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.”

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