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This report has been updated: Latest version at Five Years Under the DMCA
This is version 2. The original version is still available.
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Unintended Consequences:
Four Years under the DMCA
Executive Summary
Since they were enacted in 1998, the “anti-circumvention”
provisions of the Digital Millennium Copyright Act (“DMCA”), codified in
section 1201 of the Copyright Act, have not been used as Congress envisioned.
Congress meant to stop copyright pirates from defeating anti-piracy protections
added to copyrighted works, and to ban “black box” devices intended for that
purpose.[1]
In practice, the anti-circumvention provisions have been used to
stifle a wide array of legitimate activities, rather than to stop copyright
piracy. As a result, the DMCA has developed into a serious threat to three
important public policy priorities:
Section 1201 Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is
being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward
Felten’s team of researchers, and prosecution of Russian programmer Dmitry
Sklyarov have chilled the legitimate activities of journalists, publishers,
scientists, students, programmers, and members of the public.
Section 1201 Jeopardizes Fair Use.
By banning all acts of circumvention, and all
technologies and tools that can be used for circumvention, section 1201 grants
to copyright owners the power to unilaterally eliminate the public’s fair use
rights. Already, the music industry has begun deploying “copy-protected CDs”
that promise to curtail consumers’ ability to make legitimate, personal copies
of music they have purchased.
Section 1201 Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners
have chosen to use the DMCA to hinder their legitimate competitors. For
example, Sony has invoked section 1201 to protect their monopoly on Playstation
video game consoles, as well as their “regionalization” system limiting users
in one country from playing games legitimately purchased in another.
This document collects a number of reported cases where the
anti-circumvention provisions of the DMCA have been invoked not against
pirates, but against consumers, scientists, and legitimate competitors. It
will be updated from time to time as additional cases come to light. The latest
version can always be obtained at www.eff.org.
DMCA Legislative Background
Congress enacted section 1201 in response to two pressures.
First, Congress was responding to the perceived need to implement obligations
imposed on the U.S. by the 1996 World Intellectual Property Organization
(WIPO) Copyright Treaty. Section 1201, however, went further than the WIPO
treaty required.[2] The details of section
1201, then, were a response not just to U.S. treaty obligations, but also to
the concerns of copyright owners that their works would be widely pirated in
the networked digital world.[3]
Section 1201 contains two distinct prohibitions: a ban on acts of circumvention, as well as a ban on the distribution
of tools and technologies used for circumvention.
The first prohibition, set
out in section 1201(a)(1), prohibits the act of circumventing a technological measure used by copyright owners to
control access to their works (“access controls”). So, for example, this
provision makes it unlawful to defeat the encryption system used on DVD movies.
This ban on acts of circumvention applies even where the purpose for decrypting
the movie would otherwise be legitimate. As a result, when Disney’s Tarzan DVD prevents you from fast-forwarding through the
commercials that preface the feature presentation, efforts to circumvent this
restriction would be unlawful.
Second, sections 1201(a)(2) and 1201(b) outlaw the manufacture,
sale, distribution or trafficking of tools and technologies that make circumvention possible. These provisions
ban not only technologies that defeat access controls, but also technologies that defeat use
restrictions imposed by copyright owners, such as copy controls. These provisions prevent technology vendors from
taking steps to defeat the “copy-protection” now appearing on many music CDs,
for example.
Section 1201 also includes a number of exceptions for certain
limited classes of activities, including security testing, reverse engineering
of software, encryption research, and law enforcement. These exceptions have
been extensively criticized as being too narrow to be of real use to the
constituencies who they were intended to assist.[4]
A violation of any of the “act” or “tools” prohibitions is
subject to significant civil and, in some circumstances, criminal penalties.
Free Expression and Scientific Research
Section 1201 is being used by a number of copyright owners to
stifle free speech and legitimate scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward
Felten’s team of researchers, and prosecution of the Russian programmer Dmitry
Sklyarov have imposed a chill on a variety of legitimate activities.
For example, online service providers and bulletin board
operators have begun to censor discussions of copy-protection systems, programmers
have removed computer security programs from their websites, and students,
scientists and security experts have stopped publishing details of their
research on existing security protocols. Foreign scientists are also
increasingly uneasy about traveling to the United States out of fear of
possible DMCA liability, and certain technical conferences have begun to
relocate overseas.
