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Report Details DMCA Misuses

A new report from the Electronic Frontier Foundation (EFF) takes aim at the Digital Millennium Copyright Act (DMCA), a controversial law enacted seven years ago to protect intellectual property in the digital age.

"Unintended Consequences: Seven Years Under the DMCA" is a collection of well-known and obscure stories about the misuses of the DMCA.

Among those accounts is that of J. Alex Halderman, a graduate student at Princeton University who, in the fall of 2005, discovered the existence of serious security vulnerabilities in the CD copy-protection software on dozens of Sony BMG titles.

But he delayed publishing his discovery for several weeks while consulting with lawyers in order to avoid DMCA pitfalls. This left millions of music fans at risk longer than necessary.

In October 2003, Halderman had been threatened with a DMCA lawsuit after publishing a report documenting weaknesses in a CD copy-protection technology developed by SunnComm.

Halderman revealed that holding down the shift key on a Windows PC would render SunnComm's copy-protection technology ineffective. SunnComm executives threatened legal action under the DMCA.

Stories like these show that "rather than being used to stop piracy, the DMCA has predominantly been used to threaten and sue legitimate consumers, scientists, publishers and competitors," said EFF senior staff attorney Fred von Lohmann.

The EFF notes that the DMCA's anti-circumvention provisions, which are contained in Section 1201 of the act, were developed in response to obligations imposed on the U.S. by the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty and the concerns of copyright owners that their works would be pirated and made available for download online.

Section 1201 of the DMCA contains a ban on acts of circumvention of Digital Rights Management technologies -- technological measures used by copyright owners to control access to their works -- and a ban on the distribution of tools and technologies used for circumvention.

In its report, the EFF notes that the ban on acts of circumvention applies even where the purpose for circumventing copyright protection would otherwise be legitimate or strike a logical person as legitimate, such as research intended to expose serious security flaws directly caused by copyright protection programming code.

Violations of the DMCA are subject to significant civil and, in some circumstances, criminal penalties.

The EFF's report echoes a report released in late March by The Cato Insitutue, a public policy research foundation.

The Cato report, entitled "Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act," was authored by Timothy B. Lee, a policy analyst at the Show-Me Institute in St. Louis, Mo.

"The result of the DMCA has been a legal regime that reduces options and competition in how consumers enjoy media and entertainment," Lee wrote.

The Recording Industry Association of America declined to comment and the Motion Picture Association of America was not immediately available for comment. Both organizations are staunch supporters of the DMCA.

The EFF recently issued a call for support for House Resolution 1201, the Digital Media Consumers' Rights Act. Congressman Rick Boucher (D-Va.) introduced the bill in March 2005.

HR 1201 requires that CDs must clearly state on their labels if the content is copyright-protected and warn that the disk might not play properly in all devices capable of playing a non-protected audio disc.

The label must also detail the return policy should a CD containing copyright protection technology not play in a device capable of playing an audio CD. Labels must also contain information on any restrictions imposed by the copyright software, such as limits on the number of times a song can be downloaded to a hard drive.

"We believe that the DMCA is overly broad," said Michael Petricone, vice president of the Consumer Electronics Association, which supports HR 1201. "It's a major burden on legitimate innovation and research that chills normal and customary consumer conduct."

But Bruce Sunstein, an intellectual property lawyer based in Boston, disagreed.

"The DMCA is an imperfect piece of legislation, but ever since Adam and Eve shared the apple we live in a world that is imperfect," Sunstein said. "The DMCA provides a fig leaf to content providers, and that's a good thing in the age in which we live.

"I'm not worrying about a chilling effect from the DMCA," he added. "For every story of abuse, there are millions of legal downloads that have been protected against illicit copying by combination of digital rights management and the DMCA."