In the 90s, the emergence of the Internet and person to person sharing software made the waters of copyright in the modern world increasingly murky. It was a seemingly lawless frontier, where people shared untold amounts of copyrighted media, where the lines of what constitutes fair use were blurred. The World Intellectual Property Organization Copyright Treaty in 1996, created international stipulations stating that countries must begin to tackle copyright issues that have arisen as a result of the Internet (WIPO 2). This, coupled with complaints from copyright holders and pressures from led to the creation of the Digital Millennium Copyright Act. Implemented in 1998, sought to bring order to this new, digital Wild West. It updated the Copyright Act of 1976, banning copyright circumvention, the production and distribution of copyright-circumvention devices, and generally trying to preserve digital protection while still promoting digital commerce. For example, technology that could unencrypt DVD and CD copy-protection software, allowing it to be copied and distributed without payment to the original creator, would be illegal. However since the implementation of the DMCA, concerns regarding its potency and effectiveness have arisen, as the reach of the internet extends farther into the unknown, digital copyright will only get more complicated, and revisions and solutions are needed.
There have been a number of cases wherein people have been threatened or sued for actions that would feasibly be considered fair use in a non-digital realm. In one such case, Sony threatened legal action against a small Norwegian website named Gitorious. Gitorious is an open-source programming website, where programmers and hobbyists share reverse-engineered source code for personal, non-commercial uses (Gitorious 3). Some of the original source code and development git for Sony’s PS3 were available on the website for programmers to personally modify (EFF 3/4). Sony claimed that they had reverse engineered their code for their Play Station 3 software, and were infringing on their copyright by sharing it. There is the danger that these could be distributed and marketed by other companies for economic gain, but there is every possibility that the code is being used for educational and personal purposes, which would constitute fair use in a non-digital realm. When put use through the common law test for fair use, Gitorious appears to be well within their rights: Gitorious’ purpose for having the code is for the advancement of personal programming knowledge and fun, it is by nature transformative and educational. The nature of the alleged violation tame and small in scope and scale, it’s just a few Norwegian programmers on an obscure website. The website serves the same purpose of the Sony Betamax, by providing people with the ability to use copyrighted material in a way that is still congruent with the requirements of fair use, even if their service has potential to allow people to commit infringement, the sale of the product in itself cannot be considered contributory infringement.
Additionally, international copyright law isn’t always congruous with that of the U.S. The bullying tactics employed by major companies utilizing the DMCA have dissuaded foreign programmers and creators from engaging in American affairs. In 2001, Russian programmer Dmitry Sklyarov was arrested on charges brought against him by Adobe Systems Inc. claimed his program violated the DMCA’s stipulations about creating and circulating anti-circumvention technology (EFF 8). He was detained for developing software that could convert Adobe e-books into PDF files, which effectively erased the digital watermark. The Russian company he worked for, called Elecosoft, distributed the software. Even though he was never formally charged with infringement, he was jailed for several weeks and kept in the United States for a total of five months, although he was eventually acquitted in 2002 and returned to Russia. This ordeal was asinine, and his being jailed even more so. He had supposedly committed contributory infringement, in the distribution of software to unencrypt digital watermarks. However, his software serves a much larger purpose than engendering infringement. Like the Sony Betamax case, his program served a purpose outside of infringement. The ability to save files offline, so that they may be printed and kept by the user doesn’t necessarily constitute infringement, as the software has sufficient legitimate use aside from the ability to commit infringement. In the non-digital realm, this would be covered by fair use. Even if it were infringement, according to the common law principle of Respondeat Superior, the charges should have been brought to his employer, Elecosoft, as the work was done under the scope of his employment, as they would have been liable for vicarious infringement.
The DMCA has used as a bully club by big companies to silence those who find weaknesses or flaws in their cyber security. The Secure Digital Music Initiative (SDMI), a company devoted to the copyright security of digital media, issued a challenge. The challenge charged skilled technicians to find a way to circumvent their digital watermarks. Teams from across the globe raced to find a way to break the code (EFF 5/6). A team from Princeton, helmed by Professor Edward Felton, succeeded in scrubbing SDMI’s digital watermarks. The team tried to present their findings at The Information Hiding and Workshop Conference. When they revealed their intent to expose the insecurities of the SDMI’s digital protections, the SDMI threatened legal action against them, citing an alleged violation of the DMCA’s clause regarding the removal of digital copyright watermarks. To avoid costly litigation against a better funded organization, Felton and his team were forced to withdraw their findings. The challenge was raised by the SDMI! They egged programmers on to beat their security, how can they bully them into not publishing their findings, which would no doubt lead to enhanced digital watermark security?
Incidences like those above have an adverse effect on America’s standing with the world in the realm of digital copyright. The fiasco with the SDMI caused the Information Hiding and Workshop Conference to be held off of American soil the following year. Thanks to the Dmitry Sklyarov incident, Russia issued a travel advisory to its international programmers, and Alan Cox, a respected member of the USENIX Advanced Computing Systems Association, resigned from his position, citing concerns regarding the incongruence of the DMCA with foreign copyright laws and the intrinsic ambiguity and of American digital copyright law. These kind of incidents hurt America’s credibility (EFF 9). They also hamper the advancement of digital security, and if they continue, will ensure that that progress occurs offshore, stimulating foreign economies and potentially cutting America out of loop. If American software can’t go toe to toe with that of foreign governments and agencies, what will that do to the safety and security of intellectual property in the future?
How is digital security supposed to be advanced when companies strong-arm the people who crack their encryptions? The DMCA’s anti-circumvention statutes are misguided. They should be revised to add an exemption based on the academic merit and intentions of researchers. It would serve to advance the power of copyright in regards to digital media, and prevent further illegal infringement. When the DMCA is used to threaten innovators and creators into surrendering their created code and innovations, it becomes counterproductive. Instead of eliminating digital piracy to continue to provide the economic incentive for creators to create, it actually hinders advancement, and contradicts what is otherwise protected under fair use.
Many of the devices and technologies that contain these digital encryptions are inhibiting the common law principle of fair use. Consumers who purchase products with these encryptions are permitted to use the product for personal, non-monetary endeavors. However, they can’t without the software and technology to break the encryptions. It’s the encryptions that are the problem. As long as protective code exists, programmers and hackers will always find a way to break it. It’s an arms race, and as history shows, they usually end with destruction and devastation. The law should only apply those who knowingly and purposely commit infringement, and either benefit monetarily or jeopardize the profits and economic market of the original company or product. The anti-circumvention clauses are impotent and futile. Countless projects have been abandoned due to a fear of indictment due to the DMCA. The goal of copyright shouldn’t be based on intimidation and exclusion. It should be based on symbiotic improvement and advancement, and the laws should reflect that.
The Digital Millennium Copyright ACT has numerous problems. It grows increasingly out of date and has been used by big companies to threaten small scale creators. Laws and copyrights were instated to protect, help, and cultivate creativity. Instead, it has stifled progress and scared those who wish to learn about, create, and increase security throughout the internet. It has changed just what fair use means, and has potentially put it in jeopardy. This act could put America on the wrong side of international copyright law and digital security technology. The DMCA need revision, to amend how it protects digital copyrights and anti-circumvention technology. As the internet and digital media only become more ubiquitous, the DCMCA will create more problems than it solves. The future of copyright is uncertain, but progress will come with the revision of the Digital Millennium Copyright Act.