WIPO Copyright And Performances And Phonograms Treaties

Section 102 gives the act its name, which is based on the requirements of the WIPO Copyright Treaty concluded at Geneva, Switzerland, on 20 December 1996. It modifies US copyright law to include works produced in the countries which sign the following treaties:

2 Section 103

Section 103 provoked most of the controversy which resulted from the act. It is often called DMCA anti-circumventionAnti-Circumvention law has made the circumvention of some technological barriers to copying intellectual property illegal. For example, Sec. 1201 (a)(1)(A) of the DMCA states that (among other things): No person shall circumvent a technological measure th provisions. It restricts the ability to sell devices which circumvent copyright protection systems, adding Chapter 12 consisting of sections 1201 through 1205 to US copyright law.

2.1 Section 103 cases

Here are a handful of notable uses of the law:

DVDDVD is an optical disc storage media format that is used for playback of movies with high video and sound quality and for storing data. DVDs are similar in appearance to compact discs. History During the early 1990s there were two high density optical stos are often encrypted with the Content Scrambling System (CSS). To play a CSS DVD, you must decrypt it. Jon Johansen and two anonymous colleagues wrote DeCSS, a program that did this decryption, so they could watch DVDs in GNU/Linux. US servers distributing this software were asked to stop because they were violating this law. 2600 Magazine was sued under this law for distributing a list of links to websites where DeCSS could be downloaded.

A similar program, also by Jon Johansen, decrypted iTunes Music Store files so they could be played on GNU/Linux. Apple got the software taken down from several servers for violating this law.

Dmitry Sklyarov, a Russian programmer was jailed under this law when he visited the US, because he had written a program in Russia which allowed users to access documents for which they had forgotten the password to. (He was eventually acquitted by a jury of all counts, reportedly because the jury thought the law was unfair -- a phenomenon known as jury nullification.)

aibohack.com, a website which distributed tools to make Sony's AIBO robotic pet do new tricks, like dance jazz. Sony alleged that the tools violated this law, and asked for them to be taken down. (After negative press they changed their mind.)

A company selling mod chips for Sony PlayStations, which allowed the systems to play video games from other countries, was raided by the US government and their products were seized under this law.

Smart cards, while they have many other purposes, are also used by DirecTV to decrypt their television satellite signals for paying users. Distributors of smart card readers, which could create smart cards (including ones that could decrypt DirecTV signals) were raided by DirecTV and their products and customer lists were seized. DirecTV than sent a leter to over 100,000 purchasers of the readers and filed lawsuits against over 5,000. They offered to not file or drop the suit for $3500, less than litigating the case would cost. (The suits are ongoing.)

Lexmark sued Static Control Components which made replacement recycled toner cartridge s for their printers under this law. Lexmark initially won a preliminary injunction, but that injunction was vacated by the Court of Appeals for the Sixth Circuit. (The lawsuit is ongoing.)

The Chamberlain Group sued Skylink Technologies for creating garage door openers that opened their own garage doors under this law. (The lawsuit is ongoing, though the Court of Appeals for the Federal Circuit has issued a ruling casting seriosu doubt on Chamberlain's likelihood of success.)

Prof. Edward Felten and several colleagues, were threatened with a lawsuit under this law if they presented a paper at a technical conference describing how they participated in the SDMI decryption challenge. (After Felten sued for declaratory judgement, the threat was dropped.)

Secure Network Operations (SNOsoft), a group of secrurity researchers, published a security flaw in HP's Tru64 operating system after HP refused to fix it. HP threatened to sue them under this law. (After negative press they dropped the threat.)

Computer researchers presenting security holes in the university system Blackboard were slapped with an injunction after the makers of Blackboard had a secret meeting with a judge. The makers had previously sent a complaint to the researchers saying they were violating this law.

Princeton student Alex Halderman was threatened by SunnComm under this law for explaining how MediaMax CD copy protection worked. Halderman explained that the copy protection could be defeated by holding down the shift key when inserting the CD into Windows (this prevented autorun , which installed the MediaMax protection software). (After press attention SunnComm withdrew their threat.) Blizzard Entertainment threatened the developers of bnetd, a freely available clone of battle.net, a proprietary server system used by all Blizzard games on the Internet. Blizzard claims that these servers allow circumvention of its CD key copy protection scheme. (The Electronic Frontier Foundation is currently negotiating a settlement.)

3 Why and why not

Large copyright holders like the MPAA and RIAA say the law is necessary to prevent copyright infringement in the digital era, while a growing coalition of Internet activists feel that the law stifles innovation while doing little to stop copyright infringment.

Some proponents of the law claim it was necessary to implement several WIPO treaties. Opponents respond that the law was not necessary, even if it was it went far beyond what the treaties require, and the treaties were written and passed by the same industry lobbyists people who wanted to pass this law.

Others claim that the law is necessary to prevent online copyright infringement, using perfect digital copies. Opponents note that copyright infringement was already illegal and the DMCA doesn't outlaw infringement but only legal uses like display and performance.

Opponents of the law charge that it violates the First Amendment, because it restricts the distribution of computer software, like DeCSS. The Eleventh Circuit rejected this argument in MPAA v. 2600 , suggesting that software wasn't really speech. Most other circuits that have considered the issue concluded software is speech, but have not considered this law.

Opponents also say it creates serious chilling effects stifling legitimate First Amendment speech. For example, John Wiley & Sons changed their mind and decided not to publish a book by Andrew Huang about security flaws in the Xbox because of this law. After Huang tried to self-publish, his online store provider dropped support because of similar concerns. (The book is now being published by No Starch Press .)

Opponents also note that since the law gives full control to copyright holders over what uses are and are not permitted, it essentially eliminates fair use. For example, ebook readers protected by this law can prevent the user from copying short excerpts from the book, printing a couple pages, and having the computer read the book aloud -- all of which are legal under copyright law, but building a tool to do them is illegal under this law.

4 Copyright Office rulemaking procedures

As required by the DMCA, in 2002 the U.S. Copyright Office launched a public appeal for comments on the DMCA in order "to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls". The first set of comments is posted here.

5 External links

Text of the law
Copyright Office : Rulemaking procedures

EFF: Unintended Consequences: Five Years under the DMCA

United States intellectual property law Copyright law

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1 Section 102