Copyright in Cyberspace: Rights Management and Copyright:
The Digital Millennium Copyright Act


Stacey L. Dogan
Northeastern University School of Law
Section One | Section Two | Section Three | Section Four | Section Five |

Introduction. The Digital Millennium Copyright Act, which President Clinton signed into law on October 28, 1998, created significant new rights for copyright owners. Whereas copyright law previously centered on the exclusive rights of copyright owners to perform certain acts with their works, this new legislation for the first time created a right to exclude access to copyrighted works. The DMCA regulates technology that controls access to and use of works, rather than regulating the use itself. Its so-called "anti-circumvention" and "rights management" provisions facilitate copyright owners in preventing others from viewing their works and, some have argued, from performing acts that would previously have been allowed under the "fair use" exception to the copyright laws. This section will briefly review these provisions of the DMCA and the controversy surrounding them.

The history. In the early 1990s, as the importance of digital communications became increasingly clear, certain members of the "content community" -- creators and disseminators of copyrighted works -- urged the federal government to enhance the protections available to them under the copyright laws. These advocates contended that, because of the ease with which computer users could reproduce and transmit exact replicas of their creations, existing copyright law failed to protect them against infringement in the digital environment. They sought a new set of rights that would protect against attempts to dismantle or remove technologies that controlled access to, or use of, their copyrighted works.

In 1995, the Clinton Administration's Information Infrastructure Task Force released a White Paper on Intellectual Property and the National Information Infrastructure, which recommended the creation of new "anti-circumvention" rights to address these purported problems. Specifically, the White Paper proposed revision of the copyright law to prohibit the sale, importation, or manufacture of any technology whose "primary purpose or effect is to avoid, bypass, remove, deactivate, or otherwise circumvent" devices designed to protect the exclusive rights of copyright holders. In the fall of that year, the Administration backed legislation to enact the changes proposed in the White Paper. The legislation, the National Information Infrastructure Copyright Protection Act (NIICPA), languished in Congress, in part due to the opposition of a broad consortium of content users, including libraries, educational institutions, and Internet Service Providers. Opponents feared that the increased availability of technological protections was already threatening the public's ability to access information, and that the proposed legislation would only worsen the situation. See, e.g., Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29 (1994); Pamela Samuelson, The Copyright Grab, Wired vol. 4.1, January 1996.

The roadblock in Congress, however, did not for long detain the drive for increased protection. Proponents of the legislation turned to the international realm, ultimately convincing delegates to the World Intellectual Property Organization ("WIPO") to sign the WIPO Copyright Treaty, which contained a weakened version of the Administration's proposed anti-circumvention and rights management provisions. Some scholars have suggested that United States copyright law already provided the protections called for under the Copyright Treaty. See, e.g., Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 Va. J. Int'l L. 369 (1997). Nonetheless, proponents of the original, stronger versions of the anti-circumvention and rights management provisions convinced Congress that the United States must take action to fulfill its treaty obligations. The Senate did not ratify the treaty; instead, over the next two years, legislators proposed various bills in Congress to implement its requirements. These efforts finally culminated in the passage of the Digital Millennium Copyright Act of 1998.

For a more thorough review of the White Paper's recommendations in comparison to the WIPO Copyright Treaty, see Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L. J. 161 (1997).

The DMCA. As discussed in previous sections, the DMCA changed the law in several ways, including its creation of a "safe harbor" for Internet Service Providers accused of copyright infringement and its slight expansion of section 117. For summaries of the DMCA's provisions, see the Copyright Office's Summary of the DMCA; see also Jonathan Band, The Digital Millennium Copyright Act, IP Worldwide, December 1998. The provisions that created the most furor, however, were the new sections 1201 and 1202 of the Copyright Act -- the so-called anti-circumvention and rights management provisions.

Review section 1201 and section 1202 before considering the following.

 

Comments, notes, and questions

  1. The "anti-circumvention" provision of the WIPO Copyright Treaty provides:
  2. Article 11: Obligations concerning Technological Measures

    Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

    Compare Article 11 with the new 17 U.S.C. 1201. Section 1201 actually contains three separate prohibitions: first, on the circumvention of technological measures that effectively prevent access to copyrighted works ( 1201(a)(1)); second, on the manufacture, sale, distribution, or importation of technologies that are designed, marketed, or that have a limited significant purpose other than circumventing technological measures that effectively prevent such access ( 1201(a)(2)); and third, on the manufacture, sale, distribution, or importation of technological measures that are designed, marketed, or that have a limited significant purpose other than circumventing "protection afforded by a technological measure that effectively protects a right of a copyright owner" under the copyright laws. What is the difference between these three provisions? How, if at all, does each compare to the prohibitions anticipated by Article 11 of the WIPO Copyright Treaty? See Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L. J. 161, 169-72 (1997) (comparing WIPO treaty with an earlier draft of U.S. implementing legislation).

  3. Does section 1201 have a fair use exception? Suppose that an individual wants to obtain access to an encrypted novel in order to write a review. The owner of the work has "published" it (i.e., has transmitted a copy-protected version) to anyone willing to pay a substantial fee. The novel is not available in any public libraries. If our critic develops a device designed to break the technological protection and obtains access to the work, then writes a critical commentary of it, has the critic committed traditional copyright infringement? Has she violated section 1201? Note the invocation of fair use principles in 1201(c)(1), (f), and (g). Does any of these subsections address our hypothetical?
  4. The DMCA's anti-circumvention and anti-device provisions do not require that the party engaging in circumvention -- or distributing the banned device -- have done so for purposes of copyright infringement. A number of critics of the DMCA would have supported an act that tailored itself to infringement-inducing acts of circumvention. Congress nonetheless chose the broader language of section 1201. Why do you think the legislature (with the support of the Clinton Administration) took this route? Can you imagine any circumstances in which a party might circumvent a protection device for purposes other than committing copyright infringement? Should that party be found to have violated the law? See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech. L. J. __ (draft) (http://www.sims.berkeley.edu/~pam/papers/dmcapaper.pdf, visited August 11, 1999).
  5. Many members of the United States software industry vociferously opposed section 1201's device provisions, contending that the Act would inhibit encryption research because bona fide researchers might fear running afoul of the DMCA. Congress included section 1201(g) to allay these concerns, but critics continue to complain that the subsection's vague language leaves too much uncertainty. Pursuant to section 1201(g), the Registrar of Copyrights, together with the Assistant Secretary for Communications and Information of the Department of Commerce, have been conducting a rulemaking procedure to evaluate the effect of section 1201(a) on encryption research. A number of parties on both sides of the issue filed comments, which you can review at www.loc.gov/copyright/reports/studies/comments.html. After reviewing some of these comments, do you think that section 1201 poses a real threat to encryption research in the United States? If so, could Congress revise the language of section 1201 to eliminate or ameliorate that threat?
  6. Consider the rights management provision of section 1202. This provision -- which prohibits tampering with information about the identity of the copyright owner, the terms and conditions of use, and related information affixed to copyrighted works -- has encountered less vocal criticism than section 1201. Nonetheless, Professor Julie Cohen has warned that rights management protection could raise first amendment and privacy concerns. She contends that, as technology develops, copyright owners could use their "rights management systems" to accomplish such things as monitoring the reading habits of individuals and enforcing terms of their agreements with users. See Julie E. Cohen, A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace, 28 Conn. L. Rev. 981 (1996). How realistic are these concerns? Do they justify an abandonment, or merely a revision, of section 1202's overriding objectives?

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