Copyright infringement and the Digital Millennium Copyright Act of 1998

Copyright Infringement & the Digital Millennium Copyright Act (DMCA) of 1998

This paper looks into the issues of copyright infringement and circumvention of technology with reference to Digital Millennium Copyright Act of 1998. The author of this paper has carefully studied the law in question and has focused on various issues connected with this legislation. DMCA is a highly controversial law that has been staunchly opposed and actively supported by different section of the public and it has managed to attract great deal of media attention because of various lawsuits that emerged in this connection. The paper looks into some important Court cases for impartial and objective study of the law.

DIGITAL MILLENNIUM COPYRIGHT ACT

INTRODUCTION TO DMCA

There has been a long-standing debate on the issue of freedom of speech in the United States. While the Constitution of the country explicitly grants American citizens the right to share information and to speak freely without fear of prosecution through the First Amendment, still both the government and public are confused about the extent to which this legislation is valid and applicable. This is because freedom of speech and the very closely connected issue of copyright infringement have now entered a new realm i.e. The digital world and simply speaking this one domain knew no laws or rules when it first invaded our lives. We need to understand that Internet has on the one hand made access to information easier but on the other hand the same medium has been accused of encouraging copyright violation which has now turned into one of the most heatedly debated issues. Businesses and the general public is not aware of the extent to which they can use copyrighted material available on the Internet while the online companies are puzzled as to what actually constitutes infringement and to what extent can they provide access to such materials to their valued users. With major problems surfacing in this connection, online and digital businesses have been forced to exercise more caution when dealing with copyrighted material.

Copyright laws have existed in the United States since the late 18th century but it was only in the beginning of the 20th century that Congress realized the importance of revising the laws by involving concerned people in the process. These laws provide protection to legal owners of intellectual property from possible exploitation of their hard work and talent. We need to understand that copyright is the only way through which owners can be protected from possible misuse of their intellectual property. But since the early days of the 20th century, the only people involved in the process are the legislators and those who are connected with the pro-law quarter. Thus this not-so-objective approach to revision of law has resulted in such amendments of copyright laws that have sparked firestorm of controversy in the country. It is important to understand that most laws whether they are controversial in nature or not are bound to divide the public opinion. This is because while many would side with government's interpretation of a problem, others would feel victimized by the legislation. In short, most laws in the United States spark a controversy but none of the recent laws have been as heatedly and widely debated as the Digital Millenium Copyright Act of 1998. This law came into operation under the Clinton administration after it was found that many companies and individuals were providing illegal access to copyrighted material both on the Internet and through various digital technologies.

With the rapid increase in creation of digital technologies, it is only obvious that government saw the need for an detailed copyright law that would protect legal authors and creators from possible exploitation and misuse of their legally owned intellectual assets. Digital Millenium Copyright Act of 1998, which is now commonly known as DMCA, was the result of government's effort in this connection. But needless to say that this law too has been both actively supported and staunchly opposed by the public and various industries. The driving force behind the enactment of this law was the World Intellectual Property Organization (WIPO) treaties, which were implemented with the primary objective of facilitating electronic commerce while at the same time providing adequate protection to copyright owners. In 1996, the international community adopted two important WIPO-sponsored treaties known as Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).

Many people are of the view that while DMCA does provide protection to owners of copyrighted material; it somehow also encroaches upon an individual's rights to access information, to conduct business and to speak without fear. The pro-law group however maintains that such legislation is necessary because without legal aid, the creators of original work would be deprived of their fair share of profits.

Jessica Lemits in her book 'Digital Copyright' traces of history of copyright laws in the United States and feels that DMCA is different from such others laws because of the fact that it primarily focuses on digital technologies and their possible misuse. She also feels that DMCA is a fairly lengthy, which often makes it incomprehensible to the general public. She writes in Chapter 2 of the book, "In 1998, copyright lobbyists persuaded Congress to enact a 26,000-word, 50-page coda to the copyright statute setting forth a new and convoluted series of rights and exceptions for digital copyright. Among other innovations, the new law for the first time purports to make it illegal for individual consumers to gain unauthorized access to protected works. There are a slew of exceptions, for computer security experts engaged in testing the security of a particular computer system, for example, or for law enforcement officers investigating crimes, but they are cast in prose so crabbed and so encumbered with conditions as to be of little use to anyone who doesn't have a copyright lawyer around to explain which hoops to jump through."

