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

2. 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.

3. 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

4. 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…

5. 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

6. 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

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

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

9. 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

10. 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.

11. 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.

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

13. 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

14. 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.

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

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

17. 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

18. 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.

19. 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

20. 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.

21. 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.

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

23. 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?

24. 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?

25. 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

26. 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."

27. 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.

28. 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

29. 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.

30. 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.

31. 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.

32. 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

33. 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.

34. 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.

35. References
Touretzky, David, “A Great Debate: Is Computer Code protected speech?”
Digital Millennium Copyright Act: Status and Analysis,
Universal City Studios vs. Reimerdes, 111 F. Supp. 2d 294, 332 (S.D.N.Y. 2000)
Is Copyright Ethical?
The Economy of Ideas,