By Jonathan Bick

THE AUTHOR IS AN ADJUNCT PROFESSOR OF INTERNET LAW AT PACE LAW SCHOOL AND RUTGERS LAW SCHOOL. HE IS ALSO THE AUTHOR OF 101 THINGS YOU NEED TO KNOW ABOUT INTERNET LAW (RANDOM HOUSE 2000).

For more informaiton regarding this topic please see Digital Millennium Copyright Act Question and Answer

Introduction

The Internet allows copyright holders a myriad of enforcement difficulties and tremendous opportunities. The Internet is infused with the digital technology that allows a copyright owner to make virtually unlimited perfect reproductions of copyrighted material at little or no incremental cost. The Internet enables a copyright owner to easily sell and distribute his or her works by direct digital transmission to the consumer without traditional storage or shipment costs. The same Internet technology also makes it possible for unauthorized users to easily sell and distribute his or her works by direct digital transmission to the consumer without traditional storage or shipment costs, without compensating the copyright owners.

Despite court case to the contrary,[1] many people believe that copyright laws should not apply on the Internet. This fact combined with the fact that the entertainment industry has been slow to develop a model for e-selling or e-licensing authorized copyrighted works has resulted in the general public growing accustomed to the notion of obtaining unauthorized Internet versions of copyrighted works for free.

A New Approach

Until 1998, the Copyright Act was technology neutral. Historically, its various provisions did not regulate commerce products designed to transmit or storing information. Rather, the Copyright Act created exceptions to permit certain conduct that was deemed to be in the greater public interest.[2]

Traditionally, copyright registration has been sought for non-confidential works. Copyright protection provides an inexpensive method to protect expressions of ideas, fixed in a tangible form. The successful registration of a copyright yields its owner the exclusive right to reproduce the work, to distribute copies of the work, to display and perform the work publicly, and to create derivative works. With this set of rights in hand, the copyright holder may authorize others to exploit any of the exclusive rights.

Copyright registration is not required to obtain copyright protections. A copyright right arises the moment a party creates a tangible work. However, copyright registration is necessary to obtain certain benefits of copyright protection, such as bringing an action for copyright infringement. Registration provides other benefits, such as a legal record of who owns the work, its date of creation and the creator. It also allows a copyright holder to pursue statutory damages and attorney's fees. In short, the Copyright Act was primarily concerned with content rather than the communication of content.

In 1998, the Congress took a new approach to protecting copyright holders. This action was taken due to the perceived threats to the rights of copyright owners posed by the Internet. In particular, the Digital Millennium Copyright Act (DMCA),[3] was enacted which added a section to the Copyright Act that, among other things, made trafficking in devices designed to circumvent the various copyright protection technologies unlawful.

To be more specific, Section 1201(a) contains two separate prohibitions. Section 1201(a)(1) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." This sub-section made it unlawful to engage in unauthorized circumvention of technological measures. Section 1201(a)(2), prohibited offering technology[4] that may be used to circumvent technological protections against unauthorized access to copyrighted works.

Each of the prohibitions under Section 1201 is subject to a series of statutory exceptions. To be specific, Congress deemed fair, including reverse engineering, security testing, good faith encryption research and certain uses by nonprofit libraries, archives and educational institutions, as exceptions.

More DMCA Details

In response to the World Intellectual Property Organization (WIPO) Copyright Treaty and Performances and Phonograms Treaty, the DMCA implements statutory changes to the U.S. Copyright Act. The DMCA provides a basis in international law for protecting rights in United States sound recordings that are distributed digitally via computer networks. The DMCA, in addition to granting a minimum term of protection of 50 years after a performance was fixed in a sound recording, also recognizes an author’s exclusive right of distribution and rental of their works to the public.

Section 103 of Title I of the DMCA creates a new Chapter 12 to the U.S. Copyright Act. The new section[5] prohibits the circumvention of copyright protection devices if they have been put in place by the lawful copyright owner in order to control access to a copyrighted work. This section is followed by another new section[6] that contains a similar anti-circumvention provision that prohibits not merely the use of circumvention devices, but the manufacture or making available of technologies, products and services that are intended to be used primarily as a means of defeating access controls and anti-copying devices. Such technologies, products and services are prohibited if they: (1) are designed or produced primarily for the purpose of circumventing access controls or anti-copying devices; (2) have only a limited commercially significant purpose outside of their circumvention functions; or (3) are marketed as technologies, devices or services that are to be used in circumvention.

