COPYRIGHT LAW 2003

Professor Fischer

CLASS of April 9 2003: TECHNOLOGICAL PROTECTION

MEASURES

WRAP-UP: DMCA s. 1201

• 2 kinds of protection. The DMCA distinguishes between

• Access Control Measures (stronger)

• Copy Control Measures (weaker)

• Note – not technology-specific

Access Controls: DMCA section 1201(a)(1):

• “No person shall circumvent a technological protection measure that effectively controls access to a [copyrighted] work…”

• This prohibits access to a work, not just access to a copy of the work.

• Thus this right broadens copyright owner’s rights.

• Does this result in overprotection?

DMCA 1201(a)(2): Anti-Trafficking Provisions – Access

• Prohibits manufacturing, importing, offering to public, provide, traffic in technology that is primarily designed to circumvent technological protection measures that effectively control access, has only limited commercially significant purposes except to circumvent technological protection measures, or is marketed by that person with knowledge for use in circumventing technological protections.

Anti-trafficking: Copy Controls – s. 1201(b)(1)

• Rather similar but bars manufacture or trafficking in technologies that are primarily designed or produced for the purpose of circumventing technological measures that effectively protects a right of the copyright owner [as opposed to access to the copyrighted work]

Penalties under DMCA

• What civil and criminal penalties are applicable to violations of the DMCA?

Penalties under DMCA

• What civil and criminal penalties are applicable to violations of the DMCA?

• S. 1203 (civil) – injunctive relief, damages (actual or statutory ($200 to $2500 for act of circumvention, device, product etc..; triple damages for repeated violation), costs, attorney’s fees). Reduction for innocent violation.

• S. 1204 (criminal) – first offense: fine up to $500,000 and/or imprisonment up to 5 years; subsequent offense: fine up to $1 million and/or imprisonment up to 10 years

Does Fair Use Survive the DMCA?

Does Fair Use Survive the DMCA?

• S. 1201(c) (1) provides: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”

• -also doesn’t affect vicarious or contributory liability or free speech rights

DMCA s. 1201 (d)-(j)

• Section 1201 (d)-(j) provides exceptions for, e.g., certain reverse engineering, law enforcement activities, certain library uses, certain encryption research, privacy protection, protection of minors, security testing of computer systems

• Also – rulemaking provision under s. 1201(a)(1)(B)-(D).

First Triennial Inquiry

• Are there particular “classes of works” as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses if they are prohibited from circumventing such technological measures

• On October 27, 2000, Library of Congress/Copyright Office issued a final rule identifying 2 classes of works exempt from access provisions

Exemptions following first Copyright Office triennial

inquiry• 1. Compilations of lists of web sites blocked by

filtering software applications• 2. Literary works, including computer programs

and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

• In future there may be a need for more exemptions

Second Triennial Inquiry – ongoing!

• Public hearings to be held starting this Friday April 11 2003 – see: http://www.copyright.gov/newsnet/2003/issue_191.html#hearings

• Comments and reply comments have been posted on Copyright Office web site.

• Suggested exemptions include literary works protected by access controls that protect both copyrighted works and p.d. works; motion pictures on DVD, e-books, works broadcast on college radio stations, tools that previously existed but can be used as technological circumventions etc.

Universal City Studios v. Reimerdes CB p. 581

• Plaintiffs: 8 major motion picture studios

• Defendants included (l) Eric Corley a.k.a. Emmanuel Goldstein, publisher of 2600: The Hacker Quarterly

• Ps alleged violations of DMCA – how did defendants respond?

Jon Johansen: Creator of DeCSS• Norwegian teenager: 15 years

old when he created DeCSS• Prosecuted under s. 145(2)

145(2) of the Norwegian Criminal Code, which punishes "any person who by breaking a protective device or in a similar manner, unlawfully obtains access to data or programs which are stored or transferred by electronic or other technical means."

• Acquitted in Jan. 2003, under appeal

• See an essay by Nowegian professor Jon Bing at: http://www.eff.org/IP/DRM/DeCSS_prosecutions/Johansen_DeCSS_case/20000125_bing_johansen_case_summary.html

For a Norwegian legal perspectivre

Protesters at the federal trial (2000)

http://www.nylug.org/articles/index.shtml?nycdvdcourt“Electronic Civil Disobedience?”

REIMERDES

• Cause of action: DMCA 12(a)(2) – anti-trafficking provisions

• Defense: Actions don’t violate DMCA and DMCA violates the First Amendment

JUDGE KAPLAN

• Finds • 1. Posting DeCSS was a violation of 1201(a)(2) that

was not protected by statutory exceptions for fair use, good faith encryption research, or security testing or by fair use, as was linking where knew offending material on linked-to-cite and knew unlawful circumvention technology and link created to disseminating that technology..

• 2. Anti-trafficking provisions constitutional under first Amendment

• 3. Awards injunctive and declaratory relief- to deter

REIMERDES APPEAL

• Second Circuit ruled in November to affirm Judge Kaplan’s order

• Kathleen Sullivan, the Dean of Stanford Law School and a noted constitutional scholar, argued the appeal for the defendants.

• Review by the U.S. Supreme Court is not sought

More DMCA litigation• Considerable number of cases have been brought under the

DMCA• Some, such as EFF Fred Von Lohmann, have alleged that

the unintended consequences of the DMCA litigation is that it is being used not to control piracy but to stifle competition, to impede free expression and scientific research, and to jeopardize fair use. See: http://www.eff.org/IP/DMCA/20030102_dmca_unintended_consequences.html

• Some prominent commentators like Pamela Samuelson have argued for revision of DMCA

• Copyright industries counter that the DMCA is necessary to combat the growing problem of piracy

Felten Case

• Edward Felten is Associate Professor, Dept. of Computer Science, Princeton University – see “Freedom to Tinker” blog at: http://www.freedom-to-tinker.com/

• RIAA warned conference organizers that publishing Felten’s paper on SDMI research would violate DMCA

• What happened after that?

Sklyarov/ElcomSoft Prosecution: ElcomSoft was acquitted

DMCA- copyright management provisions

• S. 1202

• Kelly v. Arriba Soft

• Concerns of Professor Julie Cohen re: privacy – loss of anonymity