DMCA is certainly one of those much-needed laws that sparks firestorm of controversy simply because of their influence and significance. This is a very important point in this connection, which must be kept in sight if we want to study the issue impartially, and objectively. The legislation may not have any inherent flaws but the very reason it has attracted strong reaction from the public is because it is an extremely powerful law which can increase the rights of legal owners while at the same time decrease the scope of freedom of speech and access to information. It was once felt that the domain of Internet could easily stay away from legal tangles as censorship had not been able to invade the world of online businesses but this all changed as soon as copyright infringement cases began surfacing. Because digital technologies are rapidly progressing and new and more sophisticated devices and tools are emerging in the market everyday, DMCA has now become the uncrowned king of the copyright legislation in the United States.

We need to understand that technology is certainly more on the side of an average user who doesn't support the DMCA while it only provides limited benefits to the pro-law quarter. But since regular average users of technology far outnumber those who actively participated in the making of this law, it is only natural that we get to hear more anti-DMCA views than pro-ones. But keeping the advocates or proponents aside, the amount of attention this law has attracted is proof enough that DMCA is a powerful tool with which to define the extent of an individual's access to copyrighted material on the Internet and through digital media.

There are so many facets of this legislation that it is no easy to summarize the entire law in few lines but still we need to understand what are some of the highlights of this law. Therefore some important characteristics of this law are being summarized below which will help us understand who the law seeks to protect and how can we be accused of copyright infringement if found to be in illegal possession of copyrighted material.

In this connection it would also be important to mention the important cases of Felten and his colleagues because it shows how DMCA can often confuse people regarding their own right to share information and also that of Dmitri Sklyarov which was the first case in which criminal charges were levied completely under DMCA.

IMPORTANT PROVISIONS OF DMCA

Black Box provisions of DMCA

The Black Box provisions of DMCA aim at expanding the scope of previous copyright laws in the United States and thus seek to impose a ban on all those devices and methods which could help in circumvention of digital technology. The anti-circumvention provisions of the legislation seek to protect copyright owners from circumvention of technology. Since it is basically a copyright law therefore we must understand that circumvention of technology has been prohibited because it violates rights of the real owners or creators. For example if a person is found to be tampering with technology in such a way that the security of copyrighted material is exposed to possible risk of exploitation, then such a person could face criminal charges under DMCA. The case against Dmitri Sklyarov is a good example of this kind of infringement even though many feel that the Russian programmer's activities couldn't be categorized as copyright violation. We shall discuss this case later in the paper but for the sake of coherency, it was important to mention it here.

Title 17, Chapter 12, Sec. 1201. Of digital Millenium Copyright Act clearly states that, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

However some exemptions have been provided which give immunity to certain individuals if found to be tampering with technology. For example the law states that a librarian can alter the code of any copy protection technology if this is being done to determine if a particular work is worthy of being added to the database of the library. It also exempts technology experts from tampering with copy protection code only if they can prove that such a step was taken to facilitate inter-operability of different software. Researchers of encryption technology have also been given immunity under certain pre-determined conditions. For example they are not allowed to benefit in monetary terms from alteration of copy protection technology.

The law is too long and some feel too vague to be followed accurately or comprehended easily but nonetheless it has been termed by the proponents as an effective measure to stop violation of copyrighted material. The law also gives a detailed description of rights of an Internet service provider and the conditions under which he could be charged with circumvention of technology or violation of copyright. It is clearly stated that ISPs would not be charged with criminal violation of DMCA if some restricted materials get transferred to user's computer through automated mechanisms. But it is also mentioned that ISPs should remove such material from their caches as soon as it is notified of violation.

Safe Harbor Provisions

The safe harbor provisions of DMCA aim at providing protection to Internet service providers if they qualify for exemption. This means that no monetary relief can be sought against them if they are found to be eligible for safe harbor. The Internet service providers have been exempted from criminal charges but only under certain given conditions and it would be at the discretion of the Court to decide whether or not a particular ISP was abiding by the law if charges are brought against such a company. The law also makes it mandatory for the ISPs to delete accounts of those users who have been found to be accessing restricted material on the Internet through unfair means.

