Inadequacies of the DMCA in regards to DVD and Digital Media
As a father of young children, I enjoy buying movies for my children, obviously expecting for them to be able to watch them for years. Unfortunately, children scratch DVD’s and when I looked for a way to copy them so they don’t ruin the originals, I found out that it is illegal to circumvent copy protection software to make copies of the movies. It was not like I was making copies of a rented movie and taking them back to the store, I just wanted to make back-ups to be able to save the original.
After doing some more research I found out that the Digital Millennium Copyright Act (DMCA) makes it illegal for anybody, whether it is users, or software developers, to circumvent copyright protection. The DMCA has put way too much power with the companies that hold the copyrights to various things. There needs to be a compromise between the end users and the manufacturers/copyright holders.
The Digital Millennium Copyright Act of 1998 is a prominent copyright law in the United States that “implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.” (Copyright, 1998) Basically, it made it illegal for copyright protection and Digital Rights Management to be circumvented, whether that is by software or hardware means. This meant that the popular programs that allowed users to copy their DVD’s, whether it be for legitimate purposes such as backing up their owned property or pirating DVD’s that were not theirs, were now illegal. The DMCA is compromised of 5 different title’s affecting many copyright themes, from Digital media and liability of Internet Service Providers to the design of boat hulls. For the purposes of the rest of this paper, we will only deal with the parts that deal with Copyright protection in regards to DVD’s and digital media.
There are exceptions to the circumvention of the copyright protection methods, but those are all mostly for archival purposes, so that libraries and other institutions can make archival copies of media for preservation.
Some of the major criticism of the DMCA focuses on the fact that it does not make it illegal to make copies of copyrighted material, it makes it illegal to design and implement tools that allow uses to circumvent the copy protection. It’s a catch-22 that has many in a quandary; I can copy movies legally, but the tools to copy them are illegal.
The DMCA targets piracy because it is a valuable tool in preventing piracy and is useful because it gives developers a legal stance on which to prosecute individuals who pirate their copyrighted material. Many pirates will rip movies off the DVD’s by using programs that crack the encryption put on the DVD by the developer. Most of the programs used in the past, such as DVD Decrypter, DVD X Copy, and others have been out of business due to cease and desist letters from companies citing the DMCA. There are new programs that occasionally come out, but they normally do not last very long because of the active pursuit of those who violate the DMCA.
By targeting these software developers who make the programs, the DMCA is attempting to keep piracy down. Unfortunately, for those of us who just want to make copies of something we bought, we can’t do that legally. A good deal of the piracy that goes on today is done over the internet and peer-to-peer sharing programs. Most of the movies that can be found on there are not copies of retail DVD’s but bootlegs made with camera’s in movie theatres and copies of the movies that are not yet complete. They will be covered with time stamps and lacking in special effects, only useful for diehard fanatics that can’t wait to see a movie people in the movie industry that are just trying to provide rough copies of the films for working use.
The DMCA isn’t targeting the pirates, it’s targeting the end-users who buy the movies in the stores and want to make copies of them to preserve them. Most users have no desire to “rip” a movie off of a DVD and distribute it on the internet or on some street corner; they just want to make a copy so the original will not get damaged by accidents, carelessness, and little children.
Furthermore, the DMCA is stifling work on encryption and decryption work. Security experts routinely attempt to break encryption, not to bypass, but to learn how it works and improve upon it in order to build better encryption. Unfortunately, some of those experts are meeting legal consequences for their innocent actions. A Russian expert gave a presentation that highlighted how to bypass encryption used in some of Adobe’s products. His work wasn’t meant to do anything illegal, it was just meant to enable Adobe’s products to be used on other eBook readers and to allow users in countries where it is legal to make back-up copies a means to do that. (Lemos, 2001) The Security expert was subsequently arrested and faced 5 years in prison and $500,000 in fines for his work. Another example deals with a professor from Princeton University, who met a legal wall when he attempted to discuss his findings regarding a new encryption standard set forth by the Secure Digital Music Initiative (SDMI). The SDMI announced a hacking challenge that asked teams to attempt to circumvent a new technology they were contemplating putting in place. The professor was able to crack the new technology and attempted to publish his findings about what he did; not in an effort to enhance piracy, but to showcase how they could be bypassed, in an effort to show where area’s could be improved. He was warned by the SDMI that he would be in violation of copyright laws if he published his findings. The professor was not some hacker attempting to pirate movies or songs, he was a respected college professor working in his field of expertise, and yet he couldn’t publish what he had done, because of copyright laws.
