Articles

Copyright in the Digital Era

In opinion on October 12, 2005 by karan

The Digital Millennium Copyright Act, referred to as the DMCA, is a law of the USA regarding copyright in the new era of digital content. The act was designed to implement the 1996 Copyright Treaty from the World Intellectual Property Organisation (WIPO). The intent of the WIPO Copyright Treaty is to extend the Berne Convention of 1886, the first international recognition of copyrights. The WIPO Treaty enables protection for computer programs as literary works, recognising their inherent intellectual property value, among other similar provisions that are relevant to the digital content era. [1]

Most controversially, however, the Treaty and thus the DMCA contain provisions prohibiting the circumvention of security measures designed to protect such content. This has been the subject of a number of litigation cases in America, and indeed, the implications of the DMCA are being felt outside of the USA, rendering it a very controversial law, both internationally and domestically.

Copyright

What indeed is ‘Copyright’? Copyright can be defined as “law granting authors the exclusive privilege to reproduce, distribute, perform, or display their creative works.? [2] The intent of copyright is that it encourages authors to produce new work, as they are granted the rights to its reproduction and thus a potential income. The notion of copyright is an old one, but before the invention of the printing press, there was little need for a copyright as publishing books was a difficult process, and literacy was low. Copyright in the sense that it is used today was first enshrined in law by the Statute of Anne, enacted by the British parliament in 1710 [1]. It granted exclusive rights to authors, allowing them to control the publication of their text, for 28 years, after which the text would become part of the public domain. Importantly, the Statute also contained provisions for those who purchased the copies to use them as they wished. While clearly this provided the potential for abuse, in the context of the time this was effectively limited and recognised that the purchaser had paid for the work.

This aspect of the first recognised copyright laws can be considered to have foreshadowed what is commonly referred to in the USA as ‘fair use’ – the use of copyrighted material for the purposes of criticism, reviewing, teaching, and other such activities which can be demonstrated to not harm the copyright owner’s potential revenue [3]. The DMCA, however, has caused a number of controversies regarding fair use, as copyright holders become increasingly less inclined to viewing such activities as ‘fair use’.

The notion of copyright was conceived initially as a way of protecting both the author and their nominated publisher from competitors. Before the digital age, publishing was a business that required large investment and expensive production methods. As the source materials became increasingly digitised however, the cost of reproduction was reduced. Digital also enables exact copies to be made from a single source. These two factors meant that it was increasingly easy for a small operation to produce copies of original materials which were for all purposes exactly the same.

This applied especially in the case of music and movies, with the widespread use of CDs and DVDs through the mid 1990s combined with cheap affordable copying hardware allowing widespread copying. Computer programs distributed on CDs invariably suffered a similar fate. The popularisation of the internet also enabled such illegitimate digital copying to occur almost anywhere, and the distribution of the copy relatively quick and easy.

The DMCA

In order to combat the growing level of copying, the producers of CDs and especially DVDs produced encryption methods to protect the content. There is however an inherent weakness to encryption methods intended for content that needs to be decoded by many people – legitimate consumers of the content. The encryption method must be strong enough to deter at the very least the average consumer from making copies, but weak enough that it does not inconvenience the majority of users who only intend to use the content legally. Also, the decryption method must be distributed for use by the consumers.

It is perhaps worth noting that some considered this encryption to be a violation of their legal right to fair use. Decrypting and saving a section of the content to use for the purposes of a review independent of the original content, as United States law explicitly allows, was not easily possible. The concerns of various copyright holders remained, however, and through WIPO the Copyright Treaty 1996 was established. The treaty states in Article 11 that the circumvention of such encryption methods should be declared illegal [4].

In the USA, the DMCA is the act of law that implements the policy. The DMCA was passed in 1998, consisting of 5 ‘titles’, or main clauses. Title I, WIPO Copyright and Performances and Phonograms Treaties Implementation Act, implements the treaty, recognising computer programs as equivalent to literary works, known as section 102, and the anticircumvention law, known as section 103 [5]. Title II, the Online Copyright Infringement Liability Limitation Act, grants protection to Internet Service Providers (ISPs) from copyright infringements committed by their customers. Title III, the Computer Maintenance Competition Assurance Act allows those performing maintenance on computers to copy protected material temporarily. Title IV, Miscellaneous Provisions, added various provisions relating to the implementation of the act and some explicit fair use provisions for distance education and libraries. Title V, the Vessel Hull Design Protection Act, relates to patent and copyright law regarding vessel hull designs.

