July 2, 2002Cohen/iLaw1 Recent Litigation: The DMCA Cases Julie E. Cohen Georgetown University Law Center

July 2, 2002Cohen/iLaw2 Overview I. Basic Provisions of the DMCA II. The Cases: Reimerdes/Corley, Felten, and ElcomSoft III. Judicial Interpretation IV. Implications for Future Litigation V. Implications for User Freedoms and Innovation

July 2, 2002Cohen/iLaw3 I. Basic Provisions of the DMCA Anti-circumvention provisions Anti-device provisions Exceptions “Other rights not affected” Remedies

July 2, 2002Cohen/iLaw4 I. Basic Provisions of the DMCA: Anti-Circumvention Provisions May not circumvent Technological measure Effectively controls access to a protected work

July 2, 2002Cohen/iLaw5 I. Basic Provisions of the DMCA: Anti-Device Provisions May not manufacture, distribute, or otherwise traffic in: Technology, product, service, or device Primarily designed/produced for circumvention, or Only limited commercially significant purpose or use other than to circumvent, or Knowingly marketed for use in circumvention Technological measure that Effectively controls access or Protects a right of the copyright owner

July 2, 2002Cohen/iLaw6 I. Basic Provisions of the DMCA: Exceptions Nonprofit libraries Acquisition decisions only No exemption from device prohibitions Law enforcement, intelligence, etc. Reverse engineering for interoperability Lawfully obtained the right to use a copy Information not previously readily available Sole purpose limitation on conduct and devices Sole purpose limitation on sharing of information

July 2, 2002Cohen/iLaw7 I. Basic Provisions of the DMCA: Exceptions (cont’d) “Good faith encryption research” Necessity and good faith effort to obtain authorization “Manner” limits on dissemination of information Credentialing requirements for researchers Information shared with copyright owner Disabling collection of personal information Sole purpose and effect limitations Only if notice and opt-out not provided and disclosed Security testing Sole purpose and “manner” limitations

July 2, 2002Cohen/iLaw8 I. Basic Provisions of the DMCA: “Other Rights Not Affected” Limitations or defenses to copyright infringement, including fair use Free speech or the press Vicarious or contributory liability Design of electronics, computing, or telecommunications equipment

July 2, 2002Cohen/iLaw9 I. Basic Provisions of the DMCA: Remedies Civil remedies –Injunctions “but in no event” a prior restraint –Impoundment/destruction of any device or product –Actual or statutory damages $200-$2500 per violation of §1201 $2500-$25,000 per violation of §1202 Treble damages for repeat violation within 3 years –Costs and attorneys’ fees at court’s discretion Criminal penalties –$500,000 and/or 5 years for first offense

July 2, 2002Cohen/iLaw10 II. The Cases: It’s All About the Anti-Device Provisions Universal City Studios v. Reimerdes/Corley (S.D.N.Y./2d Cir.) Felten v. Recording Industry Ass’n of America (D.N.J.) United States v. Elcom (N.D. Cal.)

July 2, 2002Cohen/iLaw11 II. The Cases Universal City Studios v. Reimerdes/Corley (S.D.N.Y./2d Cir.) –DeCSS developed by a Norwegian teenager, assertedly to create a Linux-based DVD player –Suit against hacker magazine 2600.com and its principals for distributing DeCSS via its Web site –After preliminary injunction barred posting DeCSS, 2600.com provided links to other sites offering DeCSS –Injunction extended to bar linking with knowledge of unlawful technology and intent to distribute –Both parts of injunction upheld on appeal

July 2, 2002Cohen/iLaw12 II. The Cases Felten v. Recording Industry Ass’n of America (D.N.J.) –Computer science professor Felten cracked the SDMI algorithm and arranged to present results at conference –RIAA notified conference organizers of possibility of lawsuit; Felten withdrew paper amid uproar –RIAA issued press release disclaiming intent to sue; Felten presented paper at a different conference –Felten filed declaratory judgment action challenging lawfulness of possible suit or prosecution –Court granted defense motion to dismiss

July 2, 2002Cohen/iLaw13 II. The Cases United States v. Elcom (N.D. Cal.) –Moscow-based software firm developed Advanced eBook Processor, which disables copy-protection on files formatted for Adobe eBook Reader –Elcom distributed AEBPR via a Web site accessible in U.S. –ElcomSoft programmer Sklyarov came to the U.S. to atttend a software conference, and was arrested –Sklyarov agreed to cooperate in prosecution of Elcom –Court rejected constitutional challenges raised in motion to dismiss; case will be tried this summer