An additional possible negative consequence is that by making it illegal to even attempt to circumvent the copy protection, it allows the developers to put whatever they want on the software, just as Sony did when they put rootkits on some of their audio CD’s. In this day and age when plenty of people watch DVD’s on their computers and use their Media Center PC’s that are connected to the internet, who knows what the developers are capable of putting on their discs, things which we will never know are there because it is illegal to even attempt to look at what is hiding behind the encryption. I agree that copyright protection is a useful tool, but the Roman poet Juvenal said it best when he said “Quis custodiet ipsos custodes?” or “Who will ward the warders?” (Ramsay, 1999) or “who will watch the watchmen?” If the copy protection software is the watchman, who will watch it?
The purpose of the DMCA is “To protect copyright owners from infringement, to protect service providers from expanding liability risks, and to provide additional guidance to the general public.” (Cranman, 2000)
Basically, it is put forth to protect the developers rights to their products and media and the keep Internet Service Providers (ISP) from being liable for things that are hosted on their servers. Through these goals, the DMCA hopes to cut down on piracy, whether that be from illegal copying of DVD’s, to offering copies of the media on websites, and even cut down on the posting of copyrighted material onto websites like YouTube!.
Consumers want to be able to legally protect their investments when they purchase things such as DVD’s and CD’s. The items they buy cost money, sometimes significant amounts, that they don’t want to see go to waste with a simple scratch or overzealous child who is excited to watch the newest DVD in their collection.
There are multiple ways to reach a compromise between the consumers and the developers. They range from totally going against one or the other party to finding the middle ground that they can both be happy with.
The DMCA could be completely abolished and allow consumers to do anything they want with the DVD’s they purchase, with whatever software that developers can devise. Unfortunately, that will make the developers of the DVD’s unhappy because they are being denied their rights to their products.
If prices were to drop on DVD’s, then people would most likely not feel so inclined to protect their investments because the investment isn’t so great anymore. If a child scratches a disc, just go buy a new one without a big hit to the pocketbook.
Another idea is to allow users to download the movies to their computers, just as many videogame companies are doing with services such as Valve’s Steam. Including a one-time use code that allows the consumer to register their purchase and make available downloads for their movies would allow them to make copies of their DVD’s and save them to a hard drive. There are companies that sell media hard drives that hook directly up to a TV, allowing the consumer to watch the movies from the hard drive while protecting the original disc from damage.
Some of the possible outcomes of the DMCA are being seen all the time. Paramount Studios has sued a company, Load n’ Go, that sells DVD’s and iPod’s that are capable of playing video. Load n’ Go would load the movies onto the iPod for the customers who purchased both the DVD and the iPod. Nothing was being stolen or pirated, they were just making it convenient for the consumers to watch their movies wherever they choose, whether that be at home on a DVD or on their iPod while on the road. Load n’ Go claimed that what they were doing was covered under fair-use. (Von Lohmann, 2006) Fair Use is the term that describes the basic rights that anybody has to something they have purchased. Fair use, as defined under the Title 17 of the US Code is:
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)The nature of the copyrighted work
(3)The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)The effect of the use upon the potential market for or value of the copyrighted work. (Copyright, 2006
The last factor in determining fair use is significant because what Load n’ Go was doing was not effecting the potential market value of the DVD’s. The DVD’s was still being sold and it was also being loaded onto a portable media device for viewing anywhere. Unfortunately, Load n’ Go was being sued because they bypassed the copy protection in place on the DVD’s.