Title II of the DMCA which is also known as the "Online Copyright Infringement Liability Limitation Act" provides exemptions or "safe harbors" from liability for claims of copyright infringement that arise out of the following activities: (1) routing; (2) caching; (3) storage; and (4) linking. Before the implementation of the DMCA, many of the copyright infringement cases involved a plaintiff suing Internet related service providers.[7] Some courts suggested that Internet related service provider were contributorily liable for copyright infringement.[8]

Title II of the DMCA amended Chapter 5 of Title 17 of the Copyright Act to provide a safe harbor for Internet related service providers from direct, contributory and vicarious copyright infringement liability. In particular the protected party known as the "service provider" is defined in Section 512(k)(1)(A) of the Act. A service provider is any entity "offering the transmission, routing or providing of connections for digital on-line communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the materials as sent or received."

Thus, "hosting a Web site" does not fall within the definition but providing connectivity to a Web site does. The legislative history states that this definition includes, for example, "providing Internet access, e-mail, chat room and Web page hosting services."

According to the act, safe harbors are additions to, rather than substitutes for, the defenses that service providers already possess under law. However, only eligible service provider may invoke a DMCA safe harbor.

To be eligible, a service provider must adopt, reasonably implement and inform its subscribers and account holders of a policy providing for the termination of subscribers and account holders who repeatedly display or transmit infringing material. In addition, to be eligible service providers must accommodate and not interfere with "standard" technical measures used by copyright owners to identify and protect their copyrighted works.

Assuming a service provider satisfies each of the minimal eligibility requirements described above, it will not be liable for monetary damages for the following activities; routing or providing of connections or for the intermediate and temporary storage of material on a system or network.

Another important Section is 512 (b), It is important for three reasons. First, states that service providers implement a procedure for information caching. Second, it suggests that the Internet site owners implement rules concerning the refreshing, reloading or updating of cached copies of their copyrighted materials. Third, Section 512(b) suggests that copyright owners should monitor entities known for caching to ensure compliance with the conditions set forth in Section 512(b).

To take advantage of the DMCA’s limitation on a service provider must designate an agent to receive notifications of alleged infringement. The agent's contact information must be made available through the service provider's service, including the service provider's Web site in a location "accessible to the public." The agent’s contact information must also be register with the Copyright Office.

The act provides a statutory basis for a copyright owner to subpoena a service provider to require it to disclose information regarding alleged infringers. The DMCA also exempts a service provider from liability for removing “infringing” material at a customer’s request, if such action is done good faith.

Interplay Between Legal and Technical Remedies

The Internet allows an unacceptable level of unauthorized distribution of protect copyrighted content.[9] Both technological and legal actions have been taken to address this difficulty. Technology generally known as Digital Rights Management (DRM) systems, [10] seek to prevent piracy of copyrighted works, which are distributed in digital form. As noted above the DMCA was implemented to satisfy treaties[11], which attempt to address the difficulties associated with the e-distribution of unauthorized copyrighted content. In particular, certain provisions of the DMCA are directed at those who create circumvention technology and those who make such technology available.[12]

Technology allows e-publishers to control what e-consumers do with e-product. For example, a digitized book could be protected using special software that doesn't allow it to be read on any device other than that of the person who originally paid for it, meaning the work could never be given away or lent out. Some movies that are available to consumers in digital format do not allow users to jump past the commercials that appear before the movie begins.

U.S. laws protecting great ideas are based on the Constitution, which grants Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Congress promotes the development of innovative products by ensuring that inventors can produce revenue from innovations that are patented and content producers can live on income from copyrighted works.[13]

Copyright law allows people to take small amounts of material from a copyrighted work without payment or permission and use that material in their own work product. This exemption from the Copyright Act is known as the "fair use" rule. One difficulty with the successful use of technology to completely control digital content would be the effective elimination of fair use of e-content.

The Internet is not the first change to upset copyright holders. The publishing industry sued lending libraries, arguing that allowing people to borrow books without paying for them violated copyright law. The film movie industry sued the VCR industry, arguing that the technology would infringe on their copyrighted material by allowing the creation of copies. In each instance, the copyright holders ultimately accommodated the new technology.

The courts have found that it is lawful for consumers to make copies of works they have already purchased and limit such copies to personal use. Since e-books and e-music can be replicated at virtually no cost, e-publishers who distribute such copyrighted works use “lock-up” technology to prevent unlimited copying.

