The dangers of the Digital Millennium Copyright Act: much ado about nothing?

• Author: Calandrillo, Steve P.

ABSTRACT

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of "technological protection measures" in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a noble one, but lurking is the danger that it comes at the expense of public access to protected works and future innovation. Despite America's long history of "fair use" protections in copyright law, commentators have warned that consumers now find themselves unable to do many of the same things with copyrighted works that they previously could--anyone who might sell them the technology to access a protected work and enable fair use would find themselves in violation of the DMCA. Worse, early litigation dramatically expanded the definition of what constitutes a "technological protection measure" deserving of the law's respect. As the definition broadened, scholars feared that even modest innovations--ones that would never qualify for a patent under existing law--could wind up receiving perpetual patent-like protection through the backdoor of the DMCA. Despite the experts' dire predictions, however, subsequent common law interpretation of the DMCA has reined in many of its potential dangers. The judiciary's focus has rightly shifted to the need to balance innovators' interests with the equally important goals of public access and enhancing overall social welfare. Nonetheless, coherent and uniform protection of fair use under the DMCA is likely best achieved through congressional action.

TABLE OF CONTENTS INTRODUCTION I. THE GOLDEN ROAD TO THE DIGITAL MILLENNIUM COPYRIGHT ACT II. INTERPRETING THE DMCA A. The DMCA's Key Provision: An Anticircumvention Rule B. The Judiciary's Treatment of Fair Use, Liability, and Emerging Technologies Prior to the DMCA C. The Post-DMCA Landscape: The Death of Sony, the Failure of Constitutional Challenges, and the Dangerously Expanding Definition of TPMs 1. The DMCA's Anticircumvention Rule Meets Sony and the Fair Use Doctrine 2. The DMCA Meets (and Defeats) Constitutional Challenges 3. The Scope of the DMCA Today: How Broad is a TPM? III. PROPOSED LEGISLATION ATTEMPTING TO REIN IN THE DANGERS OF THE DMCA A. Protecting the Fair Use Rights of Consumers and the Manufacturers Who Make Possible the Exercise of Consumers' Fair Use Rights 1. The Digital Media Consumers' Rights Act 2. The BALANCE Act of 2003 B. Clarifying Consumers' Fair Use Rights in the Digital World 1. The FAIR USE Act of 2007 2. The Consumer Technology Bill of Rights C. Mandatory Disclosure of TPMs: The Digital Consumer Right to Know Act of 2003 IV. JUDICIAL RE-INTERPRETATION OF THE DMCA A. Narrowing the Scope of the DMCA: Neither Consumers nor Manufacturers Violate the DMCA if the Challenged Circumvention Does Not Threaten Rights Protected Under the Copyright Act B. Narrowing the Scope of TPMs: Effective Restriction of All Access to the Underlying Copyrighted Work Predicates DMCA Protection C. Narrowing the Scope of Circumvention: Mere Unauthorized Access Does Not Establish Circumvention of a TPM V. REINING IN THE DANGERS OF THE DMCA: MUCH ADO ABOUT NOTHING? A. Balancing the Societal Benefits and Costs of Fair Use B. Love's Labours Lost C. Judicial Awakening: Inching Back Toward an Understanding of the DMCA Congruent with Congressional Intent 1. The Federal Circuit's Approach Likely Establishes Fair Use as a Defense to a Section 1201(a)(1) Violation 2. The Federal Circuit's Approach Falls Short of Establishing Fair Use as a Defense to a Section 1201(a)(2) Violation 3. Limiting the DMCA to the Digital World 4. A Weak TPM Does Not Outweigh the Public Interest in Information Access CONCLUSION INTRODUCTION

Sony Corporation discontinued production of Aibo in 2006, (1) but not before this small robotic dog became a vivid illustration of the controversy surrounding the Digital Millennium Copyright Act (DMCA). (2) A hacker known only as AiboPet reverse-engineered Sony's source code and generated tools allowing Aibos to, among other things, dance, respond to wireless commands, and share what they see. (3) AiboPet then shared those tools with other Aibo owners over the Internet. (4) Aibo owners responded enthusiastically; as one such Sony customer commented:

Aibo is an exciting toy, but Aibopet's enhancements kept the excitement going.... He's made tools to see what mood Aibo was in, or set it in different life stages, or have better wireless communications. There are tools to see in real time what Aibo sees, and vital signs, emotions, mood, voice recognition. Those were enhancements riding on top of Sony's Aibo that Aibopet created. (5) AiboPet never revealed Sony's encryption code. (6) Moreover AiboPet earned no money from distributing his programs, and in fact, likely enhanced Sony's product sales. (7) As another Aibo owner noted:

If it had not been for AiboPet's information, his invaluable knowledge and his generosity in sharing it with the Aibo community, I would not have purchased an Aibo, all the various software, [memory] sticks and yes, even my computer, a Sony VAIO, which I only purchased because of its stick reader. (8) Nonetheless, on October 26, 2001, Sony Entertainment Robots America informed AiboPet that he was violating the DMCA and demanded that he remove from the Internet all programs based on Sony's Aibo software. (9) Within a month, however, Sony retreated from this position in response to customer outrage and a threatened boycott of Sony products. (10)

What spawned this unfortunate tale? The Digital Millennium Copyright Act (DMCA) (11)--controversial legislation passed by the U.S. Congress on October 12, 1998, (12) and signed into law two weeks later by President Clinton. (13) The enactment marked the culmination of months of heated debate over the purpose and particulars of the DMCA (14) and coincided with the implementation of two international treaties signed in December 1996, at the World Intellectual Property Organization (WIPO) Geneva conference. At that momentous meeting, the United States signed onto the WIPO Copyright Treaty (15) and the WIPO Performances and Phonograms Treaty. (16) Both were designed to offer protections to the signatory countries' international copyright holders in light of fears surrounding emerging technologies in a global digital age. (17)

Within American borders, the DMCA was supported by the software and entertainment industries, and generally opposed by scientists, librarians, and academics. (18) Controversy surrounding the implications of the DMCA, however, has not been confined to these interest groups. (19) Since the DMCA's reach extends to millions of everyday technology consumers, the public at large has been brought into the debate on new technologies that offer seemingly unbounded access to information and creative works. (20)

This Article serves as an overview of the judicial and legislative copyright environment following enactment of the DMCA. Part I introduces the legislative history and public policy purposes behind Congress's passage of the DMCA. Part II examines the language of the DMCA and maps pertinent case law as DMCA jurisprudence began to emerge in the United States. Next, Part III reviews pending legislation proposed in response to some of the unintended dangers posed by the DMCA. Part IV analyzes the current judicial trend toward narrowing the DMCA. Finally, Part V concludes that this recent case law has brought application of the DMCA more closely--although not fully--in line with congressional intent, as well as with sound public policy and traditionally accepted intellectual property principles.

1. THE GOLDEN ROAD TO THE DIGITAL MILLENNIUM COPYRIGHT ACT

   In implementing the DMCA, Congress expressly rejected absolute liability for circumvention of technological protection measures shielding copyrighted works, as well as for the enablement of such circumvention. Rather, Congress sought to carefully balance the needs of copyright owners threatened by the ease of piracy in a digital era with the needs of the public for access to information and creative content. As revealed by the legislative history of the DMCA, Congress--envisioning a statutory scheme aimed at so-called "black boxes" and not at devices with substantial noninfringing uses--intended the doctrine of fair use to limit the DMCA's scope. (21)

   The signatory parties to the two 1996 WIPO treaties declared a noble desire to protect the rights of literary and artistic authors in a uniform manner, recognizing the profound impact of recent developments in communication technologies on the creation, use, and exploitation of such works. (22) At the same time, the WIPO treaties stressed the need to protect the larger public interest in access, research, and education. (23) As originally proposed for ratification by the Clinton Administration, (24) congressional leaders feared that the WIPO-related legislation would shift this private/public balance, making illegal what had previously been in the public interest as "perfectly lawful." (26) The Administration's proposed language was also interpreted to overrule the Supreme Court's landmark decision in Sony Corp. of America v. Universal City Studios, Inc., (26) which had held that VCR manufacturers could legitimately make devices that allowed taping of copyrighted programs without fear of prosecution for contributory infringement of the underlying copyright. (27)

   In response to the Clinton Administration's proposal for ratifying the WIPO treaties, Representative Tom...