Fair Use was never put into play because, while Fair Use is legal, the DMCA nullifies it because it made it illegal to bypass copy protection, not matter the reason unless it is for encryption studies. Even encryption studies are a grey area, as can be seen earlier about the Russian security expert who arrested for bypassing encryption.
This is just one example of the many problems with the DMCA. While it doesn’t override other copyright laws, it inhibits the consumers’ rights that are given in other areas of United States law. The DMCA has the appearance of something that was cobbled together from other laws and ideas from groups such as the movie studio’s and Hollywood on what they think their rights should be, regardless of how it effects the consumers that they sell their products to. The DMCA needs to be scrapped completely and started over, amended to clarify such as issues as Fair Use and copyright protection, or combined with other laws that fall under Title 17 of the U.S. Code so that there is no grey area that consumers can unknowingly get in trouble for.
In the end, the choice comes down to the consumer on what they are to do. The DMCA explicitly prohibits the circumvention of copyright protection, unless it is being used by an institution similar to a library or archival society, or for studies of encryption. Title 17 of the U.S. Code specifies what Fair Use is and making back-up copies of DVD’s for personal use is covered under that. So, it’s up to the consumer to decide what they will do. I am not condoning violating U.S. law but steps have to be taken to preserve the rights that have been given to American’s in regards to the products that they buy. For the most part, most of the lawsuits involving the making of back-up copies has involved the companies that have developed the software to circumvent the copy protection, but that doesn’t mean that in the future, if changes are not brought about, that the consumer will not be targeted in the lawsuits involving making back-up copies of movies they own.
Bibliography:
Focus World, p120. Retrieved September 30, 2007, from Academic Search Premier. http://ezproxy.umuc.edu/login?url=http://search.ebscohost.com/login.asp
Cranman, K (2000, Feb 2). Overview of the Digital Millennium Copyright Act. Retrieved October 20, 2007, from ASU Office of General Counsel Web site: http://www.asu.edu/counsel/brief/dig.htm
Lemos, R (2001, July 17). Russian crypto expert arrested at DefCon. Retrieved October 19, 2007, from CNET News Web site: http://www.news.com/2100-1001-270082.html
Mossberg, W. (2007, March 22). Congress Must Make Clear Copyright Laws To Protect Consumers. Wall Street Journal (Eastern Edition), p. B.1. Retrieved September 30, 2007, from ABI/INFORM Global database. (Document ID: 1240290431
Ramsay, G (1999). Juvenal: Satire VI. Retrieved October 20, 2007 from Ancient History Sourcebook Web site: http://www.fordham.edu/halsall/ancient/juvenal-satvi.html
The UCLA Online Institute for Cyberspace Law and Policy, (2001,Feb 8). The Digital Millennium Copyright Act. Retrieved October 20, 2007, from The UCLA Online Institute for Cyberspace Law and Policy Web site: http://www.gseis.ucla.edu/iclp/dmca1.html
U.S. Copyright Office, (2006, July). Fair Use. Retrieved October 20, 2007, from U.S. Copyright Office Web site: http://www.copyright.gov/fls/fl102.html
U.S. Copyright Office, (Dec 1998). THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998. Retrieved October 19, 2007, from Copyright.gov Web site: http://www.copyright.gov/legislation/dmca.pdf
U.S. Government (1998). Digital Millennium Copyright Act (Enrolled as Agreed to or Passed by Both House and Senate). Retrieved September 30, 2007, from Library of Congress Web site: http://thomas.loc.gov/cgi-bin/query/D?c105:6:./temp/~c105QLEO9x
Von Lohmann, F (2006, Nov 16). Movie Studios Sue to Stop Loading of DVDs onto iPods. Retrieved October 20, 2007, from Electronic Frontier Foundation Web site: http://www.eff.org/deeplinks/2006/11/movie-studios-sue-stop-loading-dvds-ipods
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