321 Studios is a company that produces a software program that can be used to back up DVDs. 321 claims that their product does not violate the DMCA because it has substantial non-infringing uses. The beginning of the document gives technical background on what a DVD is and how CSS encryption works. It also gives information on the companies involved in the lawsuit. 321 Studios filed the suit to prove that their software does not violate copyright law. Next, the document presents the legal standards for a motion of summary judgment, a motion to dismiss and rule 56(f). The first part of the discussion looks at recent, related cases (Elcom and Corley) involving the DMCA. The next section examines the wording of the DMCA and how one is liable under the act. Next is the Studios’ argument as to how CSS is a valid form of encryption and is protected by the DMCA. The court agrees with the Studios despite 321’s point that it is not an effective lock because decryption keys are widely available on the Internet. The following section outlines the arguments as to why 321’s software violates the DMCA. 321 argues that they circumvent the encryption within the law of the act because their software only works on original DVDs and the people who purchase these have the right to break the CSS. The court rejects this argument, citing a previous case (Corley). The next parts of the argument are about 1201 (b)(1). 321 claims that CSS only prevents access to, not copying of, DVDs, so they are not in violation of the DMCA. The court says that 321 misunderstands the statute and they are in violation because they sell a product that breaks encryption. 321 also argues that they are not in violation because the main use of their software has nothing to do with the DMCA or breaking CSS because it can be used to copy DVDs in the public domain. 321 also claims they do not circumvent CSS because they use a licensed key to unlock the encryption. The court rules that the part of the program that breaks the CSS is in violation of the DMCA. The court also finds that 321 is in violation of the DMCA in the way it markets its software and because it is made primarily to circumvent encryption. The court also says that the DMCA does not violate 321’s freedom of speech and first amendment rights or exceed Congress’ power. The court refers to the cases it cited earlier in the brief in this part of the discussion. The court orders an injunction against 321’s software. The last sections deal with the counterclaims and smaller issues of the lawsuit.
This case is another example of companies, in this case motion picture studios, using the DMCA to control a market. The case looks at the DMCA and is one that argues about its constitutionality. The court uses precedents like Corley in its ruling in favor of the DMCA, saying the law is constitutional and it is within the powers of Congress. This case is one of the earlier cases regarding DMCA and control, and since it deals directly with the DMCA, it is an example that goes against my thesis. The court, here, clearly decides a case using the DMCA and does not find issues with it as an act. It allows the studios to maintain the control over DVDs that they want. The DMCA is used to help and monopoly.

Although Digital Millenium Copyright Act (DMCA) is a part of copyright law, technology companies and content owners use the law to attempt to monopolize the market and control the aftermarkets. This effectively creates a new business model out of exploiting the DMCA that has met little challenge in the courts. Progress is the spirit of copyright law, and this is something that finds itself severly limited under the DMCA. This project provides not only the law itself, but also court cases in which the DMCA is challenged as well as articles that desmonstrate how various companies exploit the DMCA because it is beneficial to them to have control of their products and the aftermarket, as is shown in the article about Apple and RealNetworks. The DMCA has changed what copyright law is used for, and denies the pricnciples that copyright was founded on. It is a new way of doing business that benefits the technology companies instead of public interets.

This article examines the failures of the DMCA triennial rulemaking at protecting consumers from exploitation.  The evaluation of exemptions to the DMCA every three years is the acts “fail safe” measure to prevent consumers’ rights that copyright law gives them.  However, the article argues that this fails and congress needs to rethink the DMCA.  The exemptions to the DMCA can only be on reasons why someone can circumvent the technology, not on methods of circumvention.  These exemptions are also extremely limited in their scope, thus the general public will rarely fall under the exemptions.  It is also extremely hard for the average consumer to lobby for an exemption to the DMCA.  It is a long process that involves extensive legal work and heavy burdens outlined by the Copyright Office.  The article continues to outline the extensive process of participating in the 2006 exemption process.  This serves to demonstrate that this is not an easy task for a general member of the public to undertake.  One generally needs extensive legal and technical expertise. The Copyright Office is also very strict about their requirements in regards to evidence, further complicating the exemption process and alienating the average consumer.  The matter gets worse because of the Copyright Office’s refusal to exempt anything if unprotected formats still exist.  The Copyright Office also does not care about the effects of DRM on legal activities.  They regard things as “mere” inconveniences.  Consumer activities are also not important to the Copyright Office.  The Copyright Office also assumes that the copyright holders would withhold technology from the free market if DRM did not exist.  All of this demonstrates how the Copyright Office places consumers at the bottom of the food chain.  The next section of the article looks at the effects of the DMCA on fair use.  The article argues that fair use is there not only for the consumers, but also as a way for the courts to regulate copyright law in terms of new technology.  The DMCA blocks the court from looking at fair use and prevents people from acting in ways that they legally could under the 1976 Copyright Act.  In an age of new technology, it was once the responsibility of the courts to assess fair uses of new technology and media, but now this is ruled by the DMCA.  The Copyright office is essentially making decisions that Congress gave the courts the power to decide.   The article accuses the Copyright Office of being backward looking as opposed to forward looking, as copyright intended.  The last section of the article gives suggestions of what should be done in order to remedy these problems with the DMCA.
    This article is an example of how the DMCA actively denies consumers rights afforded to them by copyright.  The DMCA does not consider the consumer like copyright law does.  It looks past them as “mere inconveniences” and favors larger companies and content holders.  This shows how the DMCA works more for larger interest and denies the founding principles of progress that are embedded in copyright law.  The DMCA has changed the face and nature of copyright and has the potential to go further.   