These developments will ultimately result in weakened security
for all computer users (including, ironically, for copyright owners counting on
technical measures to protect their works), as security researchers shy away
from research that might run afoul of section 1201.[5]
Cyber-Security Czar Notes Chill on Research
Speaking at MIT in October 2002, White House Cyber Security Chief
Richard Clarke called for DMCA reform, noting his concern that the DMCA had
been used to chill legitimate computer security research. The Boston Globe quoted Clarke as saying, “I think a lot of people
didn't realize that it would have this potential chilling effect on
vulnerability research.”
Jonathan Band, “Congress Unknowingly Undermines Cyber-Security,” S.J. Mercury News,
Dec. 16, 2002.
Hiawatha Bray, “Cyber Chief Speaks on Data Network Security,” The Boston Globe,
October 17, 2002.
http://www.boston.com/globe/search/
Professor Felten’s Research Team Threatened
In September 2000, a multi-industry group known as the Secure
Digital Music Initiative (SDMI) issued a public challenge encouraging skilled
technologists to try to defeat certain watermarking technologies intended to
protect digital music. Princeton Professor Edward Felten and a team of
researchers at Princeton, Rice, and Xerox took up the challenge and succeeded
in removing the watermarks.
When the team tried to present their results at an academic
conference, however, SDMI representatives threatened the researchers with
liability under the DMCA. The threat letter was also delivered to the
researchers’ employers, as well as the conference organizers. After extensive
discussions with counsel, the researchers grudgingly withdrew their paper from
the conference. The threat was ultimately withdrawn and a portion of the
research published at a subsequent conference, but only after the researchers
filed a lawsuit in federal court.
After enduring this experience, at least one of the researchers
involved has decided to forgo further research efforts in this field.
Pamela Samuelson, “Anticircumvention Rules: Threat to Science,” 293 Science 2028,
Sept. 14, 2001.
Letter from Matthew Oppenheim, SDMI General Counsel, to Prof. Edward Felten,
April 9, 2001.
http://cryptome.org/sdmi-attack.htm
Hewlett Packard Threatens SNOsoft
Hewlett-Packard resorted to Section 1201 threats when researchers
published their discovery of a security flaw in HP’s Tru64 UNIX operating
system. The researchers, a loosely-organized collective known as Secure Network
Operations (“SNOsoft”), received the DMCA threat after releasing software in
July 2002 that demonstrated vulnerabilities that HP had been aware of for some
time, but had not bothered to fix.
After the DMCA threat received widespread press attention, HP
ultimately withdrew the threat. Security researchers received the message,
however, publish vulnerability research at your own risk.
Declan McCullagh, “Security Warning Draws DMCA Threat,” CNET
News, July 30, 2002.
Censorware Research Obstructed
Benjamin Edelman conducts research on “censorware” software
(i.e., programs that block websites that contain objectionable material),
working to document flaws in such software, including in the products of N2H2,
a leading censorware company. Edelman’s research led to his providing expert
testimony for the ACLU in a recent federal court case challenging the
constitutionality of the Children's Internet Protection Act (CIPA), which
mandates that public libraries use censorware products like those sold by N2H2.
In the course of his work for the ACLU, Edelman discovered that
the DMCA might interfere with his efforts to learn what websites are actually
blocked by N2H2 products. N2H2 claims that its encrypted list of blocked
websites is legally protected by the DMCA against attempts to read and analyze
it. Because he is not willing to risk civil and criminal penalties under
Section 1201, Edelman has been forced to go to federal court to clarify his
legal rights before he can undertake his legitimate research.
ACLU, “In Legal First, ACLU Sues Over New Copyright
Law” (case archive).
Dmitry Sklyarov Arrested
In July 2001, Russian programmer Dmitry Sklyarov was jailed for
several weeks and detained for five months in the United States after speaking
at the DEFCON conference in Las Vegas.
Prosecutors, prompted by software goliath Adobe Systems Inc.,
alleged that Sklyarov had worked on a software program known as the Advanced
e-Book Processor, which was distributed over the Internet by his Russian
employer, ElcomSoft Co. Ltd. The software allowed owners of Adobe electronic
books (“e-books”) to convert them from Adobe’s e-Book format into Adobe
Portable Document Format (“pdf”) files, thereby removing restrictions embedded
into the files by e-Book publishers.
Sklyarov was never accused of infringing any copyrighted e-Book,
nor of assisting anyone else to infringe copyrights. His alleged crime was
working on a software tool with many legitimate uses, simply because third
parties he has never met might use the tool to copy an e-Book without the
publisher’s permission.
The Department of Justice ultimately permitted Sklyarov to return
home, but elected to proceed against his employer, ElcomSoft, under the
criminal provisions of the DMCA. In December 2002, a jury acquitted Elcomsoft
of all charges, completing an 18-month ordeal for the wrongly-accused Russian
software company.
