COPYCENSE

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 infringers from defeating anti-piracy protections added to copyrighted works and to ban the “black box” devices intended for that purpose.

In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities:

The DMCA Chills Free Expression and Scientific Research.

Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research.

The DMCA Jeopardizes Fair Use.

By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public’s fair use rights.

The DMCA Impedes Competition and Innovation.

Rather than focusing on pirates, many copyright owners have wielded the DMCA to hinder their legitimate competitors.

The DMCA Interferes with Computer Intrusion Laws.

Further, the DMCA has been misused as a general-purpose prohibition on computer network access which, unlike most computer intrusion statutes, lacks any financial harm threshold. As a result, a disgruntled employer has used the DMCA against a former contractor for simply connecting to the company’s computer system through a VPN.

Electronic Frontier Foundation. Unintended Consequences: Seven Years Under the DMCA. April 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.