Of these titles, clearly Title I has the greatest impact, carrying as it does the majority of the changes and additions to copyright law. Title II is also rather contentious, as it does not require notification and process of apparent infringements through the legal system.

Legal Issues

There have been a number of legal cases involving the DMCA since its inception. A number of them have been initiated by the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA). These two groups are the most vocal about illegal copying and distribution of material which their members hold copyright over. However, the DMCA has not been limited to action in the areas of music & movies only, as its provisions against anti-circumvention also have implications for other digital copyright holders.

One particularly famous case is that of the US vs. ElcomSoft & Sklyarov [6]. This case, initiated by Adobe, came about because Sklyarov had been arrested for allegedly producing software to remove encryption from Adobe eBooks. Sklyarov was arrested in July 2001 when he went to the USA to attend a conference, and although he was acquitted in December 2001, many questions were raised about the jurisdiction of American courts in enforcing the DMCA. Due to the complex and international nature of the internet, something which may be a crime in one particular country may not be in another, but the internet eliminates the distance.

The case also exposed the dichotomy of the DMCA’s anticircumvention measures and the older established fair use rights, as ElcomSoft’s program enabled fair use such as backup, ‘space-shifting’ to a secondary device [7], or obtain an excerpt for review or teaching, and yet the DMCA provisions disallow the circumvention of encryption measures for this fair use. In this case, it is clearly highlighted that the law did not cater for the established rights of the consumer.

Another case which illustrated several issues with the DMCA was the Felten vs. RIAA case [8]. Professor Felten and his academic team were invited to break the Secure Digital Music Initiative’s (SDMI) Digital Rights Management (DRM) encryption. Felten’s team was successful, but when they moved to publish their findings, SDMI and RIAA threatened legal action. In effect, Felten and his team had been invited publicly to break the encryption, and having done so they wished to publish their results for peer review. Both of these actions could be viewed as illegal under the DMCA, as it includes circumvention of the encryption methods and communication of the method of circumvention to others. Although the fact of circumvention was not an issue as SDMI had waived legal issues during the challenge, the communication of the method was received with a legal threat. Felten and the Electronic Frontier Foundation (EFF) moved to ensure that the case was represented as a constitutional challenge relating to the right to free speech, and were partially successful in that RIAA and SDMI chose to withdraw their threat of legal action. The case illustrated that part of the provisions of the DMCA relating to communication of circumvention methods to others could effectively be impinging on rights previously granted.

Other cases include action against a manufacturer of after-market printer cartridges, where the use of a program to circumvent restrictions on manufacturer-only cartridges, thereby allowing the use of non-manufacturer cartridges, was dismissed and turned into an anti-monopoly case [9]. A similar case is underway for game server software which allows users to use multiplayer games outside of the authorised servers, potentially allowing for illegally copied software to be used.

The Effects of the DMCA

The DMCA is only the USA’s implementation of the WIPO’s 1996 Copyright Treaty. Indeed, legislation from other countries has come into effect or is proposed to cover much the same ground. The European Union implemented it in the EU Copyright Directive, issued in 2001. The United Kingdom had made provisions in an amendment of their Copyright act in 1988 to similar effect as Section 103 (anti-circumvention) of the DMCA, although clearly it did not cause as much legal conflict, regardless of America’s predisposition to litigation. It is inevitable that all signatories to the WIPO treaty will enact legislation similar to the DMCA to some extent or another, but with the USA being a major producer of content affected by this, the DMCA will prove to be a defacto standard upon which other legislation is likely to be based.

From a purely legal standpoint, it is hard to argue against the intent of the anti-circumvention section of the DMCA. There is little compelling reason for anyone acting in a legitimate way to be circumventing an encryption mechanism that, when utilised legally, should not impact on the content, and the cases where there are reasons for doing so are limited and can be individually provided for, as has been implemented in Title IV of the DMCA already. Some provisions of Title I however are in conflict with previously granted rights, and this is clearly an issue that needs to be investigated and resolved, as it leaves room for interpretation and so increasingly complex court cases.

