Government Documents Uncover the Story of the DMCA

Jennifer Morales

LIS 526

Spring Quarter 2008

URL: http://staff.washington.edu/jemor/index.html

Government Documents Uncover the Story of the DMCA

Overview Article:

The Electronic Frontier Foundation. Unintended Consequences: Seven Years under the DMCA v.4 April 2006 Retrieved June 01 2008 from: http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca

Abstract:

The Digital Millennium Copyright Act (DMCA) of 1998 has been and continues to be controversial across the spectrum of content creators, distributors and consumers.  Currently in its tenth year, the DMCA has had wide-ranging effects on the distribution, access and use of information, particularly in regards to fair use of copyrighted work for research and teaching.  This article summarizes the DMCA, highlights some relevant litigated cases and its relevance to the library field. 

Introduction:

From its inception, the Digital Millennium Copyright Act has been and continues to be controversial across the spectrum of content creators, distributors and consumers.  These facts make even a relatively brief review such as this of the DMCA imperative for the information professional.  The DMCA was the U.S. Congressional response to article 11 of the WIPO Treaty which concerning Obligations concerning Technological Measures where “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.” [i]

The United States joined the WIPO treaty primarily to protect the interests of industry leaders in content creation and distribution.  Effective October 28^th 1998 in the closing days of the 105^th Congress, Rep. Howard Coble[ii] (R-North Carolina) US House of Representatives approved the Digital Millennium Copyright Act. It’s full title: To amend title 17, United States Code, [iii] to implement the World Intellectual Property Organization (WIPO) Copyright Treaty and Performance and Phonograms Treaty and for other purposes.”  The most basic gist of why the U.S. created the DMCA in response to the WIPO treaty was simply because the U.S. had become a net exporter of copyrighted works and sought to strengthen its control on access, distribution and use of these works where distribution in electronic format had become normalized. The DMCA is a very complex piece of legislation[iv] with a number of different provisions for various types of protected intellectual property works.  For the purpose of this essay, we will focus on one of the more innovative and also contentious components of the DMCA is that which makes it illegal to circumvent "technological protection measures."  What this means is that it suddenly became a federal crime to break digital encryption schemes on content purchased legally by the consumer.   It also became a crime to share or provide links to websites containing this information. 

There were a large number of interesting comments made the Federal Registrar of Copyrights at the time the DMCA was under consideration.[v]  These comments provide a useful insight on what was to be widely debated for the next ten years.

Figure 1

U.S. vs. Sklyarov:

The first case to be prosecuted under the DMCA by the U.S. Attorney's Office was that of U.S. v Sklyarov.  Moscow-based software startup ElcomSoft Ltd. and senior programmer Dmitry Sklyarov, 27, were indicted by a federal grand jury in California on five counts of copyright violations for programming an application known as the Advanced E-Book Reader Processor (AEBRP) that bypasses security encryption in Adobe System's[vi] Acrobat eBook Reader, allowing for a user that purchased an E-book to by-pass usage restrictions inherent to Adobe’s E-book reader systems that limited users to reading E-Books from the PC on which they purchased the E-book.  Skylrarov’s program allowed users to load their E-books on other portable devices such as Palm-pilots or perhaps a laptop used during business travel. 

At the time, Sklyarov was working on his Ph.D. in encryption research, came to the U.S. to present his findings at a DefCon technical researchers convention.[vii]  Also, under Russian law, circumvention of technological protection measures of the type used by Adobe is not outlawed.  Although the DMCA is designed to deter copyright infringement, Sklyarov was not charged with infringement, but developing a software technology that potentially, allows others to.  After a huge public outcry in the tech community[viii], Adobe dropped its suit against Sklyarov and in 2002; ElcomSoft was acquitted of all charges.[ix]  The story of Sklyarov was just the beginning. 

Impact on Research

There have been a number of high-profile cases similar to Sklyarov where encryption researchers were prosecuted under the DMCA for either distributing or developing information on encryption research, even when these activities fell under fair use provisions of the US Copyright Act. [x]  Two notable examples were cases brought against encryption researchers making efforts to publish or make public the results of their work.  Secure Digital Music SDMI threatened encryption researcher Edward Felton with liability under the DMCA if he publicly presented his findings on defeating digital music locks to the scientific community.  In 2001 a technical magazine named 2600[xi] was sued and effectively barred from distributing information about a software program called DeCSS which was designed to circumvent region-coded DVD’s and allow playback on non-supported platforms such as Linux OS.   In order to minimize what web activists refer to as “the chilling effects[xii] of the DMCA in regards to litigations tendency to quash free speech and fair use principles,” these and similar cases have been extensively documented by the Electronic Frontier Foundation[xiii] and web activists have reached a point of cultural saturation where rulings on the effects of the DMCA must be continually addressed. 

