1. COPYRIGHT LAW 2004 Professor Fischer CLASS of April 21 2004: TECHNOLOGICAL PROTECTION MEASURES/DIGITAL MUSIC

2. WRAP-UP: DMCA s. 1201 2 kinds of protection. The DMCA distinguishes between Access Control Measures (stronger) Copy Control Measures (weaker) Note – not technology-specific

3. Jon Johansen: Creator of DeCSS Norwegian 15 years old when he created DeCSS Prosecuted under s. 145(2) 145(2) of the Norwegian Criminal Code, which punishes "any person who by breaking a protective device or in a similar manner, unlawfully obtains access to data or programs which are stored or transferred by electronic or other technical means." Acquitted in Jan. 2003 in Oslo district court

4. Jon Johansen: Creator of DeCSS In March 2003, appeals court orders new trial Second trial results in second acquittal in December 2003 On January 4, 2004, Økokrim (Norwegian prosecutor) announces that it will not appeal Økokrim

5. See an essay by Nowegian professor Jon Bing at: http://www.eff.org/IP/DRM/DeCSS_prosec utions/Johansen_DeCSS_case/20000125_bi ng_johansen_case_summary.html http://www.eff.org/IP/DRM/DeCSS_prosec utions/Johansen_DeCSS_case/20000125_bi ng_johansen_case_summary.html For a Norwegian legal perspective

6. Universal City Studios v. Reimerdes CB p. 581 Plaintiffs: 8 major motion picture studios Defendants included Eric Corley a.k.a. Emmanuel Goldstein, publisher of 2600: The Hacker Quarterly – other two defendants settled and plaintiffs later joined 2600 as a defendant Ps alleged violations of anti-trafficking provisions of DMCA – (1201(a)(2))

7. REIMERDES Did posting violate the DMCA? Did linking violate the DMCA? Is the DMCA constitutional?

8. JUDGE KAPLAN Finds (after full jury trial) 1. Posting DeCSS was a violation of 1201(a)(2) that was not protected by statutory exceptions for fair use, good faith encryption research, or security testing or by fair use, as was linking where knew offending material on linked-to-cite and knew unlawful circumvention technology and link created to disseminating that technology.. 2. Anti-trafficking provisions constitutional under first Amendment 3. Awards injunctive and declaratory relief- to deter

9. REIMERDES APPEAL Second Circuit ruled in November to affirm Judge Kaplan’s order Kathleen Sullivan, the Dean of Stanford Law School and a noted constitutional scholar, argued the appeal for the defendants. Review by the U.S. Supreme Court was not sought

10. More DMCA litigation Considerable number of cases have been brought under the DMCA Some, such as EFF Fred Von Lohmann, have alleged that the unintended consequences of the DMCA litigation is that it is being used not to control piracy but to stifle competition, to impede free expression and scientific research, and to jeopardize fair use. See: http://www.eff.org/IP/DMCA/20030102_dmca_u nintended_consequences.html http://www.eff.org/IP/DMCA/20030102_dmca_u nintended_consequences.html Some prominent commentators like Pamela Samuelson have argued for revision of DMCA Copyright industries counter that the DMCA is necessary to combat the growing problem of piracy

11. 321 Studios Case Which provision of the DMCA was at issue?

12. 321 Studios Case Which provision of the DMCA was at issue? Argument that 321 Studios was violating the anti-trafficking provisions in 1201(a)(2) and 1201(b)(1) by marketing of DVD copying software – DVD Copy Plus and DVD-X-COPY

13. Sklyarov/ElcomSoft Prosecution: ElcomSoft was acquitted

14. DMCA- copyright management provisions S. 1202 Kelly v. Arriba Soft – bad faith requirement Concerns of e.g. Professor Julie Cohen re: privacy – loss of anonymity Authors Rights Concerns of Professor Jane Ginsburg re: weakness of these provisions, failure to prohibit willfully removing/altering the author’s name (as opposed to the copyright owner)

15. NAPSTER: A contributory infringement case What is Napster? How did it allegedly infringe copyright? How did the Ninth Circuit rule in the opinion that you read? What was the court’s reasoning? Do you agree with it?