THE Digital Millennium Copyright Act 10 YEARS LATER …….

[Anonymous]

http://blog.wired.com/27bstroke6/2008/10/ten-years-later.html
10 Years Later, Misunderstood DMCA is the Law That Saved the Web
If
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
But
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
liability.

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.
Consider
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.

Anti-Circumvention
The
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.”

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October 29, 2008 at 11:10 AM