[opendtv] News: Report Details DMCA Misuses

  • From: Craig Birkmaier <craig@xxxxxxxxx>
  • To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
  • Date: Mon, 17 Apr 2006 08:28:45 -0400


April 14, 2006
Report Details DMCA Misuses
By  David Miller

A new report from the Electronic Frontier Foundation (EFF) takes aim 
at the Digital Millennium Copyright Act (DMCA), a controversial law 
enacted seven years ago to protect intellectual property in the 
digital age.

"Unintended Consequences: Seven Years Under the DMCA" is a collection 
of well-known and obscure stories about the misuses of the DMCA.


Among those accounts is that of J. Alex Halderman, a graduate student 
at Princeton University who, in the fall of 2005, discovered the 
existence of serious security vulnerabilities in the CD 
copy-protection software on dozens of Sony BMG titles.

But he delayed publishing his discovery for several weeks while 
consulting with lawyers in order to avoid DMCA pitfalls. This left 
millions of music fans at risk longer than necessary.

In October 2003, Halderman had been threatened with a DMCA lawsuit 
after publishing a report documenting weaknesses in a CD 
copy-protection technology developed by SunnComm.

Halderman revealed that holding down the shift key on a Windows PC 
would render SunnComm's copy-protection technology ineffective. 
SunnComm executives threatened legal action under the DMCA.

Stories like these show that "rather than being used to stop piracy, 
the DMCA has predominantly been used to threaten and sue legitimate 
consumers, scientists, publishers and competitors," said EFF senior 
staff attorney Fred von Lohmann.

The EFF notes that the DMCA's anti-circumvention provisions, which 
are contained in Section 1201 of the act, were developed in response 
to obligations imposed on the U.S. by the 1996 World Intellectual 
Property Organization (WIPO) Copyright Treaty and the concerns of 
copyright owners that their works would be pirated and made available 
for download online.

Section 1201 of the DMCA contains a ban on acts of circumvention of 
Digital Rights Management technologies -- technological measures used 
by copyright owners to control access to their works -- and a ban on 
the distribution of tools and technologies used for circumvention.

  In its report, the EFF notes that the ban on acts of circumvention 
applies even where the purpose for circumventing copyright protection 
would otherwise be legitimate or strike a logical person as 
legitimate, such as research intended to expose serious security 
flaws directly caused by copyright protection programming code.

Violations of the DMCA are subject to significant civil and, in some 
circumstances, criminal penalties.

The EFF's report echoes a report released in late March by The Cato 
Insitutue, a public policy research foundation.

The Cato report, entitled "Circumventing Competition: The Perverse 
Consequences of the Digital Millennium Copyright Act," was authored 
by Timothy B. Lee, a policy analyst at the Show-Me Institute in St. 
Louis, Mo.

"The result of the DMCA has been a legal regime that reduces options 
and competition in how consumers enjoy media and entertainment," Lee 

The Recording Industry Association of America declined to comment and 
the Motion Picture Association of America was not immediately 
available for comment. Both organizations are staunch supporters of 
the DMCA.

The EFF recently issued a call for support for  House Resolution 
1201, the Digital Media Consumers' Rights Act. Congressman Rick 
Boucher (D-Va.) introduced the bill in March 2005.

HR 1201 requires that CDs must clearly state on their labels if the 
content is copyright-protected and warn that the disk might not play 
properly in all devices capable of playing a non-protected audio disc.

The label must also detail the return policy should a CD containing 
copyright protection technology not play in a device capable of 
playing an audio CD. Labels must also contain information on any 
restrictions imposed by the copyright software, such as limits on the 
number of times a song can be downloaded to a hard drive.

"We believe that the DMCA is overly broad," said Michael Petricone, 
vice president of the Consumer Electronics Association, which 
supports HR 1201. "It's a major burden on legitimate innovation and 
research that chills normal and customary consumer conduct."

  But Bruce Sunstein, an intellectual property lawyer based in Boston, 

"The DMCA is an imperfect piece of legislation, but ever since Adam 
and Eve shared the apple we live in a world that is imperfect," 
Sunstein said. "The DMCA provides a fig leaf to content providers, 
and that's a good thing in the age in which we live.

"I'm not worrying about a chilling effect from the DMCA," he added. 
"For every story of abuse, there are millions of legal downloads that 
have been protected against illicit copying by combination of digital 
rights management and the DMCA."
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