1. March 13, 2002Computer Systems Lab Colloquium1 IMPLICATIONS OF ANTI- CIRCUMVENTION RULES FOR INNOVATION Pamela Samuelson, UC Berkeley, at Computer Systems Lab. Colloquium, March 13, 2002

2. Computer Systems Lab Colloquium2 OVERVIEW The what & why of the DMCA anti- circumvention rules Examples of anti-competitive/anti-innovation claims of DMCA violations Some/all of these claims seem plausible given early DMCA decisions Less restrictive alternatives are possible The logic of the DMCA rules makes more restrictive alternatives (e.g., SSSCA) likely Reasons to be hopeful

3. March 13, 2002Computer Systems Lab Colloquium3 17 U.S.C. 1201 (a)(1)(A): Illegal to circumvent a technical measure copyright owners use to control access to their works (a)(2): Illegal to make/distribute tool to circumvent access controls (b)(1): Illegal to make/distribute tool to bypass other technical measures used by copyright owners to protect works No counterpart to (a)(1)(A) for bypassing copy controls (compromise to enable fair uses?)

4. March 13, 2002Computer Systems Lab Colloquium4 1201(a)(1)(A) EXCEPTIONS Achieving program-to-program interoperability (OK to make tools too) Encryption research & computer security testing (many limitations; but also OK to make (a)(2) tools, but silent on (b)(1)) Law enforcement/national security (right to make tool not explicit) Library/nonprofit “shopping” privilege; privacy protection; protecting kids

5. March 13, 2002Computer Systems Lab Colloquium5 MYSTERIOUS 1201(c) 1) No effect on rights & limits under this title, including fair use 2) No effect on contributory infringement (preserve Sony Betamax defense?) 3) No mandate to build technologies to interpret technical measures 4) No effect on free speech/press

6. March 13, 2002Computer Systems Lab Colloquium6 LOC RULEMAKING LOC authorized to conduct periodic rulemakings to determine if TPMs interfering with fair and other noninfringing uses (in response to library/educator concerns) If so, LOC can exempt from (a)(1)(A) affected classes of users/works—but not (a)(2) or (b)(1) Two new LOC exemptions: –if access control not working & have right to lawful access –to determine what filtering software blocks

7. March 13, 2002Computer Systems Lab Colloquium7 OTHER DMCA RULES 1202 protects the integrity of “copyright management information” (e.g., watermarks) from alteration/removal 1203 gives broad remedies to successful plaintiffs (injunctions, statutory damages, etc.—even if no actual infringements!) 1204 makes willful violation of 1201 or 1202 for profit/financial gain a crime

8. March 13, 2002Computer Systems Lab Colloquium8 ORIGINS OF DMCA Legacy of the Clinton Administration’s NII policy (White Paper on IP & NII in 1995) Theory: copyright owners need more legal protection before they’ll make content available in digital networked environments WIPO Copyright Treaty in 1996: –Need for “adequate protection” and “effective remedies” vs. circumvention of TPMs –Protect CMI vs. removal/alteration for infringement

9. March 13, 2002Computer Systems Lab Colloquium9 DMCA & WIPO TREATY Proposed WIPO treaty would have required nations to outlaw circumvention technologies Highly controversial at WIPO conference Compromise was intended to allow nations to deal with as they thought best DMCA passed in 1998 to implement the WIPO treaty—but far broader than required US officials/MPAA/RIAA to other countries: adopt DMCA rules as best implementation

10. March 13, 2002Computer Systems Lab Colloquium10 SONY DMCA CLAIMS vs. Connectix & Bleem: emulation programs bypassed PlayStation game TPMs vs. Gamemaster: game enhancer software violated DMCA because bypassed country code (gave Sony control over complementary products & stopped competition w/ Sony’s game enhancer) vs. Aibohack: not a lawsuit but a threat letter to owner of site where owners of Aibo robot dogs posted programs to make dogs do different tricks

11. March 13, 2002Computer Systems Lab Colloquium11 OTHER ANTI-INNOVATION CLAIMS Similar threat to Aibohack made against follow-on innovators as to digital Lego system RealNetworks v. Streambox: enjoining “VCR” that bypassed RN authentication procedure & allowed personal use copies of streamed content Microsoft claimed Slashdot violated DMCA because users posted instructions on how to bypass click-through license forbidding copying or disclosure of interface specification Blizzard v. bnetd: open source emulation program enabled users to form private game network; said to bypass TPM

12. March 13, 2002Computer Systems Lab Colloquium12 WHY PLAUSIBLE Country codes/watermarks/streaming being treated as access controls Reverse engineering them violates 1201(a)(1)(A) Making or adapting a tool to reverse engineer them violates (a)(2), as does making/distributing software capable of bypassing the TPM No underlying act of infringement needs to occur Fact that no infringement is even possible may be irrelevant! Sony & Lego relented—but 1201 theory plausible

13. March 13, 2002Computer Systems Lab Colloquium13 EARLY CASELAW Gamemaster case: –country code held to be access control –software that enabled playing of Sony games coded for Japan violated DMCA –game enhancer program that competed with Sony software held illegal, even though no copyright infringement occurred or was enabled –messy facts on TM claims obscured issues

14. March 13, 2002Computer Systems Lab Colloquium14 REALNETWORKS CASE 1201(c)(1) means nothing re fair use 1201(c)(2) means nothing re contrib. 1201(c)(3) means nothing re no mandate Bypassing authentication procedure violates (a)(1)(A), even if no infringement thereafter (no right to interoperate with data?) Other firms (Voquette) living in fear

