December 10, 2003

opinion

IN 1998 CONGRESS enacted the Digital Millennium Copyright Act – section 1201 of the federal Copyright Act – in response to two pressures: a perceived need to implement obligations imposed on the United States by the 1996 World Intellectual Property Organization Copyright Treaty and the concerns of copyright owners that their works would be widely pirated in the networked digital world.

But the anticircumvention provisions of the law have not been used as Congress envisioned. In practice, those provisions have been used to stifle a wide array of legitimate activities.

Section 1201 contains two distinct prohibitions: a ban on acts of circumvention and a ban on the distribution of tools and technologies used for circumvention.

The first prohibits the act of circumventing a technological measure used by copyright owners to control access to their work. 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 when 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.

A second prohibition outlaws the manufacture, sale, distribution, and trafficking of tools and technologies that make circumvention possible.

One consequence is the damage to the fair-use doctrine. Fair use is a crucial element in U.S. copyright law – the principle that the public is entitled, without having to ask permission, to use copyrighted works in transformative ways or other ways that 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 TV 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.

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.

Whatever the impact 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.

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 use of these works will depend on the availability of tools to bypass these digital locks.

The DMCA's anticircumvention 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 important, 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 commonplace 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.