This article argues that the anti-circumvention laws of the DMCA are being used to stifle competition and not in the spirit of copyright law in the traditional sense.   EFF claims that the DMCA puts scientific research, freedom of expression, fair use, competition and innovation and computer intrusion laws into jeopardy.  The next part of the article explains how the DMCA was enacted and what congress intended the laws to be for and protect.  The third section of the paper is evidence for the claim that the DMCA hampers research.  This section looks both and legal matters, speeches and how the DMCA works with the rootkit technology put on CDs.  The section also gives many examples of how research has been threatened and stopped because of the DMCA.  There are also examples of censorship and publications that were limited and pulled from publication because the DMCA, thus showing how it prevents free speech.  The fourth section of the paper gives examples of how the DMCA violates fair use, a fundamental principle of copyright law.  This section gives examples of DVD back-up software that is banned.  It also talks about copy protected CDs, ebooks, time shifting and manipulating fonts.  All of these examples show how actions that are allowed under the fair use doctrine can no longer exist under the DMCA.  The fifth section is about how the DMCA works against innovation and competition.  The DMCA stops progress and competition instead of working for it, as copyright law was designed to do.  This section gives examples of how the DMCA gets exploited by companies in order to control their market and the after markets.  This section gives examples of how the DMCA is used to control cell phone networks, music downloading, photography software compatibility and printer toner cartridges.  The DMCA is also used by videogame companies to disallow compatibility and prevent their games from being played on other platforms.  The sixth section of the paper deals with computer intrusion laws and how they are “displaced” by the DMCA.  This section uses a court case to show that even though this exists, this is the one thing that the courts are beginning to regulate.  The paper concludes that the DMCA takes copyright too far by disallow standard practices that are legal under regular copyright law.  The threat that the DMCA will be stretched farther with time also exists.  
I will use this paper for the examples it gives of how the DMCA functions against the intentions behind copyright law.  I will also use it as a starting point and further research some of the examples it provides.  The paper gives a good, clear analysis of the major issues of the DMCA and shows how it is being used as a means of exploitation rather than as copyright law.  The DMCA violates the principles that copyright was founded on.

    This article is a guide to how DRM controls the market place.  The article shows how music services that consumers pay for give their customers less than they promise because of copy protection and the DMCA.  The guide explains the restrictions of various music services and how the services cover these up through marketing.  The first service is iTunes.  Even though you purchase the music through Apple, iTunes can change the DRM whenever they want, thus they can change and limit what you can do with music that you own.  Apple also limits first sale, backing up, remixing, player compatibility and format conversion.  Even though you own the song, the DMCA allows Apple to control the music that you purchase and restrict your uses of it.  
Microsoft’s “Play for Sure” claims that Windows Media Player’s DRM allows you to choose your music and devices.  However, there are still severe restrictions because of DRM.  There are very few players that are compatible to play with the WMA DRM format.  If you want to use a player that does not support WMA content, you have to repurchase your library of music.  Even though Microsoft markets their DRM as user friendly and non-restrictive, it is more to make DRM a norm than the truth of the matter.
RealNetworks markets their services as compatible with any MP3 playing device.  This in fact is not true, because music purchased through RealNetworks only plays on devices that support their DRM or the WMA format, thus limiting the players that the songs can be played on and restricting use of their music. RealNetworks, like iTunes, limits the number of times you can burn a song as well as the number of backup copies that can be made.  They reserve the right to modify their DRM and what it controls.  RealNetworks also does not allow reselling or remixing songs purchased through them.
Napster 2.0 advertises itself as a service that allows you to have all the music you want in anyway that you want it.  It offers three services and all charge more for uses that were once free.  Napster Unlimited allows you access to all the music you want until you stop paying the monthly fee.  You also have to pay if you want to put it on a device, which can only be one that supports WMA.  It also costs money to burn it.  The DRM restrictions can change, you can only backup a limited amount of times and burning is restricted.
    I will use this article as an example of how companies use DRM to exploit the music market place.  Each service limits the music they sell so that it can only be used with products that they license.  They also limit what a person can do with the music, even things that are traditionally acceptable under copyright law such as making back up copies and the first sale doctrine.  This article shows how the DMCA changes traditional copyright laws and allows companies to exploit their customers.