Lawrence Lessig, “Jail Time in the Digital Age,” N.Y. Times at A7, July 30, 2001.
Lisa Bowman, “Elcomsoft Verdict: Not Guilty,” CNET News, Dec.
17, 2002.
Scientists and Programmers Withhold Research
Following the legal threat against Professor Felten’s research
team and the arrest of Dmitry Sklyarov, a number of prominent computer security
experts have curtailed their legitimate research activities out of fear of
potential DMCA liability.
For example, prominent Dutch cryptographer and security systems
analyst Niels Ferguson discovered a major security flaw in an Intel video
encryption system known as High Bandwidth Digital Content Protection (HDCP). He
declined to publish his results on his website relating to flaws in HDCP, on
the grounds that he travels frequently to the U.S. and is fearful of
“prosecution and/or liability under the U.S. DMCA law.”
Niels Ferguson, “Censorship in Action: Why I Don’t Publish My
HDCP Results,” Aug. 15, 2001.
Niels Ferguson, Declaration in Felten & Ors v R.I.A.A.
case, Aug. 13, 2001.
http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_ferguson_decl.html
Lisa M. Bowman, “Researchers Weigh Publication, Prosecution,”
CNET News, Aug. 15, 2001.
Following the arrest of Dmitry Sklyarov, Fred Cohen, a professor
of digital forensics and respected security consultant, removed his “Forensix”
evidence-gathering software from his website, citing fear of potential DMCA
liability.
Another respected network security protection expert, Dug Song,
also removed content from his website for the same reason. Mr. Song is the
author of several security papers, including a paper describing a common
vulnerability in many firewalls.
Robert Lemos, “Security Workers: Copyright Law Stifles,” CNET
News, Sept. 6, 2001.
In mid-2001 an anonymous programmer discovered a vulnerability in
Microsoft’s proprietary e-Book digital rights management code, but refused to
publish the results, citing DMCA liability concerns.
Wade Roush, “Breaking Microsoft's e-Book Code,” Technology Review at 24, November 2001.
Foreign Scientists Avoid U.S.
Foreign scientists have expressed concerns about traveling to the
U.S. following the arrest of Russian programmer Dmitry Sklyarov. Some foreign
scientists have advocated boycotting conferences held in the U.S. and a number
of conference bodies have decided to move their conferences to non-U.S.
locations. Russia has issued a travel warning to Russian programmers traveling
to the U.S.
Highly respected British Linux programmer Alan Cox resigned from
the USENIX committee of the Advanced Computing Systems Association, the
committee that organizes many of the U.S. computing conferences, because of
his concerns about traveling to the U.S. Cox has urged USENIX to hold its
annual conference offshore. The International Information Hiding Workshop
Conference, the conference at which Professor Felten’s team intended to present
its original paper, has chosen to hold all of its future conferences outside of
the U.S. following the SDMI threat to Professor Felten and his team.
Will Knight, “Computer Scientists boycott US over digital
copyright law,” New Scientist,
July 23, 2001.
Alan Cox of Red Hat UK Ltd, declaration in Felten v. RIAA,
Aug. 13, 2001.
http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_cox_decl.html
Jennifer 8 Lee, “Travel Advisory for Russian Programmers,”
N.Y. Times at C4, Sept.10, 2001.
IEEE Wrestles with DMCA
The Institute of Electrical and Electronics Engineers (IEEE),
which publishes 30 per cent of all computer science journals worldwide,
recently was drawn into the controversy surrounding science and the DMCA.
Apparently concerned about possible liability under Section 1201, the IEEE in
November 2001 instituted a policy requiring all authors to indemnify IEEE for
any liabilities incurred should a submission result in legal action under the
DCMA.
After an outcry from IEEE members, the organization ultimately
revised its submission policies, removing mention of the DMCA. According to
Bill Hagen, manager of IEEE Intellectual Property Rights, “The Digital
Millennium Copyright Act has become a very sensitive subject among our authors.
It’s intended to protect digital content, but its application in some specific
cases appears to have alienated large segments of the research community.”
IEEE press release, “IEEE to Revise New Copyright Form to
Address Author Concerns,” April 22, 2002.
Will Knight, “Controversial Copyright Clause Abandoned,” New Scientist, April 15, 2002.
2600 Magazine Censored
The Universal City Studios v. Reimerdes case[6] illustrates the chilling effect that section
1201 has had on the freedom of the press.
