THE Digital Millennium Copyright Act 10 YEARS LATER …….

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THE Digital Millennium Copyright Act 10 YEARS LATER …….

 user 2008-10-29 at 11:10:17 am Views: 40
  • #20550
    10 Years Later, Misunderstood DMCA is the Law That Saved the Web
    you’re wondering whom to thank for the Web 2.0 explosion in interactive
    websites, consider sending a bouquet to Congress. Today’s internet is
    largely an outgrowth of the much-reviled Digital Millennium Copyright
    Act that lawmakers passed in 1998, and President Clinton signed into
    law exactly a decade ago Tuesday.

    Blogs, search engines,
    e-commerce sites, video and social-networking portals are thriving
    today thanks in large part to the notice-and-takedown regime ushered in
    by the much-maligned copyright overhaul. A decade ago, when the DMCA
    was enacted, these innovations were unheard of, embryonic or not yet
    conceived. Now, Google has grown into one of the world’s largest
    companies, and its video-sharing site YouTube has left an enduring mark
    on public discourse. The Mountain View, California, company is one of
    many that openly acknowledges the DMCA’s role in its success, a view
    shared by public interest groups.”This was the opening shot of the
    digital age,” recalls Art Brodsky, a writer at the time and now the
    communications director for Public Knowledge, a Washington, D.C.-based
    digital rights and lobbying group.

    The DMCA was conceived a
    decade ago as the United States’ implementation of an international
    copyright treaty called WIPO. Hollywood wanted the bill to protect its
    intellectual property from being infringed on a massive scale, and
    secured a still-troubling anti-circumvention rule that generally
    prevents consumers from bypassing copy protection schemes. But history
    has shown that the far-more beneficial element in the law is a
    provision that provides ISPs, hosting companies and interactive
    services near blanket immunity for the intellectual property violations
    of their users — a provision responsible for opening vast speech and
    business opportunities — realized and unrealized.

    Today, the
    importance of the law is rare point of agreement between civil
    liberties groups and the entertainment industry, which says the
    anti-circumvention language was the sine qua non for technologies like
    the DVD, which was in a test-marketing stage when the DMCA was signed.
    The DVD is now among the world’s most widely accepted advances,
    fostering a new line of electronics manufacturing, and online and
    brick-and-mortar DVD rental outlets.

    “Based on first-hand
    experience, the studios would not have embraced the DVD technology, at
    least not as quickly as they did,” says Fritz Attaway, a policy adviser
    for the Motion Picture Association of America, and its lead lobbyist
    during DMCA congressional negotiations. “There was tremendous concern
    in releasing movies in this greatly improved format that could not be
    protected against duplication.”

    Still, the DMCA’s separate
    notice-and-takedown provision has proven even more crucial to the
    growth of the internet. The provision grants immunity to so-called
    “intermediaries” — ISPs, for example — for any copyright infringement
    by their users. To earn that so-called “safe harbor,” the intermediary
    such as video-sharing site YouTube must promptly remove material if the
    copyright holder sends a takedown notice. But the company can restore
    the content if the user certifies that it’s noninfringing, and the
    copyright claimant fails to sue.Paired with the 1996 Communications
    Decency Act, which provides similar immunity against noncopyright
    claims like defamation, the DMCA made it possible for everyone from
    Digg to WordPress to provide forums for users without constant fear of
    being sued out of existence.”These two protections for intermediaries
    have been absolutely crucial for giving us the internet today,” says
    Fred von Lohmann, an internet attorney with the Electronic Frontier
    Foundation. “You could not run a blog without these. You couldn’t run
    MySpace, AOL without these two things.”YouTube spokesman Ricardo Reyes
    agrees. “We definitely depend on the safe-harbor provisions,” he says.

    Takedown Notice
    the privilege also comes with a price. The law demands intermediaries
    such as YouTube to take down content immediately in response to a
    notice, without evaluating the claim for reasonableness or accuracy, or
    considering the fair use rights of users. If YouTube doesn’t abide by
    the notice, it loses its immunity and subjects itself to copyright

    That has opened the door to many abuses of free
    expression. But while speech might be limited or eliminated under
    faulty takedown notices, the speech itself exists in a forum that might
    not otherwise exist without the DMCA.

    The abuses, however, run rampant.
    Uri Geller — famous for “bending spoons with his mind” — who last year
    had sent notices to YouTube demanding the removal of a video
    purportedly debunking his tricks. He didn’t have the copyright but the
    video was briefly removed until a lawsuit got it reposted.Last year,
    Viacom spammed YouTube with 100,000 takedown notices based on a general
    search for its shows on the site. Viacom is also seeking $1 billion in
    damages in a civil lawsuit against YouTube — a major DMCA test case
    threatening to undermine the safe-harbor privilege.And more recently,
    Universal Music issued a takedown notice to YouTube over a Pennsylvania
    woman’s 29-second video of her toddler dancing to Prince’s “Let’s Go
    Crazy.” The site removed the video, and the mother — Stephanie Lenz —
    sued the music company for abusing the DMCA, arguing that she was
    making fair use of the song, which is barely audible in the background
    of the video.There is no bright-line rule defining fair use. The
    factors include how much of the original work was used, whether the new
    use is commercial in nature, whether the market for the original work
    was harmed, and whether the new work is a parody.