While statue exist to make it illegal for consumers to thwart that protective technology, it is not clear whether such laws are enforceable against a consumer trying to make a copy for personal use.[14] Even so, it is feared that intellectual property holders will use such technology to gut the concept of fair use. It has been argued that it is improper to redefine the parameters of Fair Use depending on the format of the protected work.

To some extent, the DMCA depends upon DRM.[15] In particular, a defendant is only liable for trafficking in a circumvention technology as defined in Section 1201 of the DMCA if (1) the technology is primarily designed to circumvent a copyright protection "technological measure"; (2) the technological measure the defendant circumvented "effectively controls access" to copyrighted works; and (3) defendant "markets" the proscribed technology. So, the DMCA will only available for copyrighted material that uses effective DRM according to the second factor required by Section 1201 of the DMCA.

Access control measures include "password codes," digital watermarks and encryption technologies. The purpose is to protect content from unauthorized copying. Each of these access control measure have something in common, namely each is too complicated, difficult or time consuming to be circumvented by an average user. The DMCA distinguishes between technological actions used by a copyright owner to control initial access to a work and actions that prevent subsequent copying from a lawfully acquired copy.

Case of First Impression

The case of Universal City Studios, Inc. v. Reimerdes,[16] illustrates the application of the DMCA to circumvention technology. In this case of first impression, several major film studios, which distributed their copyrighted motion pictures in digital formats, protected from copying through the use of an encryption system sued under the DMCA, to enjoin defendants from e-distributing de-encryption software. While the court found for the plaintiffs, an appeal has been filed by the defendants have filed briefs focusing on the fair use and other statutory and constitutional issues.

The court in Reimerdes, found the defendant’s argument that the use of a "weak cipher" was did not an "effectively control access" to the copyrighted works to be "indefensible as a matter of law". Section 1201 expressly provides that "a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information or a process or a treatment, the authority of the copyright owner, to gain access to a work." The Appeals Court can easily find that since the function of the technology in question is to control access, weak protection technology fails to "effectively controls access". The court could base its finding on the legislative history of the DMCA, which includes discussion of encryption or scrambling technologies in particular as falling under the anti-circumvention protection of the DMCA.

In improper application of the issue of effective control of access under DMCA @ 1201 may be tantamount erasing one of the three elements the legislature enacted to prevent the abuse of the application of the Act. Under the district court's ruling in Reimerdes, a DRM system need not be technologically robust in order to provide an avenue for legal redress under the DMCA. This aspect of the court's opinion effectively removes the plaintiff’s duty to directly control access as required by the legislature and detailed in the legislative history. The court’s opinion may be used to justify the use of indirect access control,[17] which is clearly outside of the legislative history.

It should be noted that the Court in Reimerdes was careful to limit its holding. Specifically, the court found that its ruling was limited "1) to programs that circumvent access controls to copyrighted works in digital form in circumstances in which 2) there is no other practical means of preventing infringement through use of the programs and 3) the regulation is motivated by a desire to prevent performance of the function for which the programs exist rather than any message they might convey."

The court was concerned with circumstances in which a governmental attempt to regulate the dissemination of computer code would not similarly be justified. While the Court found that "An anti-linking injunction on these facts does no violence to the First Amendment," it also found that "Nor should it chill the activities of Web site operators dealing with different materials, as they may be held liable only on a compelling showing of deliberate evasion of the statute."

Outside the United States

Europe is taking a different approach to e-infringement than the United States. It is trying to tax computers and other kinds of hardware which are capable of e-infringement. It should be noted that Audio Home Recording Act (AHRA),[18] puts a compulsory royalties on digital audio recording equipment, which some find is as burdensome as a tax.

In particular, The AHRA prohibits the importation, manufacture, or distribution of digital audio recording devices unless two requirements are met. First, a digital audio recording device must employ technology that interacts with information associated with the copyright of the files that it plays. Second, any person importing, distributing, or manufacturing a digital audio recording device must pay a two percent royalty for each device sold. This payment must be made to the Register of Copyrights on behalf of the copyright holders. Section 1008 of the AHRA, which exempts certain noncommercial, uses of "digital audio recording devices," and was held not to apply to personal computers.