Casey Lide (1999) writes in her article for CAUSE/EFFECT journal that DMCA has not clearly defined an Internet service provider. She feels that due to a very broad definition that is given in the text of DMCA legislation, it is possible that college and universities providing free Internet access to their students would also fall under the category of an ISP. She writes, "The DMCA Title II definitions of service provider are broad enough to provide liability protection for entities that may not conventionally be considered ISPs (Internet Service Providers). In section 512(k)(1)(B), service provider is defined as "a provider of online services or network access, or the operator of facilities therefor." Most, if not all, higher education institutions probably fall within this definition. To be eligible for any of the limitations, service providers must also (1) adopt a policy of terminating the accounts of repeat infringes, and (2) accommodate and not interfere with "standard technical measures" (defined as standardized measures used by copyright owners to identify or protect copyrighted works)."

If what she is suggesting turns out to be more than a mere tentative assumption than colleges and universities would also be required to block the accounts of repeated violators because failure to adhere to the law might result in legal problems for the educational institutions. The legislation has carefully encompassed various parties and issues in the legislation but many feel that some details provided in this connection are not enough to make the legislation's message clear to the general public. Many are of the view that if this law is not clearly understood by the people, it would not be easy for them to abide by it.

Another important feature that has been incorporated in the law is with regard to devices being used for reproduction of copyrighted content and intellectual property. The law states that any machine being used for making copies of such material must be embedded with certain copy protection codes in order to stop illegal reproduction of pay-per-view material. Apart from pay-per-view, the VCRs manufacturers are required to stop illegal reproduction of programs for which subscription is mandatory. For example certain programs are available only on cable or satellites channels, therefore people can sometimes makes copies of such programs to distribute among their friends who do not enjoy the privilege of subscribed channels. But this type of reproduction also falls under the category of infringement and thus DMCA actively seeks to impose restrictions on it. Recording machine manufacturers are also prohibited from allowing their customers to make copies of pre-recorded content. This can be done if all VCRs are embedded with technology that would control violation of copyright.

LEGAL VIEWS IN FAVOR OF DMCA:

It is important to understand that while there may be several protests against enactment of such a law, still one section of the public feels that DMCA should not be repealed because it offers various benefits to actual authors or creators of copyrighted material. We need to know that while not everyone may stand to benefit from legislation, there are certain groups and industries, which would certainly find the law in their favor. This is because industries such as music recording companies had been witnessing a rapid decrease in their profits when MP3 format was discovered and numerous copies of the various types of music were made illegally available on the Internet. Under such conditions, it was extremely important to stop the influx of illegally produced music on the Internet because recording companies could go quickly out of business if digital copyright laws were not imposed to restrict such activities.

DMCA has thus been considered a very favorable move by the proponents and recording companies are not as worried about their businesses going bankrupt as they were before the Napster episode. Let us understand why supporters of this law view DMCA as an effective measure to control copyright violation in the digital world. This can be better understood if we study the issue from the viewpoint of the recording companies and take into account their fight against illegal use of digital music. The reason we are suggesting this is because digital music is the one thing everyone is familiar with and therefore this is one area through which people can better understand the significance of laws like DMCA.

The invasion of digital technology has revolutionized the way we listen to music. It is believed that this technology was first developed by a teenager with the sole purpose of making music accessible to people around the globe. Before the case of Napster surfaced, it was easier to download songs via the Internet and then enjoy all types of music either on your computer or audio players. With the progress of digitized music also came a revolutionary technology now common known as MP3. MP3 is actually an audio compression file format, which helps, in easy transmission and distribution of music. This technology shrinks the size of the file so that it occupies very little space on the disk. This is the most important factor behind its immense success. A musical file compressed by MP3 technology would occupy 1/12th of the disk space an uncompressed file would occupy.

But while it was a wonderful technology in itself, it was found that several people especially the owner of Napster Inc. was using it for illegal transfer of copyrighted music from one computer to another. Commenting on the popularity of digital technology, Bob Kohn, chairman of digital music download site eMusic.com said, "You want to be able to have some format that is open enough to work not only on your computer but on your PDA, cell phone, and your home stereo player. And you want to be able to go back to your account and download it again if your hard drive crashes."

