Freedom to Tinker is a blog run by David Robinson, the Associate Director of Princeton's Center for Information Technology Policy. The blog was started by Professor Felten of Princeton, who is quite prominent to my topic as he was the professor who was forced to terminate his research on the vulnerabilities of the Secure Digital Music Initiative becasue of provisions of the DMCA. The post that I am using as a source for my paper was written on October 27, 2008, in light of the ten year anniversary of the Digital Millennium Copyright Act. Robinson, clearly opposed to the anti-circumvention provisions, recalls with condemnation that just ten years ago, "the DMCA's anti-circumvention provisions, which became 17 USC Section 1201, made it a crime under most circumstances to 'circumvent a technological measure that effectively controls access to' a copyrighted work."
Robinson discusses that companies could protect the content that they 'own' by placing arbitrary limitations on one's access to them, and that the federal government made it illegal to circumvent these technologies. Even if it wasn't an infringement of the copyright per se, it still became a felony to access the content, regardless of how easy it may be. In this blog post, Robinson chronicles the procedure of passing the DMCA, and shows that its creators claimed to make the "information superhighway" more appealing to those who might have been hesitant of sharing their intellectual property. Robinson maintains that even ten years after its pass in Congress, the DMCA's anti-circumvention clauses haven't reduced the ability to bypass DRMs.
An argument that Robinson points out, which is often ignored by proponents of the DMCA, is that although the DMCA was intended to meet standards set by the WIPO, those involved in the Clinton administration's efforts to create the DMCA were also essential in creating the WIPO standards. This particular post focuses primarily on the problems with the passing of the legislation, and secondarily on the functions of the act itself.
This blog post is a great supplementary source because it is written by a respected professor who has been in the mix of the debate on the DMCA since its inception. Furthermore, it is important for me to consider the political context in which this bill was passed; this has been lacking in a lot of the scholarly work at which I have looked.
Niva Elkin Koren discusses the shortcomings of the Digital Millennium Copyright Act's anti-circumvention provisions with respect to the protection of consumer's rights in her 2007 article entitled "MAKING ROOM FOR CONSUMERS UNDER THE DMCA". Koren follows a very rigid organization detailing how the relevant legislation diverges from traditional protections awarded to consumers, and how consumers of information have an inherently unique role of being more active than the traditional consumer in their consumption.
Koren begins by showing that legal precedent exists to permit consumers to bypass technological protections on use of products. Specifically, she points to the Lexmark and Chamberlain cases which permit consumers to bypass embedded technologies that 'encrypt' printer cartridges and garage-door openers, respectively. She then shows that the legislative norms of laws governing the consumption of information took a drastic turn with the DCMA, and consumer choice was unprecedentedly limited by the following three facets of the legislation: bans on access to a work by circumvention, bans on trafficking of devices that circumvent, and bans on manufacturing and distributing devices designed to circumvent access control. Koren continues that the DMCA, an act initially intended to deter piracy, became a way to disenfranchise consumers. Koren suggests that legislation should adhere to a simple test with regards to its protection of consumer rights: the rights of readers and listeners to interact with copyrighted works should be adjusted to accommodate parallel uses made possible by new technologies. (9) The anti-circumvention provisions of the DMCA show an inherent misunderstanding and underestimation of the role of consumers with regards to information. Koren points out that with the fair use doctrine, consumers are not only 'consumer-shoppers', but also 'consumer-authors' and 'consumer-participants', and that the latter two groups should have the ability to interact with the materials which they purchase. Digital consumption differs from traditional consumption in the sense that it involves the intangible element of actually using information. Consumers are inherently chastised as being unproductive and passive; but, in the case of consumers of information, they are much of a part of the reason that copyrights should be protected. Consumers interact with material to promote science and art, the original intention for establishing copyright law in the first place.
My aim is to study the underlying economic impacts of the DMCA anti-circumvention provisions, and Koren's piece drives to the heart of the notion that the DMCA does not fairly adjudicate the role of consumers in the digital age. Koren's thoroughly detailed analysis of digital consumer theory, as well as the blatant discrepancies in the legal protection of consumers provides an excellent source to show that the authors of the DMCA inadequately took into account the impact of the legislation upon consumption, upon the fast-growing I.T. industry, and upon general legal consistency.
tagged anti-circumvention consumer_rights consumers_in_the_digital_age by bradleyc ...on 24-NOV-08
Pamela Samuelson argues, in her work "INTELLECTUAL PROPERTY AND THE DIGITAL ECONOMY: WHY THE ANTI-CIRCUMVENTION REGULATIONS NEED TO BE REVISED" (1999), that the Digital Millennium Copyright Act's anti-circumvention clauses exceed the scope of obtaining legislative consistency with the copyright treaty of the World Intellectual Property Organization and fails to fairly represent the interests of the "innovative information technology sector or of the public" (16). Samuelson's work, published in the Berkley Technology Law Journal [Vol. 14:1] details the ways in which the United States Congress overreached in establishing anti-circumvention provisions, and provides a corollary argument of how such device protecting provisions are economically ineffective, and demonstrate Congress' lack of understanding of I.T. products.