In that case, eight major motion picture companies brought a DMCA
suit against 2600 magazine seeking to
block it from publishing the DeCSS software program, which defeats the
encryption used on DVD movies. 2600
had made the program available on its web site in the course of ongoing
coverage of the controversy surrounding the DMCA. The magazine was not involved
in the development of software, nor was it accused of having used the software
for any copyright infringement.
Notwithstanding the First Amendment’s guarantee of a free press,
the district court permanently barred 2600
from publishing, or even linking to, the DeCSS software code. In November
2001, the Second Circuit Court of Appeals upheld the lower court decision.
In essence, the movie studios effectively obtained a “stop the
presses” order banning the publication of truthful information by a news
publication concerning a matter of public concern, an unprecedented curtailment
of well-established First Amendment principles.
Carl S. Kaplan, “Questioning Continues in Copyright Suit,”
N.Y. Times, May 4, 2001.
Simson Garfinkel, “The Net Effect: The DVD Rebellion,” Technology Review at 25, July/Aug. 2001.
Xenia P. Kobylarz, “DVD Case Clash, Free Speech Advocates Say
Copyright Owners Want to Lock Up Ideas; Encryption Code is Key,”
S.F. Daily Journal, May 1, 2001.
CNET Reporter Feels Chill
Prominent CNET News reporter Declan McCullagh recently found four
publicly-available documents on the Transportation Security Administration
(TSA) website. The website announced that the documents contained information
about airport security procedures, the relationship between federal and local
police, and a “liability information sheet.” A note on the site stated that
this “information is restricted to airport management and local law
enforcement.” No password was necessary to download the documents, but they
were distributed in encrypted form and a password was required to open and read
them.
McCullagh obtained the passwords from an anonymous source, but
fear of DMCA liability stopped him from reading the documents, using a password
without authorization could violate Section 1201. This is particularly ironic,
as any foreign journalist beyond the reach of the DMCA would be free to use the
password.
“Journalists traditionally haven't worried about copyright law
all that much,” said McCullagh, “But nowadays intellectual property rights have
gone too far, and arguably interfere with the newsgathering process.”
Declan McCullagh, “Will This Land Me in Jail?”, CNET News, Dec. 23, 2002.
Microsoft Threatens Slashdot
In spring 2000, Microsoft invoked the DMCA against the Internet
publication forum Slashdot, demanding that forum moderators delete materials
relating to Microsoft’s proprietary implementation of an open security standard
known as Kerberos.
In the Slashdot forum, several individuals alleged that Microsoft
had changed the open, non-proprietary Kerberos specification in order to
prevent non-Microsoft servers from interacting with Windows 2000. Many
speculated that this move was intended to force users to purchase Microsoft
server software. Although Microsoft responded to this criticism by publishing
its Kerberos specification, it conditioned access to the specification on
agreement to a “click-wrap” license agreement that expressly forbade disclosure
of the specification without Microsoft’s prior consent.
Slashdot posters responded by republishing the Microsoft
specification. Microsoft then invoked the DMCA, demanding that Slashdot remove
the republished specifications.
In the words of Georgetown law professor Julie Cohen, “If
Microsoft's interpretation of the DMCA's ban on circumvention technologies is
right, then it doesn't seem to matter much whether posting unauthorized copies
of the Microsoft Kerberos specification would be a fair use. A publisher can
prohibit fair-use commentary simply by implementing access and disclosure
restrictions that bind the entire public. Anyone who discloses the information,
or even tells others how to get it, is a felon.”
Julie Cohen, “Call it the Digital Millennium Censorship Act &emdash; Unfair Use,” The
New Republic, May 23, 2000.
AVSforum.com Censors TiVo Discussion
The specter of DMCA litigation has chilled speech on smaller web
bulletin boards, as well. In June 2001, for example, the administrator of
AVSforum.com, a popular forum where TiVo digital video recorder owners discuss
TiVo features, censored all discussion about a software program that allegedly
permitted TiVo users to move video from their TiVos to their personal
computers. In the words of the forum administrator, “My fear with this is more
or less I have no clue what is a protected system on the TiVo box under
copyright (or what-have-you) and what is not. Thus my fear for the site.”
Lisa M. Bowman, “TiVo Forum Hushes Hacking Discussion,”
CNET News, June 11, 2001.
Fair Use Under Siege
“Fair use” is a crucial element in American copyright law, the
principle that the public is entitled, without having to ask permission, to use
copyrighted works so long as these uses do not unduly interfere with the
copyright owner’s market for a work. Fair uses include personal, noncommercial
uses, such as using a VCR to record a television program for later viewing.