Role of Librarian of Congress

The DMCA raises many legal and practical issues for the library and technical communities.  Luckily, the DMCA itself requires that the Librarian of Congress, on recommendation of the Federal Registrar of Copyrights, consider exemptions on a triennial basis as to whether access to particular classes of works protected by anti-circumvention technology should be allowed.[xiv]

Of particular interest is the new triennial exemptions effective October 27, 2000, that permits the use of "audiovisual works included in the educational library of a college or university's film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors."[xv]  The ruling on these exemptions provides freedoms from anti-circumvention provisions for non-profit libraries, archives, and other educational institutions[xvi].  This set of exemptions is designed solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work.  On November 27^th of 2006 Billington, the Librarian of Congress[xvii] issued a secondary, updated triennial rule establishing three additional exemptions to the DMCA’s restriction the use of anti-circumvention measures which limit fair use access to works.  The six exempted categories are:

“1. Audiovisual works used by educational settings to compose compilations of works for educational purposes.

2. Software distributed in obsolete formats for archival purposes when the original media is not readily available in the commercial sphere.

3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

4. Literary works distributed in eBook format contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

5. Firmware that disable wireless telephone connecting to a wireless telephone communication network.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.[xviii]

These exemptions as a class are provided to both protect the principle of fair use[xix] of copyrighted works and the ability of consumers to legally access works in non-infringing ways. Even with these exemptions in place, libraries need to be aware that the DMCA will increase the likelihood that content with be both distributed in electronic format and be protected by proprietary access mechanisms.  Librarians will need to closely examine how they obtain, store and provide access to digital works, be prepared to bargain for a hardcopy or original of a given work, and understand the limitations of access for digital works.[xx] 

 While these exemptions provide a temporary relief, libraries and other cultural memory institutions remain concerned that these TPM’s still give too much control to the copyright owner since, as we saw at the beginning with the Sklyarov case, content is often distributed using special access mechanisms which are designed to limit the publics’ general access and use of a given work.  While the DMCA does allow the above exemptions to the general anti-circumvention provision, the ban on the distribution of circumvention devices and technologies remains.  This means is that these exemptions are of limited use for libraries and similar institutions, which are under constant budgetary pressures because most would not be able to employ the services of a cryptographer to break access mechanisms.  But who knows, maybe this is the wave of the future for the motivated systems-librarian. 

These exemptions are placed specifically to advance the work of preservation, distribution of meaningful fair use access to digital materials[xxi] that are central to the work of the information professional.  With the above exemptions in place, the Library of Congress and the United States Copyright Office continue to plan and address fair use, preservation and collection activities relevant to librarianship through the National Digital Information Infrastructure and Preservation Program (DNIIPP).[xxii]  The library community will still need to continue its vigilance in maintaining access to information to further its mission in education, research and teaching. 

For more information on this topic, please view the United States Copyright Office for updates to current legislation[xxiii] in progress on intellectual property, copyright and the DMCA.

Annotated Bibliography:

1. Anderson, Byron. A Primer on Copyright Law and the DMCA, The Reference Librarian, The Reference Librarian no. 93 (2006) p. 59-71

2. Billington Approves DMCA Exemptions. American Libraries v. 38 no. 1 (January 2007) p. 19

3. Digital Millennium Copyright Act—17 U.S.C. §§ 1201-1205 Computer Crime and Intellectual Property Section, United States Department of Justice , http://www.usdoj.gov/criminal/cybercrime/ipmanual/05ipma.pdf

Detailed case reviews of individuals and corporate prosecutions under the United States Justice Department Cyber crime Division.

4. Electronic Frontier Foundation. Unintended Consequences: Seven Years under the DMCA v.4 April 2006  Retrieved June 01 2008 from: http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca

5. House Committee on Energy and Commerce Witness Testimony: Ms. Debra Rose Senior Legislative Counsel H.R. 107, The Digital Media Consumers' Rights Act of 2003 Subcommittee on Commerce, Trade, and Consumer Protection May 12, 2004 http://energycommerce.house.gov/reparchives/108/Hearings/05122004hearing1265/Rose1993.htm

In this House Committee Statement, legislative council for the Entertainment Software Association strongly opposes II. H.R. 107 on the basis that it “ELIMINATES DMCA PROTECTIONS AND LEGALIZES CIRCUMVENTION DEVICES: Under the misleading title of "Fair Use Amendments," section 5 of H.R. 107 eliminates the protections of the DMCA and opens the flood gates for massive piracy of copyrighted works. H.R. 107 Legalizes Trafficking in "Hacking" Tools.”