Title II of the Act are also controversial for the fact that little consultation with legal authorities is required to issue an infringement report to an ISP, and require them to act “promptly? [10]. This is a situation in which it is clear that due process needs to be used, lest innocent people be unwittingly affected by the swift application of this law [11].

There are, however, long term implications to this. Given that copyright in America is granted for the life of the creator, and subsequently for 70 years beyond this by the Sonny Bono Copyright Term Extension (CTEA) Act [2], passed into law by the US Senate in a similar fashion and at the same time as the DMCA, content could outlast devices used to decrypt and display it, and someone who wishes to view the content may devise an encryption circumvention mechanism. It is questionable whether rights holders would be compelled to act in such a case, but the law as it stands does not preclude copyright holders pursuing such activity many years after it has become irrelevant as a revenue stream or otherwise having implications for the original creator of the material.

If anything, it could be argued here that the DMCA is merely a facilitator, and that the CTEA is the one that could be to blame for this extended period of enforceability. The Sonny Bono Act appears to all intents and purposes simply designed to protect revenue streams for posthumous rights holders, rather than being in the original spirit of copyright, which was to encourage the production of new materials by providing adequate protection for revenue to be earned soon after the publication. With protection granted for life and 70 years subsequent to death, it appears that the law is not encouraging creativity, but rather protecting the ability to earn from a limited amount of creative material, not just for the original creator but also those who hold the rights after the creator’s death. Patent law on the other hand still limits patent protection to 20 years, and clearly this is incentive for innovation to keep occurring during a single lifetime.

As unpopular with rights holders as it might be, if copyright law was brought into line with patent law as it stands, perhaps through the refocusing of attention from revenue stream protection to creativity would lessen the controversy caused by the DMCA. It is clear that the right to copyright is undeniable, and the legal mechanisms to protect it combined with the technological mechanisms are necessary, to some extent, in a global economy running on the ease of digital communications and other technology.

However, the DMCA, and related treaties, do not appear to be in the general public interest, catering more to a limited set of corporate interests. Democratically elected governments and the legislation they enact should by their very nature be in the interests of the public which has elected them, and equally should not be acting, or indeed appearing to, solely on the behalf of third parties who have significant vested interests in the outcomes of legislation, as has unfortunately appeared to have transpired with the Digital Millennium Copyright Act.

References

  • WIPO Copyright Treaty in Wikipedia (http://en.wikipedia.org/wiki/WIPO_Copyright_Treaty)
  • Copyright in Microsoft Encarta Encyclopaedia 2005 Student Edition. Microsoft Corporation. All rights reserved.
  • Fair Use in Wikipedia (http://en.wikipedia.org/wiki/Fair_Use)
  • Text of the WIPO Copyright Treaty, 1996 (http://www.wipo.int/documents/en/diplconf/distrib/94dc.htm)
  • DMCA Article 1201: WIPO Copyright and Performances and Phonograms Treaties Implementation Act in Wikipedia (http://en.wikipedia.org/wiki/DMCA_1201)
  • US vs. Elcomsoft at the Electronic Frontier Foundation (http://www.eff.org/IP/DMCA/US_v_Elcomsoft/)
  • US vs. Elcomsoft FAQ at the Electronic Frontier Foundation (http://www.eff.org/IP/DMCA/US_v_Elcomsoft/us_v_elcomsoft_faq.html)
  • Felten vs. RIAA at the Electronic Frontier Foundation (http://www.eff.org/IP/DMCA/Felten_v_RIAA/)
  • Lexmark vs. Static Control at the Electronic Frontier Foundation (http://www.eff.org/legal/cases/Lexmark_v_Static_Control/)
  • Digital Millennium Copyright Act in Wikipedia (http://en.wikipedia.org/wiki/DMCA)
  • Fingered by the movie cops? in Salon.com, 23rd August 2001.(http://www.salon.com/tech/feature/2001/08/23/pirate/index.html)
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    3 Responses to “Copyright in the Digital Era”

    1. Krammit, you’re essay is better than mine, though is also very different!

    2. dunno, you did get 88 in the last one while i got 85… and it’s kinda inevitable given that you look at the hardcore legal side of things, while I’m more interested in the tech :)

    3. just to mention, i got 82 for this.

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