Digital Millennium Copyright Act and its purpose
The Digital Millennium Copyright Act (“DMCA”) was enacted by the US Government in 1998 to implement two World Intellectual Property Organization (“WIPO”) treaties and also equip US Copyright Law to cope with the digital revolution at the time with the advent of internet.
The main purpose behind DMCA was to prevent piracy by outlawing circumvention of digital measures to regulate access to copyrighted works. To ensure that DMCA does not unnecessarily encroach upon uses that do not amount to copyright infringement, it also includes certain acts of circumvention which have been exempted from the purview of the provision. These exemptions include reverse engineering, security testing, encryption research and law enforcement.
Central problem surrounding the DMCA today
While the DMCA has been used to prevent piracy, the Electronic Frontier Foundation (“EFF”) argues that it has increasingly been used to stifle competition and innovation. However, the central tension of the application of the DMCA can be traced to the fact that many anti-circumvention technologies have both infringing and non-infringing uses and when such an anti-circumvention technology is barred by the DMCA, questions are bound to arise on whether the DMCA has been rightly applied to prevent piracy or if it amounts to overreach to prevent non-infringing use under the Copyright Act. A fine balance needs to be struck here and this is the main tension surrounding the DMCA today. The best example to illustrate this problem is jailbreaking of iPhones. Apple places certain technological restrictions on its operating system found in its smartphones which ensures that only applications present on its own app store can be downloaded and installed on the smartphone and only modifications that are in-built in the operating system can be made by users. Jailbreaking allows users to download and install apps available outside Apple’s app store and make modification which have not been envisaged by the operating system. The problem is that while installing and downloading original third party apps which are not available on the app store and making modifications to the operating system, arguably do not fall under the purview of the Copyright Act and are non-infringing uses, jailbreaking also allows users to download and install pirated versions of apps available on the app store. While few will argue that it is proper to prevent anti-circumvention technologies which promote piracy, the problem arises when users’ freedom of being able to use third-party apps and modifications is curtailed. In an EFF report in 2008, it was found that an estimated 350,000 consumers had jailbroken their phones and utilized Cydia, an alternative to Apple’s app store that sells licensed apps that may otherwise be unavailable through official channels[1]. While there is no specific data available to show how many jailbroken iPhones are used to run pirated apps, it is clear that there are legitimate pro-copyright reasons for permitting jailbreaking.
So how should one decide whether a technology that has both infringing and non-infringing uses ought to be barred under the DMCA?
Courts’ take on the issue of infringing and non-infringing uses
The question of whether an anti-circumvention technology that has both infringing and non-infringing uses ought to be outlawed was addressed by the Supreme Court of United States (SCOTUS) in 1984 where it held that Sony’s BETAMAX, a home video recording device which had both infringing and non-infringing uses was legal because of the presence of “substantial non-infringing uses”. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). However, it is worth noting that at the time of this decision, the DMCA did not exist. In a case subsequent to the enactment of the DMCA, the anti-circumvention technology in question was a software that allows users to make hard drive copies of copyrighted DVDs. RealNetworks, Inc. v. DVD Copy Control Association, Inc., 2009 BL 170417. Real Networks, Inc., the Plaintiff, argued that its software, RealDVD, has substantial non-infringing uses as it allows consumers of DVDs to make back up copies which is protected by the fair use provision under the Copyright Act. However, the Court held that fair use is not a defense under the DMCA as it is the technology itself in issue and not copyright infringement. The Court ignored that the software had legitimate non-infringing uses. On balance, it seems that anti circumvention technologies that have both infringing and non-infringing uses will not find favor with the Courts and are likely to be declared contraband as things stand. This is disturbing as many anti-circumvention technologies that ought to be available to the public to make legitimate non-infringing uses will not be so available. What then is the solution?
Is DMCA’s rulemaking provision the savior for anti-circumvention technologies with non-infringing uses?
