by Edward Samuels

17 NO. 1 Cable TV & New Media L. & Fin. 1, March, 1999

Copyright 1999 Leader Publications, a division of The New York Law Publishing Company; Edward Samuels

       The Digital Millennium Copyright Act ("the DMCA") was signed into law on October 28, 1998. It is, without a doubt, the most technical, convoluted, difficult piece of legislation in the 210 year history of copyright in this country. It makes the earlier cable compulsory license of section 111 look like a walk in the park. Printed out, the DMCA is over sixty pages long, tightly packed and single spaced. It will probably increase the length of the Copyright Act by about a third.

       The DMCA was designed primarily to address the complex issues of copyright on the Internet, or generally in an age of digital information. In this article, I'll focus on the two primary sections of the Act. Title 1 (discussed in Part 1 of the article) is designed to implement two treaties negotiated in December 1996 by the World Intellectual Property Organization. The primary thrust of these treaties and the Act is not copyright per se, but the creation of parallel laws that enhance technological measures for protecting copyrighted works and the integrity of copyright management information (to be explained at more length below). Title 2 of the Act (discussed in Part 2 of this article, in the next issue, along with several other provisions of the new statute) governs the copyright liability of Internet Service Providers, generally granting them immunity from the infringing activities of their subscribers, but in exchange for specific measures that also protect copyright owners whose works are copied over the Internet. In general, an excellent summary (only seventeen pages long) of the amendment is published by the Copyright Office, and can be downloaded from the Copyright Office website on the Internet, at http://lcweb.loc.gov/copyright.

The Road to Enactment

       How did the Digital Millennium Copyright Act (hereinafter "DMCA") become so technical, even obtuse? It didn't start out that way. The first clear articulation of policy came in the form of a White Paper by the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force (issued in draft form in 1994, and in final form in 1995). The Working Group--headed by Ronald Brown, Secretary of Commerce, and Bruce Lehman, the Commissioner of Patents--argued that, while copyright protection for creative works on the National Information Infrastructure was necessary if the National Information Infrastructure (hereinafter roughly equated with the Internet) was to develop to its full potential, relatively few amendments were required to the existing copyright law. The basic principles of copyright, it was argued, covered most of the major problems. Indeed, over half of the massive report was basically a copyright primer, demonstrating how the existing copyright structure was up to the task of governing copyright on the Internet.

       The Working Group did recommend several amendments to bolster copyright. But the proposals, at least as characterized by the Working Group, were for relatively modest adjustments in a law that was for the most part already in place. As concluded by the Working Group

       With no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights--and limitations on those rights--to promote the progress of science and the useful arts. Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology.
. . .
The coat is getting a little tight. There is no need for a new one, but the old one needs a few alterations.

Other parties, however, did not see the Working Group's proposals as modest ones. For example, the Internet Service Providers were alarmed at the stance taken by the Working Group that they could be held liable under existing principles of contributory copyright infringement. Other scholars and some users of the Internet also opposed what they saw as attempts to expand, rather than merely clarify, the role of copyright on the Internet. In any event, the proposal that was supposed to be modest got bogged down in a Congress that was getting conflicting signals from important constituencies.

       The debate quickly shifted into an international forum. The administration was instrumental in getting the issue addressed by the World Intellectual Property Organization (hereinafter "WIPO"). Cynics would claim that the administration simply chose to take the tough Internet issues to the international forum in order to do an end-run around Congress, which was not buying the administration proposals. Cynicism aside, it made a lot of sense to address the issues internationally because the problem was an international one, and our major trading partners were as eager for a resolution of the problems as was the United States.

       The net result was that WIPO acted more quickly than Congress, and in December 1996 adopted two treaties clarifying copyright on the Internet. The United States, which signed the new treaties, took the position that our own laws were in compliance with most of our obligations under the treaties, and that only relatively minor amendments would be required to our law in order to bring it into compliance with the new international standards. So the administration went back to Congress, this time asking for ratification of the international treaties, and for what was described as modest implementing legislation.

       Here are the relevant Articles from the WIPO treaties. (Virtually identical language appears in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.) I quote them here because they are relatively short and to the point, and illustrate how straightforwardly the issue can be covered:

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 works, which are not authorized by the authors concerned or permitted by law.

