rulemaking procedure, has authority to grant exemptions. Recently, the librarian created four exemptions, including one for circumventing the access controls on e-books for the benefit of the disabled, where no existing e-book editions can be used with a read-aloud function or screen reader software. Critics also like to argue that § 1201 stifles competition. Indeed, it is intended to stifle some competition — that is, competition from unlicensed playback devices that circumvent technological protection measures. The Streambox VCR was such a device. In RealNetworks v. Streambox (W.D. Washington, 2000) the court enjoined its distribution. RealNetworks’s system allowed content owners to encode their works and stream them to users of its popular RealPlayer. Rightsholders could determine whether or not users were permitted to copy streamed works by flipping a switch in the software. But the Streambox VCR faked out the RealNetworks system. Consumers who purchased the Streambox VCR could access content licensed for the RealPlayer without the hindrance of its copy restrictions. The court found the Streambox VCR fell squarely under § 1201, and concluded, among other things, that RealNetworks’s security measures factored into content owners’ willingness to make their material available. On the other hand, § 1201 was never intended to stifle competition in the replacement parts market, and its attempted use for this purpose is a troubling development. Recently, Lexmark, a manufacturer of computer printers and toner cartridges, sued Static Control, a rival manufacturer of replacement toner cartridges. Lexmark printers will function only with authorized Lexmark cartridges, identified through an authentication sequence. Static Control developed a replacement microchip that enables unauthorized toner cartridges to function with Lexmark’s printers. Lexmark alleged, among other things, that these microchips violated the DMCA. This year the Eastern District of Kentucky agreed. Although § 1201(f) contains an exception for access to achieve interoperability between independently created computer programs, the ruling found that Static Control didn’t qualify because it copied Lexmark’s program outright. A similar issue arose in Chamberlain Group v. Skylink Technologies. Chamberlain claimed that Skylink’s universal remote transmitter violated § 1201 by circumventing the access control in the receiver of Chamberlain’s garage door opener. Recently, the Northern District of Illinois granted summary judgment to Skylink. It concluded that Chamberlain had tacitly authorized the circumvention by failing to notify consumers that they were limited to Chamberlain-manufactured replacement transmitters in a market in which universal transmitters are commonly sold — including by Chamberlain itself. Lexmark and Chamberlain, considered together, suggest that the DMCA does not spell the end of the replacement parts market. In Chamberlain, the court concluded that the replacement transmitter could be marketed; in Lexmark, the court might have reached a similar result had Static Control not violated the copyright law to achieve compatibility and exceeded the scope of the DMCA exception. It appears that this issue can be resolved by the courts, but if it is not, a clarification to the statute may be necessary. There are other potential problems — such as malfunctioning access control mechanisms — with § 1201 that may have to be confronted if they are not worked out in the courts or the marketplace. The Librarian of Congress has granted relief in specific cases where evidence showed this was a problem, but has also indicated that an across-the-board solution is beyond his mandate. Exceptions to the law may also be necessary for archival purposes. In the most recent rulemaking, the Librarian of Congress granted an exemption for certain computer programs and videogames in obsolete formats in order to facilitate preservation of these materials. It would not be surprising if, over time, technological access controls create obstacles to other legitimate archiving activities. Should the need arise, a use-based exemption would have to come from Congress. Critics of the DMCA also say the ban on distributing circumvention tools eliminates the practical ability of most people to make authorized uses of copyrighted works. But so far there is little evidence that people can’t exercise copyright privileges because they don’t have circumvention tools. Perhaps it is because the technological controls in current use are not very sophisticated, or because circumvention devices are still broadly available, despite a few widely publicized cases. Or perhaps it is because there really are alternatives to circumvention. But if a need to amend the law becomes apparent, it would be wise to tread warily: Circumvention devices cannot be limited by purpose, so allowing them for some purposes effectively makes them available for all purposes. In evaluating whether § 1201 requires amendment (and if so, how to amend it), it is important to focus not only on the restrictions it places on use of copyrighted works, but also on the reasons for its enactment. We must address in a meaningful way the fundamental concerns that underlie the legislation: how do we protect works in digital form and preserve the incentive to invest in creating them? Copyright owners are not just crying wolf: The enormous popularity of programs like Napster (in its prior incarnation) and Kazaa suggests that unauthorized copying has become common, and that many users of file-sharing programs do not care whether the works they copy are protected by copyright or not. And while some piracy has always been a cost of doing business, at some point it is unrealistic — and unfair — to expect paying customers to subsidize widespread free use. Critics suggest that copyright owners need to adopt “new business models,” but they have not yet proposed a model that meets consumer expectations while still providing a reasonable return on investment. Section 1201 has played an essential role in encouraging the development of DVDs, e-books and services such as Movielink, iTunes and Rhapsody. These new content delivery mechanisms provide consumers with an unprecedented range of choices as to when, where, how and at what price they can experience copyrighted works. There are positive indications that the market is adjusting to accommodate users’ privileges (and desires). For example, a number of universities are negotiating agreements to provide music download services to students. Pennsylvania State University recently reached a deal with the new and legitimate Napster service. And a recently announced form of CD copy protection apparently allows consumers to make copies for personal use. If and when § 1201 is amended, the legislation should be tailored to address specific, identified problems on the basis of sound evidence of harm that outweighs the risks of weakening the law. A broad, all-purpose exemption would eliminate the law’s force and defeat its goals. June M. Besek is the executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School.

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