This is when DMCA and such others laws surfaced to safeguard rights of music creators and other original authors, because whether we like it or not, the fact remains that free music available on the Internet was blatant violation of copyright.

Piracy is a copyright infringement, which has serious repercussions. Not only do the artists not get paid for the music they have composed because of the reproduction of the music, the music companies also end up losing as MP3s are downloaded directly from the Internet without going through the trouble of purchasing a CD. It significantly limits the musician's earnings, which is a result of two factors. When a person has accessed an MP3 file, he can reproduce several copies of the music without worrying about the copyright issue as no one can trace who initially did that. In other words, MP3 files are highly unsecured, there is no code, which would prevent the user from reproducing the file. Multiple copies can be made without putting in two much effort, even a novice knows how to make copies and distribute them to family and friends. Secondly, unlike the traditional analog method, the digital technology has made it easier to produce identical copies of the original. There is simply no difference in the sound quality and a copy and its original versions can not be distinguished from one another.

While we may refuse to pay attention to the pleas of the recording companies that piracy should stop, we cannot deny the fact that copyright infringement is a serious offence. An average person may argue that music companies have made such high revenues in the past that they would not be hurt by a small reduction in profits. But that is not true, recording companies are losing significantly from the "proliferation of unauthorized free copies" of music they have produced so diligently. Think objectively and one would notice that piracy is creating the very problem copyright laws sought to prevent; i.e. unauthorized production of music for which the music creator does not get fair return.

Now that we understand how digital music was creating problems for some industries and several original creators, it is even easier to understand why enactment of this law was important.

ETHICAL VIEWS SUPPORTING DMCA:

While from legal viewpoint DMCA is important because it aggressively discourages copyright infringement, there are some ethical reasons for supporting this law too. The significance of this law from ethical standpoint lies in the fact that with copyright infringement, some individuals and companies can reap monetary rewards while the actual copyright owners are deprived of their fair share of those profits. There are many who feel that piracy should not be turned into such a major issue but when we study the whole problem carefully and objectively, we notice that copyright infringement in all its forms can seriously hurt the original and real authors and creators of the content which some individuals would distribute on the Internet free of cost.

There are certain sections of public who feel that since piracy would continue to be a big issue especially with the advent of several new and more sophisticated technologies, it would be better not to impose laws like DMCA but instead focus on the development of better and more secure technologies. They are of the view that unless something concrete is done to bring alternative technologies in the market, copyright violation would continue to harass people in every field. For example the president of BMG Entertainment, Strauss Zelnick, is of the view that it would be best to make use of the opportunities that are available and which have been brought into the music industry by digital technology rather than cursing the problem of piracy. "Even piracy, that's hands-down a copyright infringement, can in certain instances speed up the process of legitimate market development, we're moving quickly, we need to move even more quickly."

And when you hear that coming from the CEO of a $4.6 billion giant music company, you would better pay attention. BMG Entertainment has promoted stars like Whitney Houston and Britney Spears and Zelnick's views on the subject of digital technology simply cannot be ignored. He feels that the business of digitized music is just going to double and triple over in the coming decade and there is simply no way of stopping the uploading of music files on the internet or its downloading by millions of music-lovers around the globe.

James V. DeLong (1998) in his impartial appraisal of the law writes, "The DMCA does solve a few problems, with the caveat that it is not at all certain what booby traps are buried in all the legislative verbiage. It is clearly in the interest of free communications to exempt Internet providers from responsibility for copyright violations. It is clearly good to allow temporary copies of programs during repair. It is clearly good, though not all would agree, to foster technological protection of intellectual property. But outlawing devices, as opposed to outlawing the act of pirating, raises tricky questions."

Digital music is only one of the few areas in which original owners of the copyrighted content can invoke the DMCA and thus safeguard their rights in the awe-inspiring and intimidating world of digital technologies.

ELCOMSOFT AND DMITRI SKLYAROV

The two cases discussed above show how DMCA could be used when it is found that copyright material is being illegally accessed. However the most important case which attracted mass media attention was that of ElcomSoft and Russian programmer Dmitri Sklyarov because the defendant in this case was not an American citizen and thus various issues surfaced along with public condemnation.