Fair use also includes activities undertaken for purposes such as criticism,
comment, news reporting, teaching, scholarship or research.
While stopping copyright infringement is an important policy
objective, Section 1201 throws out the baby of fair use with the bathwater of
digital piracy. By employing technical protection measures to control access to
and use of copyrighted works, and using section 1201 litigation against anyone
who tampers with those measures, copyright owners can unilaterally eliminate
fair use, re-writing the copyright bargain developed by Congress and the courts
over more than a century.
Copy-protected CDs
The introduction of “copy-protected” CDs into the marketplace
illustrates the collision between fair use and the DMCA. Record labels are aggressively
incorporating “copy-protection” on new music releases. Over 10 million
copy-protected discs are already in circulation, according to Midbar Technology
Ltd, one of the vendors of copy-protection technology. Sony claims that it has
released over 11 million copy-protected discs worldwide.
Whatever the impact that these copy protection technologies may
have on online infringement, they are certain to interfere with the fair use
expectations of consumers. For example, copy-protected discs will disappoint
the hundreds of thousands of consumers who have purchased MP3 players, despite
the fact that making an MP3 copy of a CD for personal use is a fair use. Making
“mix CDs” or copies of CDs for the office or car are other examples of fair
uses that are potentially impaired by copy-protection technologies.
Companies that distribute tools to “repair” these dysfunctional
CDs, restoring to consumers their fair use privileges, run the risk of lawsuits
under section 1201’s ban on circumvention tools and technologies.
Rep. Rick Boucher, “Time to Rewrite the DMCA,” CNET News, Jan. 29, 2002.
Dan Gillmor, “Entertainment Industry's Copyright Fight Puts
Consumers in Cross Hairs,” San Jose
Mercury News, Feb. 12, 2002.
Gwendolyn Mariano, “Copy-Protected CDs Slide Into Stores,”
CNET News, Feb. 12, 2002.
Fair Use Tools Banned
We are entering an era where books, music and movies will
increasingly be “copy-protected” and otherwise restricted by technological
means. Whether scholars, researchers, commentators and the public will continue
to be able to make legitimate fair uses of these works will depend upon the
availability of tools to bypass these digital locks.
The DMCA’s anti-circumvention provisions, however, prohibit the
creation or distribution of these tools, even if they are crucial to fair use.
So, as copyright owners use technology to press into the 21st century, the
public will see more and more fair uses whittled away by digital locks
allegedly intended to “prevent piracy.” Perhaps more importantly, no future
fair uses will be developed, after all,
before the VCR, who could have imagined that fair use “time-shifting” of
television would become common-place for the average consumer?
Copyright owners argue that these tools, in the hands of
copyright infringers, can result in “Internet piracy.” But the traditional
answer for piracy under copyright law has been to seek out and prosecute the
infringers, not to ban the tools that enable fair use. After all, photocopiers,
VCRs, and CD-R burners can also be misused, but no one would suggest that the
public give them up simply because they might be used by others to break the
law.
DeCSS and DVD Copy Plus
Fair use tools have already been yanked off the market. In the Universal
v. Reimerdes case, discussed above, the
court held that Section 1201 bans DeCSS software. This software decrypts DVD
movies, making it possible to copy them to a PC. In another case, a company has
filed a declaratory judgment action in San Francisco after being threatened
with DMCA liability by the MPAA for distributing DVD Copy Plus, which enables
DVD owners to make copies of DVD content. The major motion picture studios have
since counter-sued, alleging that DVD copying tools violate the DMCA.
There are lots of legitimate reasons to copy DVDs. Once the video
is on the PC, for example, lots of fair uses become possible, film scholars can
digitally analyze the film, travelers can load the movie into their laptops,
and parents can fast-forward through the “unskippable” commercials that preface
certain films. Without the tools necessary to copy DVDs, however, these fair
uses become impossible.
Matthew Mirapaul, “They’ll Always Have Paris (and the Web),”
N.Y. Times at E2, March 16, 2002.
Lisa Bowman,
“Hollywood Targets DVD- Copying Upstart,” CNET News, Dec. 20, 2002.
Advanced e-Book Processor and e-Books
The future of fair use for books was at issue in the criminal
prosecution of Dmitry Sklyarov and ElcomSoft. As discussed above, ElcomSoft
produced and distributed a tool called the Advanced e-Book Processor, which
translates e-books from Adobe’s e‑Book format to Adobe’s Portable
Document Format (“PDF”). This translation process removes the various
restrictions (against copying, printing, text-to-speech processing, etc.) that
publishers can impose on e‑Books. The program is designed to work only
with e‑Books that have been lawfully purchased from sales outlets.
