Introduction to the DMCA

Stated simply, the Digital Millennium Copyright Act prohibits the sale of devices used to circumvent technological protection measures that control access to copyrighted works. Please familiarize yourself with the statute by reading 17 USC 1201.

What does it all mean? The DMCA is complex, lengthy and highly technical. Section 1201 distinguishes between technological controls that restrict access to a copyrighted work and technological controls designed protect an exclusive right of the copyright owner. Please read Jane Ginsburg’s article The Pros and Cons of Strengthening Intellectual Property Protection for a decent summary of the statute‘s inner workings (p 1-12).

The DMCA contains a fail-safe provision that allows the Librarian of Congress to issue exemptions every three years. Exemptions are granted where it has been shown that access controls have had an adverse effect on the ability of the public to make non-infringing uses of the underlying copyrighted work. Please read the most recent recommendations from the Register of Copyright to the Librarian of Congress (p 1-17), paying particularly close attention to the recommended exemptions. Of the classes which were not recommended, do you think any should have been included? Should any of the classes which were recommended have been left off the list?

For a better understanding of the practical effect of these exemptions, please consider this recent article concerning the legality of jail-breaking the iPhone.

The DMCA: Foundational Cases and Unintended Consequences

One of the earliest examples of a claim arising under the DMCA is Universal City Studios v. Reimerdes (optional). The case is highly technical and complex. For less convoluted analysis, please read the summary of the case in Timothy Armstrong’s article Fair Circumvention (p 9-15).

Often, businesses bring suit under the DMCA in an effort to gain unfair advantage over their competitors. By alleging the unauthorized circumvention of products ranging from garage door openers to printer cartridges, companies have attempted to discourage legitimate competition in the marketplace. (see Chamberlain Group v. Skylink Tech (optional case concerning garage door openers); see also Lexmark v. Static Control Components (optional case concerning printer cartridges); please read Armstrong’s article for a more digestible summary of these two cases (p 16-25)). The defendants in both these cases prevailed…but how many other defendants simply chose to surrender rather than engage in costly litigation?

Since its enactment, many aspects of the DMCA have proven deeply troubling to legal scholars. Some have argued that the DMCA stifles creativity, innovation and competition. For an excellent overview of the issues raised by the DMCA, please read the Electronic Frontier Foundation’s publication on the unintended consequences of the DMCA. For more in-depth analysis of the statute’s shortcomings, please read either: Intellectual Property and the Digital Economy: why the anti-circumvention regulations need to be revised by Pamela Samuelson (p 25-39) or Anti-Circumvention Misuse by Dan Burk (p 51-64). Do you think their concerns are justified or overwrought?

The DMCA: a Threat to Fair Use?

Because section 1201(a)(1) prohibits circumvention, and the doctrine of fair use is an affirmative defense to infringement, the DMCA does not (theoretically) threaten fair use. However, many legal scholars have concluded, from a practical standpoint, that the prohibitions on circumvention are corrosive to the doctrine of fair use. The statute potentially allows content producers to lock public domain works and uncopyrightable ideas behind technological protection measures. Circumvention of those measures can result in liability, even if the purpose of the circumvention (to gain access to the underlying copyright to make fair use of the work) is lawful. Return to Jane Ginsburg’s article for a brief overview of these concerns (p 21-26).

The fair use defense (which courts tend to conflate with the reverse engineering defense) has arisen recently in the context of mod-chips. A mod-chip is a small, electronic device that is used to disable access controls in computers, specifically videogame consoles. Mod-chips can be used to play illegally pirated games, but can also be used for many (potentially) legitimate purposes, such as enabling the use of different operating systems, developing homebrewed software, defeating region-encoding and backing-up legally owned software. Here is a brief video of someone installing a mod-chip in a Playstation 2 console. In the past, consumers could visit local videogame retailers who would provide and install mod chips in their hardware for a nominal fee. Post Divineo, this market has evaporated, and consumers are left to obtain and install mod chips of their own accord.

With that in mind, read Sony v. Divineo. Did it distress you when the court in Divineo held that lawful downstream fair use of circumvention devices did not relieve the defendant of liability? Spend a few moments exploring the Divineo website. The legal debate surrounding mod-chips has real world consequences. Read the following article detailing the U.S. Air Force’s difficulty in running Linux on Sony’s Playstation 3 console. Though it is legal for the Air Force to make their Playstation 3s interoperable with Linux, it is illegal for a retailer to sell the Air Force the mod-chip required to achieve that interoperability. Is that logical? The Air Force has the resources to overcome the limitations of the DMCA. But where does that leave the average consumer who has been effectively denied a means of achieving lawful use? Litigation may be the only recourse.

For our in-class discussion, consider whether it is true that (in the words of former President Clinton) a “careful balance" has been struck between the copyright owner’s need to protect her property from pirates in the digital age against the public’s right to make fair use of her underlying work. Should the DMCA be repealed? In part or in full?