Thursday, April 27, 2006

Electronic Frontier Foundation Releases Paper Studying Inintended Consequences of Digitial Millennium Copyright Act

The Electronic Frontier Foundation has released an in-depth paper studying the inintended consequences of the Digital Millennium Copyright Act. This is a very lengthy report, which can be read and downloaded in PDF format at the above link. I will attach the "executive summary" portion here, though:

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. 1

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 lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.

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. Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal-use copies of movies they have purchased.

The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners have wielded the DMCA to hinder their legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple invoked the DMCA to chill RealNetworks' efforts to sell music downloads to iPod owners.

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.

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