The recording and movie industry saw the threat of technology like Napster when Shawn Fanning, the creator of the peer-to-peer file swapping service, was just a tot. Indeed, the road to the controversial Digital Millennium Copyright Act (DMCA) probably began in 1975, when Sony Corp. introduced the Betamax VCR.
That was the start of a long series of court battles and legislative fights over electronic duplication of copyrighted material. But it wasn't until PCs were in wide use that Congress acted in a broad way to extend copyright protections to the digital domain. President Clinton signed the DMCA in October 1998.
Four years later, copyright holders are using the DMCA to successfully fight Napster-like services and protect their anticopying technology. But the law has many critics and challengers, who say it impinges on the right of consumers to copy content and creates a predicament for scientists conducting certain kinds of security research.
For example, if someone develops the means to crack a copyright-protected CD and makes the technology for doing so available to others, the DMCA allows civil and legal sanctions. That makes sense.
But it caused a problem for Edward Felten, a leading security researcher at Princeton University, and his team when they circumvented the proposed Secure Digital Music Initiative (SDMI) watermarking technology standard for music. SDMI's creators had invited researchers to crack the technology, but when Felten sought to publish the results, he was threatened with a lawsuit from SDMI's recording industry backers.
Felten fought back. The Electronic Freedom Foundation filed a lawsuit challenging the prohibitions. But it never evolved into a test case because the research was conducted before the DMCA's prohibition on acts of circumvention took effect in 2000. The suit was dismissed.
Felten says researchers are worried that their work will lead to lawsuits. "There is a very strong sentiment in the research community that doing research in [content protection] is dangerous," he says.
The DMCA has survived one important test. The Motion Picture Association of America (MPAA) sued Eric Corely, the publisher of 2600: The Hacker Quarterly when the magazine sought to post De-Content Scrambling System code that circumvented DVD anticopying technology, arguing that First Amendment protection applied.
New York District Judge Lewis Kaplan found for the MPAA but saw legitimate arguments on both sides. "In our society, however, clashes of competing interests like this are resolved by Congress," wrote Kaplan.
For now, at least, the courts have resolved this clash in the DMCA's and plaintiffs' favor.
For the motion picture industry and content providers in general, Kaplan's decision was critical.
If the publisher had prevailed, "the protection that Congress afforded content owners under the DMCA would have been eliminated," says Charles Sims, the New York attorney representing the MPAA.
"By defeating that challenge and establishing that the anticircumvention provisions are constitutional, we preserved the security for copyrighted works that the DMCA afforded," he says.
But the Corely case is hardly the end of legal challenges to this complex law or new efforts in Congress to revise it. There will be battles for years to come.
The DMCA also raises issues that can affect the sharing and copying of data in the workplace.
Suppose, for instance, that an employee copies several paragraphs of an article off the Web and disseminates it. The DMCA requires that those excerpts include copyright management information such as title, author, and terms and conditions of use, says Michael Overly, an attorney at Foley & Lardner in Los Angeles. He advises companies to review their content-sharing practices in light of the DMCA.
Another problem raised by the DMCA is fair use of electronic data. If a copyright includes an anticircumvention clause that prevents copying, then anyone who breaks that provision could be liable under the DMCA. If the same material appears in paper, the reader is free to copy it for personal use. The law creates different rules for the same material, depending on the medium, says Overly.
But for all the controversy surrounding it, the law will be hard to alter. "There is enough opposition to any change" to prevent it from happening, says Brian Mudge, a Washington-based attorney at Kenyon & Kenyon.
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