The Advanced e-Book Processor allowed those who have legitimately
purchased e‑Books to make fair uses of their e‑Books, which would
otherwise not be possible with the current Adobe e‑Book format. For
instance, the program allows people to engage in the following activities, all
of which are fair uses:
-
read it on a laptop or computer other than the one on which the e‑Book
was first downloaded;
-
continue to access a work in the future, if the particular
technological device for which the e‑Book was purchased becomes obsolete;
-
print an e‑Book on paper;
-
read an e‑Book on an alternative operating system such as
Linux (Adobe's format works only on Macs and Windows PCs);
-
have a computer read an e‑Book out loud using
text-to-speech software, which is particularly important for visually-impaired
individuals.
EFF, Frequently Asked Questions re U.S. v. Sklyarov.
Time-shifting and Streaming Media
As more consumers receive audio and video content from
“streaming” Internet media sources, they will demand tools to preserve their
settled fair use expectations, including the ability to “time-shift” programming
for later listening or viewing. As a result of the DMCA, however, the digital
equivalents of VCRs and cassette decks for streaming media may never arrive.
Start-up software company Streambox developed exactly such a
product, known simply as the Streambox VCR, designed to time-shift streaming
media. When competitor RealNetworks discovered that Streambox had developed a
competing streaming media player, it invoked the DMCA and obtained an
injunction against the Streambox VCR product.
RealNetworks, Inc. v. Streambox,
Inc., 2000 WL 127311 (W.D. Wash. Jan. 18, 2000).
The DMCA has also been invoked to threaten the developer of an
open source, noncommercial software application known as Streamripper that
records MP3 audio streams for later listening.
Cease and
desist letter from Kenneth Plevan on behalf of Live365.com to John Clegg,
developer of Streamripper, April 26, 2001.
http://streamripper.sourceforge.net/dc.php
embed and Fonts
In January 2002, typeface vendor Agfa Monotype Corporation
threatened a college student with DMCA liability for creating “embed,” a free,
open source, noncommercial software program designed to manipulate TrueType
fonts.
According to the student: “I wrote embed in 1997, after
discovering that all of my fonts disallowed embedding in documents. Since my
fonts are free, this was silly, but I didn't want to take the time to change
the flag, and then reset all of the extended font properties with a separate
program. What a bore! Instead, I wrote this program to convert all of my fonts
at once. The program is very simple; it just requires setting a few bits to
zero. Indeed, I noticed that other fonts that were licensed for unlimited
distribution also disallowed embedding. So, I put this program on the web in
hopes that it would help other font developers as well.”
Agfa Monotype nevertheless threatened the student author with
DMCA liability for distributing the program. According to Agfa, the fact that
embed can be used to allow distribution of protected fonts makes it contraband
under Section 1201, notwithstanding the fact that the tool has many legitimate
uses in the hands of hobbyist font developers.
Tom Murphy, “embed: DMCA Threats.”
A threat to innovation and competition
The DMCA is being used to hinder the efforts of legitimate
competitors to create interoperable products.
For example, Vivendi-Universal's Blizzard video game division
invoked the DMCA in an effort to intimidate the developers of a software
product derived from legitimate reverse engineering. Sony has used the DMCA to
threaten hobbyists who created competing software for Sony’s Aibo robot dog, as
well as to sue makers of software that permits the playing of Playstation games
on PCs. In each of these cases, the DMCA was used to deter a marketplace
competitor, rather than to battle piracy.
Lexmark Sues Over Toner Cartridges
Lexmark, the second-largest printer vendor in the U.S., has long
tried to eliminate aftermarket laser printer toner vendors that offer
consumers toner cartridges at prices below Lexmark’s. In December 2002,
Lexmark invoked the DMCA in its effort to eliminate competition in this
market, suing Static Control Components for “circumvention” of certain
“authentication routines” between Lexmark toner cartridges and printers.
Lexmark added these authentication routines explicitly to
hinder aftermarket toner vendors. Static Control reverse-engineered
these measures and now sells “Smartek” chips that enable aftermarket
cartridges to work in Lexmark printers. Lexmark claims that these chips
are “circumvention devices” banned by the DMCA. Whatever the merits of
Lexmark’s position, it is fair to say that eliminating the laser printer
toner aftermarket was not what Congress had in mind when enacting the
DMCA.
