Digital Millennium Copyright Act (DMCA) An ethical and legal discussion Lei Pan, Dmitriy Polishchuk

DMCA Introduction to DMCA DMCA represents the most comprehensive reform of United States copyright law in a generation. Implements WIPO. Attempts to update copyright laws for the digital environment.

Presentation outline Origin of the DMCA Legal Discussion Analysis of the DMCA language Legal arguments in favor of the DMCA Legal arguments against the DMCA

Presentation Outline Ethics of the DMCA Ethical argument in favor of the DMCA Ethical argument against the DMCA Ethical Issues: ethics of copyright, ethics of the First amendment , ethics of fair use…

Origin of the DMCA History of copyright laws Statue of Anne, England, 1710 U. S. Constitution, Article I, section 8, 1790 U. S. Copyright Act, 1790 Folsom vs. Marsh, 1841 Fair use concept first introduced U. S. Copyright revisions, 1909 and 1976 Continues next slide

Origin of the DMCA History of copyright laws (continue) Circulation of computer software, 1990 WIPO Copyright Treaty, 1996 WIPO Performances and Phonograms Treaty, 1996. The Digital Millennium Copyright Act, 1998

DMCA Timeline Legislative and Executive Bill first introduced in July, 1997 Signed into law by President Clinton in October, 1998

Stakeholders Authors Publishers Consumers Libraries and educational institutions Government Researcher the public

Legal analysis of the DMCA The Five Titles Implement WIPO Internet Treaties Establish safe harbors for online ISPs Permit temporary copies of programs during computer maintenance Make miscellaneous amendments to US copyright law Create sui generis protection for boat hull designs

Title I. WIPO Treaties Implementation. New chapter to Title 17 of U.S. Code. Section 1201 – Circumvention of copyright protection systems. Prohibits unauthorized access through circumvention of copyright protection systems. Anti-Trafficking Provision: prohibits the manufacture and distribution of the circumvention technology.

There are Exceptions Reverse Engineering Exception Exception for Law Enforcement and intelligence Encryption research exceptions Security testing exceptions Exceptions for non-profit Libraries, Archives, and educational institutions.

Title I: Section 1202 – Copyright Management Information Prohibits tampering with copyright management information (CMI).

Title II: Online Service Provider (OSP) Liability Limits OSP liability for copyright infringement. Eligibility requirement Safe Harbors for system storage and information locating tools Safe Harbors for system caching Safe Harbors for transmitting and routing

Title III: Computer Maintenance or Repair Copyright Exemption Amends section 117 of the US Copyright Act Give exemptions for copyright infringement occurred in the process of computer maintenance or repair.

Title IV: Miscellaneous Provisions Distance educational study Exemptions for libraries and archives.

Testing the DMCA Cases: MPAA vs. Emmanuel Goldstein Universal vs. Reimerdes The SDMI Challenge (Ed Felton) Adobe and DOJ vs. Elcomsoft and Sklyarov

Legal Arguments in favor of the DMCA Fulfills the government role as defined in the Constitution. U. S. Constitution, Article I, Section 8 Prevent intellectual property piracy. Access control is nothing new. Previous case history

Legal arguments in favor of the DMCA DMCA does not prevent “fair use”. Fair use does not include making unqualified and complete copies If there is no legal access, there is no legal use, fair or otherwise. First Amendment rights are not violated. Code is not speech. Code carries functions.

Legal Arguments against the DMCA DMCA limits the traditions of “fair use”. Prevents others from making fair use of copyrighted works by depriving them of the means to do so. Limits scientific research

Code is Speech Bomb-making instructions are not bombs. A drawing of a gun is not a weapon. All are fully protected speech How is Code different? Code is a set of instructions to a machine.

Code is not dangerous Computer programs don’t do anything. Merely expressions of ideas DeCSS does not pirate DVD movies. A person must insert the DVD into a drive, load DeCSS onto a digital computer, and run it.

Vagueness of the DMCA DMCA is too vague. Language is not understandable to persons of ordinary intelligence Such persons are subject to discriminatory enforcement.

Ethical Discussion of the DMCA DMCA, like all copyright laws, are legal provisions with ethical origins. What does ethics mean? DMCA attempts to answer hard ethical questions. If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? If we can't get paid, what will assure the continued creation and distribution of such work?

Ethical Discussion of the DMCA One more hard question that we would like you to think about is: Is it ethical to view intellectual property rights the same way we view physical property rights, something which fundamental to our lives; or is it ethical to see our creations and their expressions as the collective property of humanity?

Ethical arguments in favor of DMCA The DMCA is a legislative mean to protect copyright. Traditional Copyright Principles Copyrights are personal property rights; Copyright provides incentives for more creativity

It is unethical for anyone, including researcher, to violate copyright law under the claim of free expression and scientific research. Interesting quote from a DMCA advocate: "Academics make a living from free speech. They don't make a living from copyrights, and they don't sell copyrighted works, …,They use them, quote them, pass them around, and use them in publishing their research."

Another Ethical Argument in Favor of the DMCA Undue Criticism Regardless of controversy, some of the non-anti-circumvention provisions are proving useful and relatively uncontroversial and does not deserve the same criticism intended for those prosecuting Sklyarov.

DMCA Title III The DMCA’s Title III provisions provide significant protection, legal and ethical, against copyright infringement which arise from postings made by third parties on Internet websites. Hendrickson vs. eBay

DMCA Creates Important Exception For ISP DMCA creates an important exception for "service providers" that meet certain requirements. Without this exception, countless Internet publishers and other online companies would face the impossible task of policing everything that occurs on their watch.

Ethical Arguments Against DMCA Attributing a work or idea to one author only, excludes and denies the contributions made by countless others to its generation. Copyrights are unethical, and to some, immoral. They are, after all, government-granted monopolies.

Ethical Argument Against the DMCA It is unethical for the DMCA to restrict the free expression in scientific research. Ed Felton Case Despite an “exemption” in the DMCA for “Encryption Research, “, several scientists are refraining from publishing or presenting their findings regarding flaws in access-control software and encryption research projects out of fear of being found civilly, and potentially, criminally liable for violations of the anti-circumvention sections of the DMCA.

Ethical Arguments Against the DMCA DMCA promotes unfair business practices Promotes a particular business model Unethical for a law to prefer one business model over another

Concluding Ethical Arguments Against DMCA DMCA’s protections go too far. "encryption research" exemption, appear to be too difficult to meet. Many people will choose to not share their information or research for fear of being prosecuted under the DMCA. Balance must be established.

Conclusion The DMCA is an attempt by the U.S. government to modify the prior copyright law to respond to challenges of the digital millennium. DMCA applies tangible laws to intangibles world Full of controversies, legally and ethically Organizations should adjust their policies to take advantage of the DMCA provisions and exempts.

References Touretzky, David, “A Great Debate: Is Computer Code protected speech?” http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/Debate/ Digital Millennium Copyright Act: Status and Analysis, http://www.arl.org/info/frn/copy/dmca.html http://www-cse.stanford.edu/classes/cs210/projects-00-01/dvd-copying Universal City Studios vs. Reimerdes, 111 F. Supp. 2d 294, 332 (S.D.N.Y. 2000) Is Copyright Ethical? Http://www.bc.edu/bc_org/avp/law/st_org/iptf/commentary/content/1999060505.html The Economy of Ideas, http://www.eff.org/~barlow/EconomyOfIdeas.html