The Digital Millennium Copyright
Act (DMCA), enacted in late 1998, modified the US Copyright Law
in several ways, two of which are especially relevant to our discussion
here:
Title II, the "Online Copyright
Infringement Liability Limitation Act," creates limitations
on the liability of online service providers for copyright infringement
when engaging in certain types of activities.
Title I of the DMCA implemented
provisions relating to World Intellectual Property Organization
(WIPO) treaties signed in 1996 (as part of the Uruguay Round of
GATT negotiations). These provisions established two new prohibitions
under Federal Copyright Law -- one on circumvention of technological
measures used by copyright owners to protect their works and one
on tampering with copyright management information -- and adds
civil remedies and criminal penalties for violating the prohibitions.
(This portion of the DMCA is called the "WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998".)
Of the two provisions, the anti-circumvention provisions
have been extremely controversial. In part because of this, the
limitations on liability provisions have gone relatively unnoticed.
Yet, as we'll see below, these sections of the statute are quite
important in a number of ways.
We'll consider these provisions in turn, and review
their impact on eCommerce.
Limitations on Liability for Online
Service Providers
In preparation for our discussion,
read the following:
17
U.S.C. § 512 (2001)
Hendrickson
v eBay, Inc., 2001 US Dist. LEXIS 14420 (C.D. Cal. Sept. 4,
2001) [pdf, 40 kb, edited]
eBay,
Verified Rights Owner (VeRO) ProgramTM: Protecting Intellectual
Property (2001)
Consider the following:
Why do you think that Congress passed the "safe
harbor" provisions of the DMCA? What problem were they trying
to address?
How do the "safe harbor" provisions
work -- what is the order of activity? What happens if the service
provider fails to seek the safe harbor? (Do you think many providers
will do this?)
The Hendrickson case considers the scope of the
"notice" that must be given to trigger the takedown
provisions. Do you think the court got it right? As a matter of
law? As a matter of policy?
Should we be concerned about the safe harbor provisions?
Can it be moused by either the content owners or the providers?
Anti-Circumvention and Anti-Tampering
Measures
Broadly speaking, this portion
of the DMCA makes persons who circumvent "copyright management systems"
("CMS") (i.e., the "trusted systems" we discussed earlier in the
course), create "devices" which circumvent CMS, or distribute devices
which circumvent CMS, subject to criminal and civil liability.
As an initial matter, one might
wonder why such an important (and expansive) set of new prohibitions
was enacted as a part of an international treaty, rather than being
brought through the normal course of Federal Legislation. Why do
you think this was the case?
In preparation for our discussion,
read the following:
17
U.S.C. § 1201 (2001) (anti-circumvention)
17
U.S.C. § 1202 (2001) (anti-tampering)
Universal
City Studios v. Reimerdes, 55 U.S.P.Q.2D 1873 (S.D.N.Y. 2000)
[pdf, 32 kb, edited]
Pamela
Samuelson, Anticircumvention Rules: Threat to Science,
293 Science 2029 (Sept. 14, 2001) [pdf, 80 kb]
Roger
Parloff, Free Dmitry? Spare Me.: Why the FBI Was Right to Arrest
the Internet's Latest Martyr, Inside, August 1, 2001.
[pdf, 20 kb]
Consider the following:
1. Fair Use and Anticircumvention. One of
the most significant holdings in the Reimerdes case is the denial
of a "fair use" justification for circumvention. Do you
think the Reimerdes court got it right on this holding? As a matter
of the law? Policy? That is, should fair use be a justification
for circumvention?
2. Free Speech and Anticircumvention. As
can be seen in the discussion above, one avenue of challenge to
the DMCA Anticircumvention provisions is the suggestion that they
interfere with free speech. Because much of this question involves
matters of First Amendment theory beyond the scope of this course,
we'll only touch on it briefly in our discussion. Note, however,
that the 2nd Circuit, after oral argument on the Reimerdes
appeal, requested that the parties file supplemental papers discussing
the following questions:
ORDER
The panel modifies the oral instruction
for supplemental letter briefs in the captioned case, given
at the close of the argument on May 1, 2001, by authorizing
the parties and the Intervenor to augment their responses to
no more than 25 pages, and inviting responses to the following
questions:
1. Are the anti-trafficking provisions
of the Digital Millennium Copyright Act content-neutral? See
111 F. Supp., 2d 294, 328-29 (S.D.N.Y. 2000).
2. Does DeCSS have both speech and non-speech elements?
3. Does the dissemination of DeCSS have both speech and non-speech
elements?
4. Does the use of DeCSS to decrypt an encrypted DVD have both
speech and non-speech elements?
5. Does the existence of non-speech elements, along with speech
elements, in an activity sought to be regulated alone justify
intermediate level scrutiny?
6. If DeCSS or its dissemination or its use to decrypt has both
speech and non-speech elements and is not subject to intermediate
level scrutiny simply because of the non-speech elements, is
intermediate level scrutiny appropriate because of the close
causal link between dissemination of DeCSS and its improper
use? See 111 F. Supp. 2d at 331-32.
7. If the District Court is correct that the dissemination of
DeCSS "carries very substantial risk of imminent harm"
111 F. Supp. 2d at 332, does that risk alone justify the injunction?
In other words, does that risk satisfy the requirements for
regulating speech under Brandenburg v. Ohio, 395 U.S. 444 (1969),
thereby rendering unnecessary an inquiry as to whether non-speech
elements of DeCSS or its dissemination or its use (if such exists)
may be regulated under United States v. O'Brien, 391 US 367
(1968)?
8. Are the three criteria identified at 111 P. Supp. 2d 333
the correct criteria for determining the validity, under intermediate
level scrutiny, of the use of DeCSS that has been enjoined?
9. If not, what modification or supplementation would be required
to conform to First Amendment requirements?
10. Are the three criteria identified in 111 F. Supp. 2d 341
and the "clear and convincing evidence" standard the
correct criteria and the correct standard of proof for testing
the validity of the injunction's prohibition of posting on the
defendant's website and of linking?
11. If not, what modification or supplementation would be required
to conform to First Amendment requirements?
3. The Case For Anticircumvention Prohibitions.
Although the view supporting the DMCA Anticircumvention provisions
is not well represented in either the media or the legal commentary,
there are at least two significant arguments in favor of these
laws:
a. Price Discrimination. Under this theory,
we should view the sorts of "trusted systems" that
the Anticircumvention provisions support as a social benefit.
Copyright law extends to content creators a limited monopoly;
under traditional economic theory, the social costs of monopoly
can be diminished by price discrimination (charging individuals
according to their reserve price, rather than a fixed-rate for
all users). In the era of digital goods, price discrimination
becomes even harder (and perhaps more important, as works get
more broadly distributed) -- the ability to widely disseminate
a digital work means that content owners will have to factor-in
the costs of this distribution when selling the work itself,
thereby raising the costs of the work for all involved. In a
world where trusted systems are extant and legally supported,
content owners will sell works much more cheaply, thereby increasing
the distribution.
b. The "Arms Race" Theory.
Under this theory, the Anticircumvention provisions are socially
beneficial because they reduce or eliminate the costs of continuing
a technological "arms race" between content owners
and copiers / pirates. This argument recognizes that the content
owners have the ability to create ever-stonger trusted systems,
and these efforts will be met with ever-greater attempts to
create software that will circumvent these systems. This race
has the potential to be endless, and will certainly be costly.
By resolving the 'race' in favor of the content creators, Congress
has greatly reduces the social costs of digital distribution.
What do you think of these theories?
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