    In a rebuke to
    Universal, U.S. District Judge Jeremy Fogel ruled that the music label
    should have taken fair use into account before issuing a takedown
    notice, and allowed her DMCA-abuse case against Universal to proceed.
    Universal had claimed it did not need to consider fair use before
    issuing take down notices.

    The shoot-first policy the DMCA
    pushes on websites has even annoyed Republican presidential candidate
    Sen. John McCain, who voted for the DMCA. McCain has been reusing
    snippets of broadcast news footage in his online campaign videos, and a
    variety of news outlets have been getting the videos yanked from
    YouTube with takedown notices.

    This month, McCain’s campaign
    asked YouTube to reconsider its automatic takedown policy, prompting a
    rebuke from the site’s lawyers. Citing the DMCA, YouTube said it would
    lose its immunity if it hesitated. “Without this safe harbor, sites
    like YouTube could not exist,” YouTube attorney Zahavah Levin wrote
    McCain.”We hope that as a content uploader, you have gained a sense of
    some of the challenges we face every day in operating YouTube,” general
    counsel Zahavah Levine added.

    controversy surrounding the safe harbor provision is minimal compared
    to the DMCA’s so-called “anti-circumvention” language.The law dictates
    that “no person shall circumvent a technological measure that
    effectively controls access to a work protected under this title” —
    language that, for example, appears to block a DVD owner from copying a
    disc they’ve lawfully purchased. Because such copying can fall under
    the rubric of fair use, the law nullifies some consumers’ rights, says
    ACLU lawyer Aden Fine. “One of the big problems with the DMCA is it
    does not take into account fair use rights,” Fine says. “It seems to
    sort of ignore the concept of fair use.”Developing and selling
    DVD-ripping tools has been found illegal under the law, an
    interpretation now being challenged in court.

    But it’s not just
    movies and music that are wrapped up in the DMCA. Dmitry Sklyarov, a
    former employee of the Russian software company ElcomSoft, was arrested
    and jailed for three weeks in 2001 after finishing a speech at the
    DefCon hacker’s convention in Las Vegas. Dmitry_sklyarov Pictured here,
    Sklyarov was charged with DMCA copyright violations for trafficking a
    program he wrote that decrypted Adobe e-book files. The charges were
    later dropped in exchange for his cooperation in the government’s case
    against ElcomSoft.

    The anti-circumvention language has even been
    used in cases that have nothing to do with copyright. In 2002, Harvard
    professor Ben Edelman lost a lawsuit over his bid to decrypt the list
    of some 5,000 websites that the popular porn filter N2H2 was blocking.
    “Today, we don’t know whether that porn filter works or is blocking
    nonporn sites,” Edelman says. “The DMCA blocks me from doing research
    to see if the porn filter works.”And Princeton computer scientist Ed
    Felten, who was a witness for the U.S. government in its anti-trust
    prosecution of Microsoft, claims he was threatened with a DMCA lawsuit
    in 2001 if he presented a paper at a scholarly workshop explaining
    defects in the Secure Digital Music Initiative’s digital watermarks on
    music files.

    Technology companies have even tried using the law
    to suppress competition. In 2003, Chamberlain Group, the maker of an
    automatic garage door opener, sued Skylink Technologies for
    manufacturing a universal remote that worked on Chamberlain’s doors.
    The company argued that the remote circumvented the electronic
    handshake that controlled access to the garage door opener. Similarly,
    Lexmark sued under the DMCA to stop a rival from selling after-market
    replacement printer-ink cartridges for Lexmark printers. Both claims
    were eventually shot down in court.The DMCA includes a safety valve
    intended to combat such abuses, but it’s proven ineffective.Under the
    law, every three years the Librarian of Congress revisits the
    anti-circumvention measures and carves out specific exceptions. In 10
    years, though, that process has paved the way for only a handful of
    exceptions, and they are sometimes meaningless.

    An exception
    adopted during the last review in 2006 granted mobile-phone owners the
    right to circumvent the technological locks on their phones. Doing that
    could allow a user to switch phone carriers without buying a new phone.
    Yet the ruling did not require the telephone carriers to unlock their
    customers’ phones, and marketing of the software or hardware to unlock
    the phones still remains illegal.Despite the problems and abuses, it’s
    impossible to gauge what the internet landscape would look like today
    had it not been for the DMCA, which Clinton said in a signing statement
    was a law “carefully balancing the interests of both copyright owners
    and users.”The MPAA’s Attaway, who calls himself the lobbying group’s
    “old man” for his 33 years of service, recalls that the DMCA was a
    compromise from the start.”The ISPs wanted safe harbor provisions in
    return for their support for the anti-circumvention provisions, which
    was one of the major and most important compromises in this
    legislation,” he says. “It’s not perfect. But it’s better than nothing.”