6. Index of ElcomSoft, Dmitry Sklyarov, Adobe, US Government and DMCA-related coverage Planet PDF Home of the PDF Community Retrieved June 01 2008 from: http://www.planetpdf.com/mainpage.asp?webpageid=2365#othercoverage

7. Internet Society, Chilling effects of DMCA on Encryption Research Member Briefing, October 2002 http://www.isoc.org/briefings/008/

The ISOC is primarily an organization of information technology specialists and researchers whose vested interest is in the free dissemination of information around internet and information technologies.  This article is a detailed legal analysis of the implications of the DMCA, the ISOC’s position and has links to more information on Digital Rights Management. 

8. Joint Study on 17 U.S.C. Sections 109 and 117 Required Pursuant to DMCA Section 104 United November 29, 2000, States Copyright Office, http://www.copyright.gov/reports/studies/dmca/testimony/index.html

Index of Summaries of Testimony for November 29, 2000, Public Hearing Filed in Response to 65 FR 63626.  This is an interesting page that indexes some primary and original responses to the changes made by implementation of the DMCA.  Statements made are by individuals representing organizational stakeholders including encryption researchers, software interests, and an interesting summary on behalf of the American Library Community requesting that Congress address: Interlibrary lending, Unchaining of works, preservation, elimination of unreasonable licensing restrictions, donations and the first-sale doctrine.  

9. LIBRARY OF CONGRESS Copyright Office, Notice of inquiry, 37 CFR Part 201 [Docket No. RM 2005-11], Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies retrieved June 01 2008 from: http://www.copyright.gov/fedreg/2005/70fr57526.html

This is a public notice of the U.S. Copyright’s office “preparing to conduct proceedings in accordance with section 1201(a) (1) of the Copyright Act, which was added by the Digital Millennium Copyright Act and which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works.” This document covers the scope of rulemaking, definition of terms and request for public comment.  At the time of this request, about 400 people submitted comments.  I was surprised at how many different individuals are following this level of federal detail.  Good summary of background process.

10. Lutzker & Lutzker LLP In the Curl of the Wave: What the Digital Millennium Copyright Act and Term Extension Mean for the Library and Education Community ARL: A Bimonthly Report no. 203 (April 1999) http://www.arl.org/bm~doc/curl.pdf

 

11. Report to Congress: Joint Study of Section 1201(g) of The Digital Millennium Copyright Act retrieved June 01 2008 from: http://www.ntia.doc.gov/reports/dmca

National Telecommunication and Information Administration summary report to Congress.  Review of Legislative History, rulemaking procedures behind the encryption research exemption provisions of the DMCA, definition of terms, and a detailed analysis of changes made to section 1201. 

12. United States Copyright Act of 1976 17 U.S.C.§§ 512, 1201-1205, 1301-1332; 28 U.S.C. 4001

Full text of the United States Copyright act with relevant affected sections changed from the DMCA. 

13. U.S. Copyright Office - Statement of the Librarian of Congress ... http://www.copyright.gov/1201/docs/librarian_statement_01.html

Very brief statement of intent of recommendations to modify DMCA.  This document would improve with a list of text links or back-track links. 

14. U.S. Copyright Office - Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works retrieved June 5, 2008 from http://www.copyright.gov/1201/ These exemptions went into effect upon publication in the Federal Register on November 27, 2006, and will remain in effect through October 27, 2009.

15. U.S. Copyright Office - Public Hearing November 29, 2000
    Summaries of Testimony, Prepared Statements, and Transcript Retrieved June 6, 2008 from: htp://www.copyright.gov/reports/studies/dmca/testimony/hearings.html

16. U.S. Congressional Report - Joint Study on 17 U.S.C. Sections 109 and 117 Required Pursuant to DMCA Section 104 Public Hearing November 29, 2000, Summaries of Testimony, Prepared Statements, and Transcript retrieved June 5, 2008 from http://www.copyright.gov/reports/studies/dmca/testimony/hearings.html

 

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[i] WORLD INTELLECTUAL PROPERTY ORGANIZATION

COPYRIGHT TREATY http://www.wipo.int/documents/en/diplconf/distrib/94dc.htm

[ii] H.R. 2281 by Rep. Howard Coble (R-NC) on July 29, 1997

[iii] 17 U.S.C. 512, 1201-1205, 1301-1332; 28 U.S.C. 4001

[iv] Digital Millennium Copyright Act—17 U.S.C. §§ 1201-1205 http://www.usdoj.gov/criminal/cybercrime/ipmanual/05ipma.pdf

[v] U.S. Copyright Office - Public Hearing November 29, 2000

[vi] Adobe Systems - http://www.adobe.com/

[vii] “Free Sklyarov News Index” Retrieved June 6, 2008 http://freesklyarov.org/

[viii] “Free Sklyarov News Index” Retrieved June 6, 2008 http://freesklyarov.org/

[ix] Adobe-Hack Lawyers: Toss the Case, Farhad Manjoo, Wired, April 1, 2002 http://www.wired.com/politics/law/news/2002/04/51460