This case is the appeal of the suit that The Chamberlain Group, INC. brought against Skylink Technologies, INC over garage door remote controls. Chamberlain claims that Skylink Technologies violated the DMCA because they manufactured a remote that can open garaged doors made by Chamberlain that use a “rolling-code” technology. Chamberlain filed suit against Skylink for both copyright and patent infringement, stating that the Skylink device is a “circumvention device” that goes around a code and thus violates the Circumvention of Copyright Protected System section of the DMCA. Chamberlain argues that the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The rolling code feature in the Chamberlain garage door openers is a computer program that changes the code that allows a person to open the garage door. The Skylink device does not use this code; rather it circumvents it and allows the door to be opened. This rolling code is copyrighted and Chamberlain asserts that the Skylink garage door opener circumvents this code, and therefore violates the anti-circumvention clauses of the DMCA. Skylink’s model 39 garage door opener simulates the rolling code used in Chamberlain’s models. However, the court did not agree with Chamberlain and ruled in favor of Skylink. The court decided that Chamberlain could not prove that Skylink developed the model 39 in order to circumvent the rolling code technology and that the model has little commercial value outside of this purpose. The model 39 can work with other garage door units, not only Chamberlains garage doors with rolling code security. The court concludes that the DMCA does not provide new property rights. The court claims that Chamberlain did not show how access provided by the model 39 transmitter constitutes infringement.
This case deals with aftermarkets and monopolies. Universal remote controls for garage doors are often purchased as replacements or backups to the devices included with the garage door on initial purchase. The aftermarket for these devices then becomes a lucrative market for those who provide replacement garage door openers. Skylink makes universal remotes that work with many different brands and models of garage doors. Chamberlain, a major garage door manufacturer sells replacement remotes for its products. However, Skylink cuts into Chamberlain’s aftermarket profits with its universal remotes. The DMCA protects circumvention of any copyrighted work, such as the rolling code in Chamberlain’s claim. However, this case is more than just a copyright infringement case, because it has larger significance in the marketplace. If Chamberlain had been able to win their case and make the model 39 illegal because of DMCA infringement, it would then give them more control of the aftermarket by taking away the competition of universal remotes. This case is an example of how companies are turning to copyright and the DMCA in order to give themselves control of a market. Copyright is being used to help give companies a monopoly in the area of the market that they want to control. I will use this case as an example of a company trying to exploit the DMCA in order to control a market.  It shows how copyright law is exploited by a manufacturer and then put into place by the courts.  The major point is that the courts do not find anything wrong in the DMCA, just a lack support by the plaintiff.  This shows that the DMCA is still open for exploitation, and this trend will continue.

PART 1

This book is a detailed look at NAFTA and the cultural industries. The book opens with an explanation of trade agreements like NAFTA and GATT as well as FTA and Cultural Industries. The book questions if culture should be subject to free trade. In the second chapter, John Sinclair examines cultural industries and the theory of cultural dominance and imperialism. Sinclair writes about the difference of cultural products from commodities because their appeal is their novelty and they are not used up when they are consumed. Sinclair questions if national culture should be protected by trade laws and to what extent. In the third chapter, Colin Haskins, Adam Finn and Stuart McFadyen write about TV and film in relation to Canada’s response to US dominance in international trade. This chapter is an examination of different country’s responses to US dominance with an economic focus. They question trade issues asking if they are merely goods, if the US is dumping and why the US dominates in the trade of cultural industries. The last section of the chapter is about Canadian policy and an assessment of their laws in relation to cultural industries. The next chapter in this part of the book, by Henry Newcomb, questions what happens to a culture when it adopts another culture’s methods of producing, understanding and representing their culture. Newcomb says that only cultural industries and not the culture itself can be protected by trade agreements. He looks at the issues and problems in defining cultural industries and how to protect them. The next chapter also concentrates on TV and more specifically the soap opera within the context of global media. Robert C. Allen begins with a brief history of the soap opera. Allen chooses to focus on the Mexican telenovela and compare it to US soap operas. In his comparison of the telenovela and the soap opera, Allen argues that the telenovela is a stronger product in the international market than the US soap opera.