Obligations concerning Rights Management Information

(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing or, with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by the Treaty or the Berne Convention:

       (i) to remove or alter any electronic rights management information without authority;

       (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in the Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

Copyright Protection Systems and Copyright Management Information

       The Working Group had identified several technologies that were capable of protecting works on the Internet. For example, certain encryption techniques can provide for the "scrambling" of information--particularly copyrighted information, such as images, sounds, or computer programs--so that it may be decoded only by authorized users. Such encryption techniques assure that the information is kept secure against anyone who might otherwise obtain access to the information as it is forwarded from computer to computer over the Internet. In addition, the encryption information can be used to control who has access to the information, and under what circumstances.

       In addition to systems that control access, there are other systems that allow anyone to access files, but embed special information in the files. For example, digital "signatures" can be used to authenticate that a particular file was sent by the proper sender, and has not been altered. Or authors might include their works in "electronic envelopes" that contain copyright management information about authorship, copyright ownership, date of creation, and terms and conditions of authorized uses. A related system is digital "watermarking," that incorporates into a file identifying information that cannot easily be dissociated from the file. Using robots or spiders on the Internet, a copyright owner or organization can search for infringing uses of works incorporating the particular watermark.

       All such systems for protecting or allowing the detection of copyrighted works in digital form, primarily on the Internet, would be pointless if users simply unlocked the locked files or stripped the relevant codes. The purpose of the WIPO treaties and the implementing legislation is to grant protection to these self-help technological means of "scrambling" or encoding copyrighted works, or attaching identifying copyright information. The new provisions don't grant copyright protection to any additional forms of works: they simply make it illegal for users to try to circumvent copyright protection systems and copyright management information systems that are being developed by private industry. The DMCA addresses both the accessing of encoded works and the making of copies of encoded works (with separate provisions that make complicated distinctions between activities designed to control access and activities designed to control copying).

       The relevant provisions of the Act are set forth in a new chapter of the copyright law, Chapter 12, which is technically separate from the rest of the statute. That is, the chapter has its own civil and criminal remedies, apart from the pre-existing provisions governing copyright generally. And the potential criminal penalties are high: anyone who violates the rights in copyright protection or copyright management information systems "willfully and for purposes of commercial advantage or private financial gain" can be fined up to $500,000 and imprisoned for up to five years for the first offense! For subsequent offenses, the penalties double. My advice: whatever your attitude toward the appropriateness of the law, just don't do this!

       However, on the road to enactment, Congress attached dozens of elaborate definitions, clarifications, exceptions, and exceptions to exceptions, to cover law enforcement, intelligence, and other government activities; authorized encryption research and security testing; and certain "reverse engineering" to allow minor modifications in order to make computer programs run on particular systems or to assure "interoperability" with other programs, or to allow the alteration of "personally identifying information" about the user. Under the new law, libraries will be allowed to circumvent systems in order to determine whether they want to make the copies to which they are entitled under section 108 of the Act.

       Once Congress got started on the list of exceptions, they apparently began to worry that there were some exceptions that should be in the statute that they had not yet imagined. So they set up a novel mechanism under which the Librarian of Congress will periodically hold hearings to determine if there are other "classes of works" that might be "adversely affected" by virtue of the protections provided in the statute. The Librarian will then have the authority to carve out new exceptions! Congress even provided a two-year grace period on enforcement of certain parts of the statute, postponing actions against violators until the year 2000, to give the Librarian sufficient time to review the first set of proposed exceptions. (However, the sections that prevent the sale of machines or programs that circumvent copyright protection and copyright management information systems go into effect immediately.)

       Another feature of the DMCA is the requirement that manufacturers of VCR's assure that their machines recognize and abide by copyright protection systems on certain video broadcasts and pre-recorded video tapes and disks. Effective for machines manufactured more than eighteen months after enactment of the statute, these systems will allow manufacturers of prerecorded video tapes and disks, or broadcasters of transmissions designed for a limited audience (such as cable and satellite systems) to scramble their signals in such a way that video recorders will not be able to override the protection schemes. It's now up to the owners of copyright to determine whether or not to include the protection schemes. My suspicion is that sellers of prerecorded video tapes and movies might very well opt for the encoding schemes. However, I expect that providers of cable and satellite programming will learn that many subscribers to their specialized services will simply not stand for encoding of such programs to prevent copying, and cancel their services if they are not able to videotape the programming. It's now up to the marketplace to determine what encoding schemes will be workable. (The Act does at least prevent broadcasters from encoding programs generally made available to the public without charge, or as part of basic or extended basic tier cable service.)

[Continued in Net Copyright: Limiting Liability of Online Service Providers]

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