Dmitri Sklyarov was working for Elcomsoft Inc. And had been involved in software development for several years. He is a Russian citizen who had come to the United States only to participate in the DEF CON conference in Las Vegas. The conference was held for programmers of the world to gather and discuss latest inventions. It was there that Dmitri disclosed the weaknesses he had found with Adobe eBook software but he was later charged and arrested for circumvention of technology under U.S.'s DMCA law. The software that Dmitri had developed could change the eBook's format to Adobe's portable document format and was aptly named 'Advanced eBook Processor'. The change of format could remove certain restrictions that are usually imposed by eBook publishers in order to reduce the risk of illegal reproduction of their work. PDF format allows printing of contents, one facility which eBook doesn't provide. Adobe felt that this kind of information should not have been made public because it could the hurt the rights of the publishers.

Dmitri's arrest was widely condemned both in the United States and in his home country and people are now forcing Congress to determine the extent to which law enforcement agencies can be allowed to go for protection of intellectual property.

Chris Taylor (2001) writes, "The reason for his arrest, say federal investigators, was in the suitcase he was carrying. Not bombs or secret government documents, but software to make other kinds of documents -- "electronic books -- less than secret. Working for Moscow-based ElcomSoft while finishing his Ph.D., Sklyarov had used his head and hands to write code that cracks the security on an e-book reader sold by software giant Adobe. What Sklyarov did is perfectly legal in the rest of the world, and it was legal here until last year. "I was in the wrong place at the wrong time," Sklyarov told TIME in his first interview since being released on bail."

Dmitri was however released on bail and sent back to Russia in December 2001. But this case has aroused intense public sentiment regarding the extent to which DMCA can be used for providing legal cover to intellectual property. The anti-legislation quarter feels that such cases highlight blatant contradictions that exist in United States Constitutional laws and its other legal provisions. For example while the country declares itself to be the biggest champion of liberty, researchers and scientists in other countries feel that they cannot participate in research that involve U.S. products for fear of prosecution under DMCA.

Dutch cryptographer and well-known security analyst Neil Ferguson had earlier discovered a major security flaw in Intel video encryption system known as High Bandwidth Digital Content Protection. But he refused to publish his results and removed all data in this connection from his web site. Stating his reason for his refusal to publish the results, Ferguson says, "I have been advised by a U.S. lawyer who works in this field that if I publish my paper, I might very well be prosecuted and/or sued under U.S. law" (3).

SOCIAL AND ECONOMIC IMPLICATIONS

Now that we have studied several cases and views in connection with DMCA, we are certain that this law is currently the most controversial law in the United States and it would take some more time to find out just how effective it really is. Many people feel that with such laws, the country would suffer economically as many digital technology companies would go out of business but pro-legislation quarter has dismissed these fears. They feel that though it is true that with several lawsuits faced by the digital music companies like Napster, and other legal issues springing up, one is forced to wonder if the digital music companies will survive but there is a bright possibility that alternative technologies would soon be developed. The issues concerning the piracy and the rights of the artists are serious enough to result in a ban on the digital music altogether. But so far there is hardly a chance that digital music companies will go out of business because they are still optimistic that the issue of piracy can be peacefully resolved without causing any serious damage to the digital music industry. Several small and large companies in the field are developing new innovative techniques in this area including "online radio stations like those at Live365.com, or small independent MP3 download sites like Epitonic, or groovy technologies and add-on applications like Kick.com." (Janelle Brown, 1999)

Janelle Brown in her article "The music revolution will not be digitized" (1999) had this to say bout the companies engaged in distribution of digital music, "The digital music start-ups were hardly saints or true freedom fighters by any measure -- many were plagued by greed and blithe disregard for the rights of artists. But they were all focused almost entirely on customer-friendly innovation -- personalization, portability, interactivity, access to hard-to-find tracks, exposure to new music. Wooing customers was a requirement for the start-ups."

DMCA does not only affect the economy but experts maintain that this legislation will have far-reaching social implications too. In the long run, the law will change the meaning and significance of First Amendment because its provisions are no longer as influential and valid as they were before the inception of DMCA.

Scientific researchers are also confused about the extent to which they can tamper with copy protection technology because they feel that in the United States, interpretation of laws has always been a major problem. Thus it is clear that whether the law is good or not can be determined only when the Court or Congress offers a clear and very detailed interpretation of DMCA.