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Enacted in 1998, the anti-circumvention provisions that were the centerpiece of the Digital Millennium Copyright Act (DMCA) have proven to be a failure at their stated goal of preventing widespread digital copyright infringement. At the same time, they are stifling legitimate research, impeding fair use and impairing competition. All in all, not a very auspicious first five years. The DMCA’s anti-circumvention provisions appear in � 1201 of the Copyright Act. Section 1201 contains two distinct prohibitions: a ban on acts of circumvention, and a ban on the distribution of tools and technologies used for circumvention. Copyright wags often shorthand this by referring to the DMCA’s “acts prohibition” and “tools prohibition.” These prohibitions come into play only where a copyright owner has employed a “technological protection measure” to protect a copyrighted work. In other words, a copyright owner must take some steps to “lock up” her content to obtain � 1201′s protections. So, for example, DVD movies today come wrapped in a layer of encryption that permits playback only on licensed DVD players. The DMCA makes it unlawful to defeat this encryption system, and also makes it unlawful to distribute tools that are primarily designed, used or marketed for such a purpose. Here’s the rub: The ban on circumvention applies even where decryption and use of the movie would otherwise be legitimate. As a result, when Disney’s Tarzan DVD prevents you from fast-forwarding through the commercials that preface the feature presentation, efforts to circumvent this restriction would be unlawful. The same goes for tools that would assist you to defeat the copy-protection on a music CD in order to use the CD on your computer. Section 1201 includes a number of exceptions for certain limited classes of activities, including security testing, reverse engineering of software, encryption research and law enforcement. These exceptions have been extensively criticized as being too narrow to be of real use to the constituencies they were intended to assist. A violation of any of the “act” or “tools” prohibitions is subject to significant civil and, in some circumstances, criminal penalties. The basic idea behind the prohibitions was straight-forward — faced with the prospect of digital piracy, copyright owners would “lock up” their content using sophisticated “digital rights management” technologies. This would be enough to deter the casual content consumer. The DMCA’s anti-circumvention provisions would provide the legal backup, keeping circumvention tools off the mainstream market and deterring more sophisticated content consumers. While some piracy would always be with us, so the story goes, these technological and legal tools would protect (and hopefully extend) existing business models for the copyright industries. Or, to put it more directly, with these tools, the media moguls of the 1990s hoped to hold back the digital future. As usual, the technology outpaced the policy-makers, overflowed the dikes intended to contain it, and is well on its way to remaking the business models of those in the copyright industries who have not been fleet enough to adapt. Today, virtually every major motion picture can be downloaded from the Internet. Despite years of litigation, DVD copying software is readily available for free download or for nominal sums at your local computer superstore. Tens of millions of Americans are downloading music from unauthorized sources using software such as Kazaa. Section 1201 has done virtually nothing to stop these developments. Digital rights management in the current environment is worse than useless — it may actually be counterproductive for content producers. In late 2002, in an influential paper entitled “The Darknet and the Future of Digital Content Distribution,” four senior Microsoft Corporation security engineers took a fresh look at the digital content distribution marketplace. They concluded that, in a market where virtually all mass-media content is available from unauthorized sources, restrictive “technical protection measures” in the legitimate marketplace merely drive consumers to the unauthorized alternatives. In other words, every time a consumer encounters a copy-protected CD, she has a new reason to download and use Kazaa. Unfortunately, � 1201 has not only failed in its stated goals, but it has also inflicted considerable collateral damage on scientific research, fair use, and competition. The following examples are only a few of the dozens documented in a report issued by the Electronic Frontier Foundation (where I am a senior attorney), entitled “Unintended Consequences: Five Years Under the DMCA.” The DMCA’s anti-circumvention provisions have been used by a number of copyright owners and digital rights management vendors to impede legitimate scientific research. For example, in 2000, a multi-industry group known as the Secure Digital Music Initiative issued a public challenge inviting technologists to defeat certain watermarking technologies intended to protect digital music. Princeton University professor Edward Felten and a team of researchers at Princeton, Rice University and Xerox Corporation took up the challenge and succeeded. When the team tried to present their results at an academic conference, however, representatives from the secure digital music initiative threatened the researchers with litigation under � 1201. The threat letter was simultaneously delivered to the researchers’ employers and the conference organizers. After extensive discussions with counsel, the researchers grudgingly withdrew their paper from the conference. A portion of the research was ultimately published at a subsequent conference, but only after the researchers filed a lawsuit of their own against the digital music initiative. There have been more than a dozen reported incidents involving DMCA threats to researchers, journalists and hobbyists. Bowing to DMCA liability fears, online service providers and bulletin board operators have censored discussions of copy-protection systems, programmers have removed computer security programs from their Web sites, and students, scientists and security experts have stopped publishing details of their research. In October 2002, White House cybersecurity chief Richard Clarke called for DMCA reform, noting his concern that the law had been used to chill important computer security research. Traditionally, the Copyright Act has represented a delicate balance between the rights of the public and adequate incentives for owners. This balance has included a variety of copyright exceptions, including recognition of fair use — the principle that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner’s market for a work. Fair uses include personal, noncommercial uses, such as recording a television program on a VCR for later viewing, as well as activities undertaken for such purposes as criticism, comment, news reporting, teaching, scholarship or research. By employing technical protection measures to control access to and use of copyrighted works, and using � 1201 against anyone who tampers with those measures, copyright owners can unilaterally eliminate fair use by making such uses technologically impossible. So not only has the DMCA failed to stem digital piracy, it has actually ended up penalizing lawful activities. Take copy-protected CDs as an example. Record labels are aggressively incorporating “copy-protection” on new music releases. Sony claims that it has released over 11 million copy-protected discs worldwide. These technologies are aimed at blocking computers from making copies of protected CDs, and thus are certain to interfere with the fair use expectations of consumers. For example, copy-protected discs will disappoint the millions of consumers who have purchased MP3 players, despite the fact that making an MP3 copy of a purchased CD for personal use is almost certainly a fair use. Making “mix CDs” or copies of CDs for the office or car are other examples of fair uses that are potentially impaired by copy-protection technologies. Rather than focusing on pirates, some copyright owners have wielded the DMCA to hinder their legitimate competitors. That’s what Lexmark International, Inc., the second-largest printer vendor in the U.S., was doing when it used � 1201 to obtain an injunction barring Static Control Components from selling components for replacement toner cartridges for use in Lemmark printers. The company claimed that Static Control was using technology to “circumvent” Lexmark software that tells a printer that it is working with a compatible toner cartridge. Lexmark is not alone in using the DMCA to try to fence out competitors who would like to offer interoperable products to consumers. Similar suits have already been brought in the garage door and video game industries. Some in the auto industry are worried about the use of the DMCA to eliminate aftermarket parts. The anti-circumvention provisions of the DMCA are proving to be a failure at preventing digital piracy. Moreover, they are inflicting an intolerable amount of collateral damage on other public policy priorities. As a result, two bills pending before Congress aim to substantially reform � 1201. Both represent steps in the right direction, steps toward reforming a law that has done substantially more harm than good in its first five years on the books. Fred von Lohmann is a senior staff attorney at the Electronic Frontier Foundation in San Francisco.

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