How copyright became controversial

ABSTRACT

How did copyright become controversial? In a phrase, the Digital Millennium Copyright Act (DMCA). Although many of legal controversies that have swirled since its October 1998 passage trace their roots to other elements of copyright law, the DMCA created a new feature in copyright law that has crystallized why so many academics, librarians, computer users, and technology entrepreneurs object to what they regard as the overreaching nature of copyright law.

This signal feature is the ban on individuals cracking encryption codes used by content owners to restrict access to digital works on which they hold copyrights. Now encoded in Section 1201 of the Copyright Act, the statute reads: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." (17 U.S.C. 1201(a)(1)(A)) The definitions of those terms are broad enough to bar almost all unauthorized decryption of content. Subsequent language in the section also prohibits the manufacture, release, or sale of products, services, and devices that can crack encryption designed to thwart either access to or copying of material unauthorized by the copyright holder.

In other words, for the first time in history, it isn't the copyright violation that was the crime. It is the creation of the technological tools to violate copyright that became the crime.

The law germinated from a 1995 "white paper" drafted by Bruce Lehman, the first patent office chief and intellectual property guru in the Clinton administration. Heavily supported by copyright holders, the key rationale behind the white paper was that content owners would be unwilling to put their content in digital form were it not for new laws against those who defeat the digital locks they place on their products. The anti-circumvention concept gained momentum in 1996 when it was endorsed in a World Intellectual Property Organization Copyright Treaty. It was subsequently adopted as DMCA's Title I, the "WIPO Copyright and Performance and Phonograms Treaties Implementation Act."

Critics of current copyright law point to many expansions in its power over the past decade. Among the more recent measures are the Digital Performance Right in Sound Recording Act of 1995 (creating a new copyright in digital music performances), the No Electronic Theft Act of 1997 (eliminating non-commercial use as a defense against copyright infringement), the Sony Bono Copyright Term Extension Act of 1998 (adding 20 years to the already-lengthy terms of all copyrights), portions of DMCA mandating new royalties for digital music performances, and the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 (stiffening penalties for infringement). There are a few measures that arguably limit the power of copyright holders, including the Fairness in Music Licensing Act of 1998 (granting a limited exemption from music licensing for food service and drinking establishments) and elements of DMCA that limited Internet service provider liability for copyright infringement if they comply with procedures to take down allegedly infringing material from Web sites they control.

Some of those changes in law are directly at issue in current copyright controversies, such as the debate over extending copyright terms --- a challenge to Congress' authority over copyright law that has been accepted by the Supreme Court --- and what rates should be paid by Internet radio stations for the right to stream digital music over the Web. Other issues, like what to do about the free digital music Web site Napster and its many successor clones, delve into more fundamental questions: how file-sharing technologies can be held liable for contributing to the copyright infringement of their users, and whether users of a technology have a "fair use" defense against charges of infringement.

Yet it is the DMCA's anti-circumvention prohibition --- which has been upheld by the 2^nd Circuit Court of Appeals --- that is likely to have more sweeping effects on the future of copyright law because it is seen as undergirding the technological protection measures increasingly taken by content owners. This provision is also an illuminating lens through which to view the copyright debate.

I will examine four major positions about how extensive copyright law should be and evaluate the justification for each position. I will argue that the DMCA's anti-circumvention provision itself demonstrates the technology-specific nature of copyright law and suggests that it is difficult and perhaps impossible to draw the technological boundaries needed to sustain a coherent defense of copyright law, once one has accepted the premise of copyright law. It may well be that the weaknesses of the concept of copyright in a digital world make it hard to sustain a principled defense for the enshrinement of state power represented by copyright law.

I'll also discuss the challenges to Section 1201 in greater detail. I will then outline four major positions about copyright law, each with substantial support in the public debate. Finally, I'll offer reasons for my conclusions that by injecting anti-circumvention into the concept of copyright law, the DMCA exposes inherent weaknesses in what copyright law should do.

Index Terms

• General and reference

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