Under the DMCA, the United States Copyright Office was entrusted with protecting the lawful uses that might be suppressed by the DMCA and every three years the office conducts a rulemaking process to determine classes of works to be exempt from the DMCA[2]. The Copyright Office narrowly defined “classes of work” that could be exempted[3] and also required a high standard of harm to lawful uses of the work if circumvention was prohibited. However, in the rulemaking processes so far in 2000, 2003, 2006, 2009, 2012 and 2015, the Copyright Office’s interpretation of class of works has broadened[4]. Over the years, the rulemaking process has been used to exempt increasing classes of works from the DMCA ranging from two exceptions in the 2000 rule making to four in 2003 to six in 2006. The latest rulemaking process, the results of which were published fairly recently on October 28, 2015, exempted 10 anti circumvention measures and took into consideration the infringing and non-infringing uses of all of these technologies by taking into account real world data of how the technologies have been used. For instance, jailbreaking of iPhones which was discussed in the first part of this paper have been exempt from the DMCA as the Copyright Office found that the harm to lawful uses was far outweighed by infringing uses of the technology considering the right of users to use third-party legitimate apps and other modification tools was being infringed. However, jailbreaking of video game consoles was considered and rejected as the Copyright Office found that there are no significant non-infringing uses and that most users jailbreak video game consoles to download and use pirated copies of games. It is noteworthy to mention that EFF has been instrumental in pushing through a lot of these exemptions by filing amicus briefs in favor of these technologies.
The rulemaking process has been quite successful over the years and the Copyright Office has been able to exempt those technologies that have substantial non-infringing uses and have a real societal impact. As things stand, the rule making process seems to be the public’s best bet to push through legitimate anti circumvention technologies. However, the US Copyright Office needs some support in this regard. Since 2000, the rulemaking process has gradually begun earlier and lasted longer. The longer the process lasts, the more time, staff and resources must be devoted to it and considering that this function of the Copyright Office is non-fee bearing and the fact that proposed exemptions will inevitably increase over time, is a concern. If proposed exemptions keep increasing at the same rate, the Copyright Office might be unable to sustain the existing rulemaking system.
What are the solutions to tackle this problem?
While it is clear that the rule making process is definitely the savior for anti circumvention technologies with non-infringing uses, there are certain measures which could be taken to further make the rule making process more robust and well-equipped for the future. First of all, the DMCA requires some congressional intervention in the form of more permanent exemptions under the DMCA. The exemptions under the Act, as it stands, are very narrow and the congress could do the Copyright Office a favor by adding to the exemption list certain anti-circumvention technologies that have obvious non-infringing uses. It is true that the congress has made such efforts in the past but has not been able to transform bills into legislations. In 2010, Representative Boucher attempted to introduce a fair use exception to the DMCA but the bill failed[5]. It is time for the congress to support such bills so the burden on the Copyright Office can be reduced in the future. Another solution could be to form an independent body with its own budget and resources to carry out the rule making process under the DMCA. The congress has the power to form such a body under the Act itself.
The rulemaking process is the most important tools to fight encroachment of the DMCA on anti circumvention measure with non-infringing uses and it is time that congress lent a helping hand to the Copyright Office as such exception proposals are bound to increase exponentially in the future.
[1]See Erica Sadun, The Story Behind Cydia on the iPhone,ARs TECHNICA, Oct. 8, 2008, http://arstechnica.com/journals/apple.ars/2008/1O/08/ the-story-behind-cydia-on-the-iphone
[2] See 17 U.S.C. §1201(a)(1)(C)
[3] Woodrow Neal Hartzog, Falling on Deaf Ears: Is the “Fail-Safe” Triennial Exemption Provision in the Digital Millennium Copyright Act Effective in Protecting Fair Use?, 12 J. INTELL. PROP. L. 309, 334 (2005)
[4]The Copyright Office’s Protection Of Fair Uses Under The Dmca: Why The Rulemaking Proceedings Might Be Unsustainable And Solutions
For Their Survival By Elizabeth F. Jackson*, 58 J. Copyright Soc’y U.S.A. 521 2010-2011
[5] see Michael W. Carroll, Fixing Fair Use, 85 N.C. L. REV. 1087, 1123 (2007)
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