Summary

The DMCA is a dramatic and novel adaptation of the traditional copyright protection model. The DMCA introduced significant changes to the Copyright Act, in direct response to the Internet’s capability to deliver copyrighted content. These changes were designed to ensure the safe delivery of copyrighted via the Internet.[19] The DMCA necessitated two elementary changes to the Copyright Act. First, it directly prohibited the use of technologies that can be used to circumvent technological protection measures.[20] The novelty of this approach is simply that the protection of copyrighted content was achieved through the regulation of devices. Second, this measure was adopted in conjunction with a list of infringing activities centering on the circumvention of technical protection schemes.

These changes have resulted in single central question: Should the "device regulation" provisions prevail over "privileged use" provisions? This policy issue is most likely to be debated when courts take up the copyright's fair use provision. The courts may also apply the Intellectual Property Clause in Article I, section 8, and the First Amendment to the application of the DMCA.

--------------------------------------------------------------------------------

[1] See UMG Recordings, Inc. v. MP3.Com, Inc. 92 F.Supp.2d 349, 350 (S.D.N.Y. 2000) in which the court found "The complex marvels of cyberspatial communication may create difficult legal issues; but not in this case. Defendant's infringement of plaintiff's copyrights is clear." In this case, several record companies brought suit claiming copyright infringement and the court agreed. The court in entering summary judgment against MP3.com, found the "fair use" defense asserted by the company "indefensible" and rejected the defendant's other affirmative defenses (e.g. copyright misuse).

[2] See Report of the House Committee on Commerce, H.R. Rep. No. 105-551, pt. 2, at 24 (1998).

[3] Pub. L. 105-304 (1998).

[4] The technology may not be offered or disseminated if it meets any one of the three prongs of the statutory standards: (1) is primarily designed or produced for the purpose of circumventing; (2) has only limited commercially significant purpose or use other than to circumvent; or (3) is marketed for use in circumventing.

[5] 1201(a)(1)

[6] 1201(b)

[7] Particularly Web site operators, bulletin board operators and Internet service providers

[8] See Religious Technology Center v. NetCom 907 F. Supp. 1361 (N.D. Cal. 1995).

[9] The Internet allows the transfer of digital versions of copyright works, at little or no cost. Digital file can be duplicated without a loss in quality, in contrast to analog audio and video formats (such as video tapes and audio cassette tapes) where a noticeable degradation in quality may be found when an original is compared to the copy.

[10] Examples of DRM include encryption, watermarking and fingerprinting.

[11] The Digital Millennium Copyright Act, 17 U.S.C @ 1201 et seq. (effective October 2000). It implements two World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty. DMCA civil remedies include temporary and permanent injunctions to prevent violations; willful violations of the anti-circumvention provisions for financial gain may result in criminal liability, including fines and prison terms.

[12] 17 U.S.C. @@ 1203, 1204

[13] See U.S. Const. art. I, 8, cl. 8 (providing that "Congress shall have the power ... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.").

[14] The anti-circumvention provisions of the Digital Millennium Copyright Act may be interpreted to imposes a new kind of liability even in situations of fair use of copyright-protected information. It has been argued that under the anti-circumvention provision, it is illegal to crack a copy protection technology for any reason, including for “fair use”. This interpretation, would make anyone who makes, sells or uses a device that is capable of circumvention, such as a computer, a violator of the DMCA.

[15] Not all DRM systems "control access" directly. Most DRM technology may seek to prevent unauthorized copying and thereby control access directly. However, some DRM technology seeks to track the proliferation of copies and control access indirectly by suing copyright violators.

[16] UNIVERSAL CITY STUDIOS, INC, v. REIMERDES, 111 F. Supp. 2d 294 (UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) August 17, 2000, Decided

[17] Such as through “Watermarking” which is a copy detection scheme that is a bit stream hidden in a digital file that includes copyright information which forms a signature so that when copyright owners search for infringing uses, they can match the signature to detect where the copyrighted work has been used and/ or “Fingerprinting” which is an embed identification of the original customer in a copyrighted file. Both systems result in evidence to be used in an infringement action.

[18]Audio Home Recording Act of 1992, Pub. L. No. 102-563, 2, 106 Stat. 4237 (1992) codified at 17 U.S.C. § 1002(c) (1994).

[19] See Mark Stefik, Shifting the Possible; How Digital Property Rights Challenge Us to Rethink Publishing, 12 Berkeley Tech. L.J. 137 (1997).

[20] See 17 U.S.C.1201(b)(1) (1994 & Supp. 1999).