Samuelson contextualizes her argument by stating that the initial intention for the Digital Millennium Copyright Act was for the United States to demonstrate that it adequately protects copyright owners with regards to the standards set by WIPO's copyright treaty. Samuelson makes a compelling argument that the body of United States statutes, common law precedents, and market driven IT sector prove that the U.S. had a reasonable claim to have already met WIPO standards before passing the Digital Millennium Copyright Act. Samuelson says that the legislation should be "predictable, minimalist, consistent and simple"; however, the anti-circumvention provisions in the DMCA are overbearing and complex. They are very detrimental to the IT sector of the U.S. economy (which comprised 8.2% of the U.S.'s GDP in 1999), and debilitates individuals from protecting copyrights from infringement in encrypted works, and limits one's ability to protect privacy and promote the public interest.
I find this work particularly useful because Samuelson portrays the DMCA as an example of over-regulation that limits innovation and is unnecessary. This work helps to show that Congress was patronizing the high rhetoric and deep pockets of Hollywood at the expense of the flow of information and technological innovation.
In the 1999 case Sony Computer Entertainment America, Inc. v. Gamemasters, Sony sought a preliminary injunction on Gamemasters’ distribution of accessories for the Sony Playstation game console. Sony alleged that Gamemasters violated anti-circumvention regulations of the Digital Millennium Copyright Act (DMCA) as well as state and federal unfair competition laws. Gamemasters, a retail store in California, was sued for selling a game enhancing device. The court granted the injunction and essentially eliminated all sales of such devices by Gamemasters.
This external device performed two primary functions when plugged into the Playstation game console. First, the game enhancer allowed users to temporarily modify aspects of the game, similar to the Game Genie, manufactured by Galoob Toys for use on the Nintendo. Nintendo v. Galoob Toys, as decided in 1992, declared that the Game Genie was not in violation of copyright laws as it was not a derivative work of the Nintendo console and the Game Genie was a fair use of the Nintendo game system. Second, and most importantly, this game enhancer permitted players to play Playstation games sold in Japan or Europe which were intended by Sony for exclusive use on Japanese or European consoles. The game discs contain electronic check codes which are checked by the console when inserted. Discs with codes that do not match the region in which the console operated were rejected. The game enhancer overrode this protection.
By invoking the DMCA, Sony stopped the use of potential copyright and trademark violating technologies. However, critics of the DMCA noted that this decision also allowed Sony to continue its controversial business practice. Sony divided its game distribution and operations into separate international regions. By disabling games from one region to be played in another, authentic Sony Playstation games played in one part of the world suddenly became illegal versions after crossing borders. With increasing video game products offering multiplayer and global competition, these restraints pose legitimate threats for the future of fair gaming, especially online games. Such restrictions enabled Sony to protect its anti-competitive business model and possibly promote price discrimination between different areas of the world.
This article is a good example of how the DMCA can be manipulated in a very effective manner. The DMCA is a tool that creates a new business model of monopolization, and this article is evidence of that. The court cases show how the courts have not ruled on the DMCA itself, they have only applied it to situations. The paper outlines how to avoid loopholes and make your business plan sound under the DMCA in order to create a monopoly. The DMCA has clearly created a new way of doing and controlling business that is contrary to the original intentions of copyright law.
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.
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 article is important in defining the anti-circumvention and safe harbor parts of the DMCA. It helps provide an understanding to laws that are very complicated in their wording. It also shows legal challenges to the DMCA. The Lexmark case is an example of a hardware company using software to try and monopolize its segment of the industry. Lexmark would profit greatly if its cartridges were the only ones that could be used with its printers. The court, however, stopped Lexmark by ruling that its program was not covered under the DMCA because it left other avenues to accessing its software open. A company tried to use the DMCA as a way to profit in an aftermarket, using copyright law to profit rather than the reasons the law was created, and was stopped by the courts. I will use this article not only as background information for my paper as well as an example of how the courts have to regulate companies so they do not exploit the DMCA and copyright in order to monopolize a market.