Declan McCullagh, “Lexmark Invokes DMCA in Toner Suit,”
CNET NEWS, Jan. 8, 2003.
Sony Sues Connectix and Bleem
Since the DMCA’s enactment in 1998, Sony has used DMCA litigation
to pressure competitors who created software that would allow PC owners to play
games intended for the Sony Playstation video game console. In 1999, Sony sued
Connectix Corporation, the manufacturer of the Virtual Game Station, an
emulator program which allowed Sony Playstation games to be played on Apple
Macintosh computers. Sony also sued Bleem, the leading vendor of Playstation
emulator software for Windows PCs.
In both cases, the Sony competitors had created their products by
engaging in legitimate reverse engineering, which has been recognized as noninfringing
fair use in a series of Ninth Circuit cases. Connectix, in fact, ultimately won
a Ninth Circuit ruling that its reverse engineering was indeed fair use.[7]
Both Connectix and Bleem, however, were unable to bear the high costs of
litigation against Sony and ultimately were forced to pull their products off
the market. Whatever the merits of Sony’s position may have been under
copyright, trademark, patent, or other legal theories, the competitive efforts
of Connectix and Bleem certainly were at a far remove from the “black box”
piracy devices that Congress meant to target with section 1201.
Pamela Samuelson, “Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised,” 14 Berkeley Technology L.J. 519, 556 (1999)
(discussing the Connectix case).
http://www.sims.berkeley.edu/~pam/papers.html
Testimony of Jonathan Hangartner on behalf of Bleem, Library
of Congress, Hearing on DMCA, Stanford University, May 19, 2000, pp. 221-28.
http://www.loc.gov/copyright/1201/hearings/1201-519.pdf
Sony Threatens Aibo Hobbyist
Sony has also invoked the DMCA against a hobbyist who developed
custom programs for Sony’s Aibo robotic “pet” dog. The hobbyist cracked the
encryption surrounding the source code that manipulates the Aibo to reverse
engineer programs that allow owners to customize voice recognition by their
Aibos. The hobbyist revealed neither the decrypted source code nor the code he
used to defeat the encryption, freely distributed his custom programs, and made
no profit. Nevertheless, Sony claimed that the act of circumventing the
encryption surrounding the source code violated the DMCA and demanded that the
hobbyist remove his programs from his website.
Responding to public outcry, Sony ultimately permitted the
hobbyist to repost some of his programs (on the understanding that Sony will
have the rights of commercial development in the programs). The incident,
however, illustrated Sony’s willingness to invoke the DMCA in situations with
no relationship to “piracy.”
David Labrador, "Teaching Robot Dogs New Tricks," Scientific American, Feb. 12, 2002.
Blizzard Sues bnetd.org
Section 1201 has been invoked in a federal lawsuit by
Vivendi-Universal's Blizzard Entertainment video game division against a group
of volunteer game enthusiasts who used reverse engineering to create free and
open source software to allow owners of Blizzard games to play the games over
the Internet. The software, a server called "bnetd," provides an
alternative to Blizzard's own Battle.net servers.
Both Battle.net servers and bnetd servers are available for free
and both allow owners of Blizzard games to play with each other across the
Internet. The group of volunteers decided to create bnetd to overcome
difficulties that they had experienced in attempting to use Battle.net. The
bnetd software is freely distributed, open source, and non-commercial.
Blizzard filed suit in St. Louis to bar distribution of bnetd,
alleging that the software is a circumvention device that violates the DMCA.
According to Blizzard, the bnetd software has been used by some to permit
networked play of pirated Blizzard games. Whether or not that is true, the
developers are not using the software for that purpose, nor was the software
designed for that purpose. The software has numerous legitimate uses for owners
of Blizzard games. Whatever else may be said about the bnetd software, it is
plainly not a “black box” piracy device. (EFF is representing the bnetd
developers.)
Howard Wen, “Battle.net Goes To War,” Salon, April 18, 2002.
EFF case archive.
Sony Attacks Playstation “Mod Chips”
Apart from using the DMCA against vendors of personal computer
emulators of Sony’s Playstation, Sony has sued a number of manufacturers of
so-called “mod chips” for alleged circumvention under the DMCA. In doing so,
Sony has been able to enforce a system of geographical regional restrictions
that raises significant anticompetitive issues.
So-called “mod chips” are after-market accessories that modify
Playstation consoles to permit games legitimately purchased in one part of the
world to be played on a games console from another geographical region. Sony
has sued mod chip manufacturers in the U.S., the U.K., and Australia. In the U.S., Sony sued Gamemasters, Inc.,
distributor of the Game Enhancer peripheral device, which allowed U.S.
