From: Joseph Lorenzo Hall <jhall@xxxxxxxxxxxxxxxxx>
http://www.eff.org/IP/DRM/DMCA/20031003_unintended_cons.php
http://www.eff.org/IP/DRM/DMCA/20031003_dmca_unintended_cons.pdf
Unintended Consequences: Five Years under the DMCA
October 4, 2003
1. Executive Summary
Since they were enacted in 1998, the anti-circumvention provisions of
the Digital Millennium Copyright Act (DMCA), codified in section 1201
of the Copyright Act, have not been used as Congress envisioned.
Congress meant to stop copyright pirates from defeating anti-piracy
protections added to copyrighted works, and to ban black box devices
intended for that purpose.[1]
In practice, the anti-circumvention provisions have been used to
stifle a wide array of legitimate activities, rather than to stop
copyright piracy. As a result, the DMCA has developed into a serious
threat to several important public policy priorities:
Section 1201 Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to
stifle free speech and scientific research. The lawsuit against 2600
magazine, threats against Princeton Professor Edward Feltens team of
researchers, and prosecution of Russian programmer Dmitry Sklyarov
have chilled the legitimate activities of journalists, publishers,
scientists, students, programmers, and members of the public.
Section 1201 Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools
that can be used for circumvention, section 1201 grants to copyright
owners the power to unilaterally eliminate the publics fair use
rights. Already, the music industry has begun deploying copy-protected
CDs that promise to curtail consumers ability to make legitimate,
personal copies of music they have purchased.
Section 1201 Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners have wielded
the DMCA to hinder their legitimate competitors. For example, Sony has
invoked section 1201 to protect its monopoly on Playstation video game
consoles, as well as their regionalization system limiting users in
one country from playing games legitimately purchased in another.
Section 1201 Becomes All-Purpose Ban on Access To Computer Networks
Further, section 1201 has been misused as a new general-purpose
prohibition on computer network access which, unlike the several
federal anti-hacking statutes that already protect computer network
owners from unauthorized intrusions, lacks any financial harm
threshold. Disgruntled ex-employer Pearl Investments use of the DMCA
against a contract programmer who connected to the companys computer
system through a password-protected Virtual Private Network
illustrates the potential for unscrupulous persons to misuse the DMCA
to achieve what would not be possible under existing computer access
regulation regimes.
This document collects a number of reported cases where the
anti-circumvention provisions of the DMCA have been invoked not
against pirates, but against consumers, scientists, and legitimate
competitors. It will be updated from time to time as additional cases
come to light. The latest version can always be obtained at
www.eff.org.