[x] Electronic Frontier Foundation. Unintended Consequences: Seven Years under the DMCA v.4 April 2006  Retrieved June 01 2008 from: http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca

[xi] 2600 retrieved June 01 2008 from: http://www.2600.com/

[xii] Internet Society, Chilling effects of DMCA on Encryption Research Member Briefing, October 2002 http://www.isoc.org/briefings/008/ and http://www.chillingeffects.org

[xiii] Electronic Frontier Foundation http://www.eff.org

[xiv] LIBRARY OF CONGRESS Copyright Office, Notice of inquiry, 37 CFR Part 201 [Docket No. RM 2005-11], Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies retrieved June 01 2008 from: http://www.copyright.gov/fedreg/2005/70fr57526.html

[xv] Ibid

[xvi] Billington Approves DMCA Exemptions. American Libraries v. 38 no. 1 (January 2007) p. 19

[xvii] Library of Congress http://www.loc.gov

[xviii] LIBRARY OF CONGRESS Copyright Office, Notice of inquiry, 37 CFR Part 201 [Docket No. RM 2005-11], Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies retrieved June 01 2008 from: http://www.copyright.gov/fedreg/2005/70fr57526.html

[xix] U.S. Copyright Office Fair Use Provisions http://www.copyright.gov/fls/fl102.html

[xx] Anderson, Byron. A Primer on Copyright Law and the DMCA, The Reference Librarian, The Reference Librarian no. 93 (2006) p. 59-71

[xxi] U.S. Copyright Office – Statement of the Librarian of Congress Relating to Section 1201 Rulemaking retrieved June 6, 2008 from: http: www.copyright.gove/1201/docs/librarian_statement_01.htm.

[xxii] National Digital Information Infrastructure and Preservation Program (DNIIPP) http://www.digitalpreservation.gov 

[xxiii] U.S. Copyright Office http://www.copyright.gov/legislation/

footnotes: 

[1] WORLD INTELLECTUAL PROPERTY ORGANIZATION

COPYRIGHT TREATY http://www.wipo.int/documents/en/diplconf/distrib/94dc.htm

[1] H.R. 2281 by Rep. Howard Coble (R-NC) on July 29, 1997

[1] 17 U.S.C. 512, 1201-1205, 1301-1332; 28 U.S.C. 4001

[1] Digital Millennium Copyright Act—17 U.S.C. §§ 1201-1205 http://www.usdoj.gov/criminal/cybercrime/ipmanual/05ipma.pdf

[1] U.S. Copyright Office - Public Hearing November 29, 2000

[1] Adobe Systems - http://www.adobe.com/

[1] “Free Sklyarov News Index” Retrieved June 6, 2008 http://freesklyarov.org/

[1] “Free Sklyarov News Index” Retrieved June 6, 2008 http://freesklyarov.org/

[1] Adobe-Hack Lawyers: Toss the Case, Farhad Manjoo, Wired, April 1, 2002 http://www.wired.com/politics/law/news/2002/04/51460

[1] Electronic Frontier Foundation. Unintended Consequences: Seven Years under the DMCA v.4 April 2006  Retrieved June 01 2008 from: http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca

[1] 2600 retrieved June 01 2008 from: http://www.2600.com/

[1] Internet Society, Chilling effects of DMCA on Encryption Research Member Briefing, October 2002 http://www.isoc.org/briefings/008/ and http://www.chillingeffects.org

[1] Electronic Frontier Foundation http://www.eff.org

[1] LIBRARY OF CONGRESS Copyright Office, Notice of inquiry, 37 CFR Part 201 [Docket No. RM 2005-11], Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies retrieved June 01 2008 from: http://www.copyright.gov/fedreg/2005/70fr57526.html

[1] Ibid

[1] Billington Approves DMCA Exemptions. American Libraries v. 38 no. 1 (January 2007) p. 19

[1] Library of Congress http://www.loc.gov

[1] LIBRARY OF CONGRESS Copyright Office, Notice of inquiry, 37 CFR Part 201 [Docket No. RM 2005-11], Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies retrieved June 01 2008 from: http://www.copyright.gov/fedreg/2005/70fr57526.html

[1] U.S. Copyright Office Fair Use Provisions http://www.copyright.gov/fls/fl102.html

[1] Anderson, Byron. A Primer on Copyright Law and the DMCA, The Reference Librarian, The Reference Librarian no. 93 (2006) p. 59-71

[1] U.S. Copyright Office – Statement of the Librarian of Congress Relating to Section 1201 Rulemaking retrieved June 6, 2008 from: http: www.copyright.gove/1201/docs/librarian_statement_01.htm.

[1] National Digital Information Infrastructure and Preservation Program (DNIIPP) http://www.digitalpreservation.gov 

[1] U.S. Copyright Office http://www.copyright.gov/legislation/