July 2, 2002Cohen/iLaw14 III. Judicial Interpretation Threshold questions of scope Relationship to fair use and contributory infringement doctrines Construction of reverse engineering and encryption research exceptions First amendment challenges Article I challenges

July 2, 2002Cohen/iLaw15 III. Judicial Interpretation Threshold questions of scope –“Effective” technological measure doesn’t mean hack-proof Would “gut the statute” –Linking equals distribution if done knowingly –Jurisdiction over Elcom is permissible

July 2, 2002Cohen/iLaw16 III. Judicial Interpretation Relationship to fair use and contributory infringement doctrines –No “substantial noninfringing use” defense Sony “overruled” by Congress “to the extent of any inconsistency with the new statute” Innocent motivation irrelevant –No general fair use defense via §1201(c)(1)

July 2, 2002Cohen/iLaw17 III. Judicial Interpretation Construction of reverse engineering and encryption research exceptions –Limited standing to invoke exceptions –Disseminating information to the public vitiates the exceptions

July 2, 2002Cohen/iLaw18 III. Judicial Interpretation First amendment challenges –Code is speech, but so what? Content-neutral regulation of function Decryption = contagion Least restrictive means not required –No first amendment overbreadth defense No standing to invoke fair uses by others Not all fair uses are eliminated –High threshold for chilling effects

July 2, 2002Cohen/iLaw19 III. Judicial Interpretation Article I challenges –Improper application of an as-applied/facial overbreadth distinction Again, no standing to invoke fair uses by others –“Horse and buggy” fair use saves the statute

July 2, 2002Cohen/iLaw20 IV. Implications for Future Litigation Extent of statute’s reach very unclear Limits on standing buttress selective prosecution Zone of safety for researchers? Profound hostility to open source Designing a good test case

July 2, 2002Cohen/iLaw21 IV. Implications for Future Litigation Extent of statute’s reach very unclear –“Effective” technological measures include …? –When is a link actionable? –What counts as a prohibited technology? Research papers? Other research work product? –What kinds of information-sharing fall within the exceptions? –DMCA applies globally (to anything distributed online)?

July 2, 2002Cohen/iLaw22 IV. Implications for Future Litigation Limits on standing buttress selective prosecution –Careful selection of test cases by industry 2600.com, not Prof. Jane Ginsburg Back-pedaling in Felten –Judicial avoidance of constitutional challenges Third-party standing issues Credible threats of prosecution/suit

July 2, 2002Cohen/iLaw23 IV. Implications for Future Litigation Zone of safety for researchers? –Researchers won’t be sued … maybe Who qualifies as a “researcher”? What qualifies as a “technology”? –Foreign researchers fear arrest and prosecution

July 2, 2002Cohen/iLaw24 IV. Implications for Future Litigation Profound hostility to open source –Information-sharing is severely restricted –Credentialing function of statute

July 2, 2002Cohen/iLaw25 IV. Implications for Future Litigation Designing a good test case –The right plaintiff: If Felten isn’t, who is? Academic who does more than publish a paper Open source developer in good standing (not a “cracker”) –As-applied challenge, or dramatic change in background facts –Is statute void for vagueness? Written in such a way that can be construed to have more than one meaning? Mid-20 th century vagrancy cases (disparities in enforcement)

July 2, 2002Cohen/iLaw26 V. Implications for User Freedoms and Innovation Control of use Development of technologies and standards

July 2, 2002Cohen/iLaw27 V. Implications for User Freedoms and Innovation Control of use –Technology providers can’t rely on third-party standing –Users who aren’t technology-savvy are out of luck Space-shifting Expired subscriptions and back issues Selling used eBooks/DVDs?? Excerpting –Unless some works become wholly unavailable from other sources??

July 2, 2002Cohen/iLaw28 V. Implications for User Freedoms and Innovation Development of technologies and standards –Some concrete predictions Increased risk of format obsolescence Obstacles to search tools Effects on other hardware/network standards –General costs to the innovative process Collaboration with foreign researchers Collaboration via open source communities/networks Penetration of open source systems