 

 PART 2
The next section of the book focuses on Mexico and cultural trade and identity.  The first chapter, by Carlos Monsivias, is about Mexican nationalism and how the US cultural industries and presence in Mexico affects the sense of nationalism in the country.  He claims that the cultural identity needs to stem from adaptability of US culture into the Mexican system because the power of the US cannot be denied.  Following this chapter, Nestor Garcia Canclini also writes about the Mexican identity.  Canclini says that there will be multicultural and trans-cultural changes and influence within Mexico and its social and cultural policies.  Jose Carlos Lozano, in his chapter, focuses on the reception of US cultural industries on the Mexican border and their effects on Mexican culture.  This chapter focuses on the people’s response to the opening of Mexico under NAFTA and the effects of US culture on people close to the border.  He shows that there is nationalism and that people often prefer the products of their country.  The last chapter in this section of the book is by Eduardo Barrera and again deals with issues surrounding NAFTA, cultural industries and the US-Mexico border.  He calls the border a laboratory for post modernity.  Barrera does a case study on TV in a barrio to look at the effect of the transmission of cultural industries across the border with results that support Lozano’s arguments.  The next section of the book focuses on Quebec and issues of trade and national identity. The first chapter shows how cultural industries are important to the survival of cultural identity.  Claude Martin writes about how Quebec’s cultural industries are fundamental to the nation, despite their lack of strength when compared to Hollywood.  The next chapter, by Roger De La Garde, is a look at TV in Montreal and the effects of free trade on the industry and community.  This chapter is similar to those on Mexican border studies, in that it demonstrates a demand and a loyalty to local programming as opposed to English or dubbed-US shows.  The following chapter examines best selling books as a representation of Quebec’s support of their authors.  Jacques Lemieux and Denis Saint-Jacques claim that in the ten years of the study, Quebecois authors sold more books than US authors.  The final chapter on Quebec focuses on the music industry.  Line Grenier again demonstrates that the people of Quebec prefer their own music to the US imports.  The final part of the book focuses on copyright and contracts.  The first chapter focuses on issues surrounding the popular music industry in relation to NAFTA.  It explains how music is always changing copyright law and speculates how NAFTA will change to cover new laws and technologies.  The final chapter, by Keith Acheson and Christopher J. Maule, is a broader look at copyright, NAFTA and cultural industries.  They argue that cultural products are becoming more and more prevalent in daily life and they have an effect on the quality of life.  They demonstrate what copyright does and how it interacts with contracts to function in the cultural industries.  This book was very interesting and provided a lot of points of view on NAFTA and how it works in terms of trading cultural commodities.  The authors’ articles were all different but each section came together to demonstrate common themes and sentiments. 

 

    This article deals with peer-to-peer (P2P) sharing and the film industry.  The ninth circuit court ruled in the case of MGM v. Grokster.  The court ruled that some file sharing Internet services are not liable for copyright infringement committed by their users.  This is a big blow to both the music and film industries.  David Bell and Jeffery Sullivan acknowledge this decision as “legally correct,” but they are also aware of its implications for the entertainment industries.  The sellers of copying equipment are not liable for the use of the equipment in copyright infringement, as decided by the Supreme Court in Sony v. Universal.  Since Grokster and Streamcast were found to have substantially legitimate uses, they fell under the precedent set by the Sony case..  Next, MGM tried to prove vicarious copyright infringement through direct infringement by a primary party, direct financial benefit by the defendants and the ability of the defendants to supervise the users.  This was not proven because the relationship between software provider and user is decentralized and the software provider has no obligation to monitor the actions of its users.  This ruling was appealed. The appeal questions if the defendants are responsible for secondary copyright liability because of the large amount of infringement.  Here, Bell and Sullivan explain the standards for secondary liability.   They argue that the court was to narrow in its definitions for knowledge of infringement and contributions to primary infringement.  Next the article deals with pervious rulings on the case and the necessity of proving legitimate uses if one is to use the Sony verdict in its favor.  The article deals with if and how the Supreme Court should address and respond to this case. The next part of the article explains existing legislation.  It states that copyright holders cannot recover loses from secondary copyright infringement.  It also looks at cases of the record industry against Internet Service Providers, noting the protection of software companies and ISPs.   The article looks at the Induce act, which was brought up fro review recently and would make software companies liable for encouraging copyright infringement.  The article shows the pros and cons of this piece of legislation.  Other pieces of legislation brought up in the article are the Piracy Deterrence and Education Act, the Protecting Intellectual Rights Against Theft and Expropriation Act and the Family Entertainment and Copyright Act.  The article concludes with an explanation of the possible effects of the Supreme Court’s decision on the case.
    The article provides a detailed explanation and example of the copyright issues brought up by P2P technology.  There is a good analysis of the case as well as explanations and references to copyright law and how these issues are being dealt with outside of this specific instance.  The language is a little legal at times, but the article is very comprehensive and informative.