The DMCA and Digital Rights
Digital technology has freed us from the yoke of traditional content delivery mechanisms in ways we, scant years ago, could never have imagined. No more need we schedule our lives according to the designs of media conglomerates in order to partake of their wares; digital delivery affords us the luxury of entertainment consumption in a manner consistent with our desire.
We may enjoy theatre quality picture and sound in home video performances at our convenience, listen to entire music collections anywhere, anytime on devices so portable as to be viewed essential equipment on any journey whatsoever.
Unfortunately, these new freedoms were bestowed upon a populace ill-equipped to deal with them from a regulatory perspective. Infinitely replicable digital media, when combined with the Internet as a distribution conduit, would lead to some serious consequences once users started putting two and two together. With the advent of Napster, the genie was well and truly out of the bottle, leaving media companies scrambling to lobby government to enact legislation in an attempt to re-establish the former status quo.
While this lobbying activity’s initial intention may well have been restoring the imbalance of power existent in years past, the result has been considerably more empowering for the entertainment industry, especially in the United States.
One of the first pieces of enacted legislation south of the border was the Digital Millennium Copyright Act (DMCA), which among other things makes it illegal to circumvent or enable circumvention by any means, the copy protection mechanisms or encryption technologies built into any product by the original manufacturer. Upon first reading, this sounds fairly innocuous, however the consequences of this provision are far reaching indeed.
In July of 2001 for instance, Dmitry Sklyarov, a 27 year old PhD student researching cryptography at Moscow University and programmer for ElmSoft was attending a security conference in Las Vegas when he was arrested by US authorities and charged under section 1201(b)(1)(A) of the DMCA. Dmitry was thrown in jail and held for three weeks, after which he was released on $50,000 bail with the condition he remain in the United States to face the accusations. He thereafter faced $2,250,000 in fines and up to 25 years in prison should he be found guilty.
What heinous crime had Mr. Sklyarov committed? He participated in the creation of software designed to translate documents coded in Adobe’s eBook format to standard Acrobat PDF files, enabling the user much more freedom over what he could do with the legitimately purchased text. Despite the fact that in most countries this would be characteristic of basic “fair use”, and certainly legal in Russia, the breaking of the encryption itself and disseminating the means for others to do so constituted the crime.
After being forced to spend 5 months in the States, Dmitry cut a deal with the government to testify against his employer at the upcoming trial and was finally allowed to return to Russia.
Another fine example of the DMCA’s misuse may be found in the Linux world. Under the legislation, Linux users were unable to play DVDs on their systems despite having both the required hardware and a legitimate copy of the movie in question as licensed DVD decoders were simply not available for the platform. When software called DeCSS (CSS stands for Content Scrambling System, the encryption mechanism employed on DVDs) was freely released to combat this situation, the DVD Copy Control Association issued over 500 lawsuits in 11 separate nations to shut it down. The DMCA in this instance turned paying customers into criminals.
CSS encryption was so weak however that the code for DeCSS could readily be printed on a t-shirt. When clothing manufacturers actually started doing this, the DVD CCA sued them too. Pursuing legal remedies for years before finally giving up in January of 2004, the entertainment industry in essence acknowledged the situation as futile and moved on to bigger things…
While the above illustrates the DMCA’s ability to be utilized as a blunt instrument by corporations to further their interests (and to Adobe’s credit they withdrew support from the Sklyarov lawsuit once they saw how far the government was willing to take things – though negative press might have had something to do with this fact), it really doesn’t speak to the reasons why media companies might be interested in pursuing these protections in the first place. Certainly they are concerned with piracy, but the larger picture relates to a paradigm shift in consumer rights as pertains to fair use.
When I purchase music for instance, under fair use I should be able to make copies to preserve my ‘property’ should the original become damaged should I not? However, in reality I only own the piece of plastic the music came on in the first place while I license the content.
To enforce this licensing, media companies, hardware and software manufacturers have teamed up (or in the case of conglomerates such as Sony are one and the same) to implement what is known as Digital Rights Management (DRM) which sharply curtail my power in this regard. I am forced into accepting proprietary file formats which do not allow me to transfer the content from one medium to another, tie me to particular technologies and their associated companies, and even often tether me to corporate databases which monitor my media consumption for the purpose of determining how best they might market to my tastes in future.
DRM, under the protection of the DMCA is becoming increasingly ubiquitous and the investigation of it will form the basis of next months article wherein we’ll also examine Canada’s more measured legislative response to the issues raised in the digital realm – much to the chagrin of the United States which has recently compared us to a third world nation as concerns our handling of intellectual property. Until then, why not take a look at “Endangered Gizmos” at www.eff.org/endangered for an entertaining yet thought provoking look at how legislation is stifling innovation.
Sidebar: To find out more about your rights in the digital universe and the efforts being undertaken to protect them, visit the Electronic Freedom Foundation’s website at www.eff.org for some fascinating content on current cases before the courts and issues facing legislators today.