15. March 13, 2002Computer Systems Lab Colloquium15 UNIVERSAL v. REIMERDES Preliminary injunction vs. Reimerdes & Corley/2600 in Jan. 2000 to stop posting of DeCSS on web as violation of 1201(a)(2) CSS held to be an access control (why not a copy- control?) for DVD movies DeCSS bypassed CSS All statutory & constitutional defenses rejected Reimerdes settled; Corley (sadly) did not

16. March 13, 2002Computer Systems Lab Colloquium16 BAD DICTA JAN. 2000 ISP safe harbor rules for copyright infringement don’t apply to 1201 claims; ISP can be strictly liable for user posting of circumvention software Corley (a mere journalist) lacked standing to raise interoperability, encryption research, computer security testing, or fair use defenses (even if they might be valid as to Jon Johansen) because Corley wasn’t trying to make an interoperable program, do encryption research, or make a fair use No right to interoperate with data (DVD movie)

17. March 13, 2002Computer Systems Lab Colloquium17 RULING IN AUG. 2000 Same analysis of 1201(a)(2) Shamos testified as to potential harm of DeCSS: used DeCSS to copy movie & distribute via Internet (DivX compression) Didn’t believe Johansen re DeCSS as necessary step to developing Linux player Likened DeCSS to deadly plague Functionality of DeCSS limits 1 st A scope

18. March 13, 2002Computer Systems Lab Colloquium18 UCS v. CORLEY (2d Cir. 2001) Praised & followed Kaplan’s analysis Some good news? –Software is 1 st A protected speech (programmers express themselves in code) –No distinction between source & object (object code is like Sanskrit) –More general affirmation of 1 st A protection for scientific & technical info (e.g., instructions) –“Intermediate scrutiny” applies

19. March 13, 2002Computer Systems Lab Colloquium19 MORE ON UCS v. CORLEY Little discussion of statutory issues (but rejects as “perversion” of 1 st sale defense idea that users have rights to use access-control content in unlicensed technology) 1201(c)(1) does not preserve fair use, but Corley lacks standing to raise (even if JJ was a fair user) Threats & dangers of Internet for content lessen scope of 1 st A protection for software (in conflict with ACLU v. Reno?)

20. March 13, 2002Computer Systems Lab Colloquium20 INTERMEDIATE SCRUTINY Laws directly regulating content of speech are generally subject to “strict scrutiny” –gov’t must show “compelling” interest –least restrictive means of accomplishing “Rational basis” for non-speech rules: reasonable means to attain govt objective (even if weak) “Intermediate” for content-neutral laws affecting speech: –gov’t interest must be “substantial” –law must be narrowly tailored to achieve the objective

21. March 13, 2002Computer Systems Lab Colloquium21 2d CIR. RULING Substantial gov’t interest in protecting copyrighted works vs. “piracy” DMCA narrowly tailored because of specific exceptions, LOC rulemaking Corley failed to prove sufficiency of less restrictive alternatives than DMCA May be inconsistent with DVD-CCA v. Bunner, but 2d Cir. declines to follow Even linking violates DMCA—no 1 st A defense

22. March 13, 2002Computer Systems Lab Colloquium22 LESS RESTRICTIVE WAYS Special purpose anti-circumvention rules (e.g., AHRA, decrypt cable TV signals) Outlaw circumvention to facilitate infringement Outlaw aiding and abetting copyright infringement through circumvention or circumvention tools Outlaw public distribution of technologies designed to circumvent with the intent of facilitating copyright infringement (RE article) Congress never considered less restrictive alternatives because of intense politics

23. March 13, 2002Computer Systems Lab Colloquium23 MORE RESTRICTIVE WAYS Security Systems Standards & Certification Act (SSSCA) proposed by Sen. Hollings –Digital content won’t really be secure until DRMs are embedded in all interactive digital technology (designed not to play unDRM content such as MP3 files of music) –Computer/software industry has resisted “voluntary” standards on DRMs; SSSCA may be a credible threat to change this industry’s tune –Mandating DRMs by either private or public legislation is the only way to ensure they won’t be competed away

24. March 13, 2002Computer Systems Lab Colloquium24 PRECEDENTS Public legislation: –Audio Home Recording Act: serial copy management system (SCMS) chips required in consumer grade DAT machines –17 U.S.C. sec. 1201(k): future VCRs must build in Macrovision anti-copying technology Private legislation: –Content industry consortium (DVD-CCA) licenses for DVD players require installation of CSS –SDMI aimed to achieve similar result

25. March 13, 2002Computer Systems Lab Colloquium25 QUESTIONING SSSCA Overbroad & ambiguous (e.g., digital watches) SSSCA would impede many beneficial uses of IT & add expense to IT systems SSSCA will retard innovation & investment in IT SSSCA may make systems more vulnerable to hacking (can one virus take down all systems?) Maybe the government and the content industry shouldn’t tell the IT industry how to build its products Will rearchitecture of the Internet be next?

26. March 13, 2002Computer Systems Lab Colloquium26 REASON FOR HOPE? Sup. Ct. decided to hear Eldred’s appeal in constitutional challenge to CTEA House leadership is not keen on SSSCA Rep. Rick Boucher believes in fair use and balanced copyright law Courts less subject to “capture” than legislature “Bad” decisions may be rejected or narrowed People (like you?) believe in balanced copyright rules (but collective action problem to mobilize)

27. March 13, 2002Computer Systems Lab Colloquium27 CONCLUSION Congress passed the DMCA thinking it was necessary to stop “piracy” Content industry got a broader law than necessary to achieve this goal—and yet they still want more Possible courts will decline to enjoin innovative uses even if seemingly illegal under the DMCA Technology community can help to make Congress aware of broader interests at stake (e.g., innovation, competition, user rights) Get involved; make a difference!