Playstation users to play games purchased in Japan and other countries.
Although there was no infringement of Sony’s copyright, the court granted an injunction
under the DMCA’s anti-circumvention provisions, effectively banning the use of
a technology that would permit users to use legitimately-purchased
non-infringing games from other regions.
Recognizing the anti-competitive potential of the region playback
control system, an Australian court recently ruled against Sony in a case that
was brought against an Australian mod chip manufacturer under the Australian
equivalent of the DMCA’s anti-circumvention provisions.
Sony has argued that mod chips can also be used to enable the use
of unauthorized copies of Playstation games. But most Playstation mod chips are
not “black box” devices suitable only for piracy. The potential illegitimate
uses must be weighed against legitimate uses, such as defeating Sony’s region
coding system to play games purchased in other countries.
“Sony Playstation ruling sets far-reaching precedent,” New Scientist, Feb. 22, 2002
Sony Computer Entertainment America Inc. v. Gamemasters, 87 F.Supp.2d 976 (N.D. Cal. 1999).
David Becker, “Sony Loses Australian Copyright Case,” CNET
News, July 26, 2002.
Apple Harasses Inventive Retailer
When Other World Computing (OWC), a small retailer specializing
in Apple Macintosh computers, developed a software patch that allowed all Mac
owners to use Apple’s iDVD software, they thought they were doing Apple’s fans
a favor. For their trouble, they got a DMCA threat from Apple.
Apple’s iDVD authoring software was designed to work on newer
Macs that shipped with internal DVD
recorders manufactured by Apple. OWC discovered that a minor software
modifiation would allow iDVD to work with external DVD recorders, giving owners of older Macs an upgrade
path. Apple claimed that this constituted a violation of the DMCA and requested
that OWC stop this practice immediately. OWC obliged.
Rather than prevent copyright infringement, the DMCA empowered
Apple to force consumers to buy new Mac computers instead of simply upgrading
their older machines with an external DVD recorder.
Declan McCullagh “Apple: Burn DVDs, and We'll Burn You,” CNET
News, Aug. 28, 2002.
Conclusion
Four years of experience with the “anti-circumvention” provisions
of the DMCA demonstrate that the statute reaches too far, chilling a wide
variety of legitimate activities in ways Congress did not intend. As an
increasing number of copyright works are wrapped in technological protection
measures, it is likely that the DMCA’s anti-circumvention provisions will be
applied in further unforeseen contexts, hindering the legitimate activities of
innovators, researchers, the press, and the public at large.
EFF would like to thank the following individuals who have
helped to create and update this publication:
the Samuelson Law, Technology & Public Policy Clinic, Deirdre Mulligan,
Nicky Ozer, and Nicolai Nielsen.
[1] For examples of Congress’ stated
purpose in enacting the DMCA’s anti-circumvention provisions, see 144 Cong. Rec. H7093, H7094-5 (Aug. 4, 1998); Senate
Judiciary Comm., S. Rep. 105-190 (1998) at 29; Judiciary Comm., H. Rep. 105-551
Pt 1 (1998) at 18; House Commerce Comm., H. Rep. 105-551 Pt 2 (1998) at 38.
[2] See WIPO Copyright Treaties Implementation Act and Online
Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 before
the House Subcomm. on Courts and Intellectual Prop., 105th Cong., 1st sess. (Sept. 16, 1997) at 62 (testimony of Asst.
Sec. of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman
admitting that section 1201 went beyond the requirements of the WIPO Copyright
Treaty).
[3] For a full description of the events
leading up to the enactment of the DMCA, see Jessica Litman, Digital
Copyright 89-150 (2000).
[4] See Pamela Samuelson, Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley
Technology L.J. 519, 537-57 (1999) (http://www.sims.berkeley.edu/~pam/papers.html)
[5] See Professor Ross Anderson, Cambridge University, Declaration in Felten
v. RIAA (Oct. 22, 2001), describing ways in
which the DCMA is suppressing research into security weaknesses in SDMI
watermarking technology: (http://www.eff.org/IP/DMCA/Felten_v_RIAA/20011022_anderson_decl.pdf).
[6] 111 F. Supp. 2d. 294 (S.D.N.Y. 2000), aff’d 273 F.3d 429 (2d Cir. 2001).
[7] Sony Computer Entertainment, Inc. v. Connectix Corporation, 203 F.3d 596 (9th Cir. 2000).
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