The EFF won important protections for fair use of copyrighted works and restricted use consumer technology.
On 28 October 1998, U.S. President William Jefferson Clinton signed a new law called the Digital Millennium Copyright Act. More commonly known as the DMCA, this law enacted new, far-reaching provisions for strong copyright protections.
Some of the consequences of the DMCA have been called “chilling” with regard to their effects on technological innovation and various fields of research. The DMCA has also paved the way for major corporate copyright-based industries to impose unprecedented difficulties on the exercise of the doctrine of fair use. Since the early days of the DMCA, researchers giving talks about their work have been recipients of cease-and-desist notices because software vendors whose products were the subject of some of the research did not want the flaws in their security models discussed outside the company — relying on the law, rather than good design, to protect their applications from security crackers disinclined to obey the law anyway.
The DMCA’s prohibition against circumventing DRM and “other technical protection measures” has given copyright owners the tools they need to sue people who perform actions that, in many cases, have no copyright infringing effects. Among these practical effects of the DMCA have been lawsuits targeting “jailbreakers,” cellphone unlockers, and video samplers.
Cellphone “jailbreaking” is the act of modifying software and configurations on mobile devices such as iPhones, allowing restricted platforms to be used in ways the vendors did not intend.
A related subject is that of people unlocking their cellphones, allowing them to take a cellphone acquired from one service carrier to another carrier. This can, for example, enable the use of a cellphone purchased from Verizon with a T-Mobile service account instead. The DMCA has been bent to fit the purpose of suing these unlockers, despite the fact there is no copyright infringement involved in that act at all.
Video sampling is the process of incorporating clips from previously existing videos in a new video production, in some cases producing what might be called a “remixed” video. YouTube in particular has been at the center of controversy involving these samplers of footage from previous works and, like iPhone “jailbreakers” and cellphone unlockers, they too could be subject to lawsuits for their actions.
Major copyright industry corporations — such as the core members of the RIAA, MPAA, and BSA — hold most of the cards when it comes to litigation over terms of the DMCA. The “little guy”, meaning individual middle class people who just want to be able to enjoy their purchases and use them the way they see fit, are largely at the whim of the legal departments of such corporations. As a result, these corporations have used the powerful legal weapons placed at their disposal as a result of the DMCA to whittle away at the U.S. legal doctrine of fair use, effectively restricting anyone’s ability to do much of anything with the CDs, DVDs, MP3s, and even physical electronic devices that they have purchased.
The DMCA does provide some provision for relief. It is a bureaucratically complex process of petitioning the Copyright Office and Librarian of Congress for fair use exemptions to the restrictive provisions of the DMCA. Once every three years, these requests are reviewed and either granted or denied. Even when granted, these grants of exemption expire after the following three year period, requiring those with an interest in ensuring such exemptions in perpetuity to petition for renewal every cycle. Furthermore, for an exemption to be granted, the rules of the process require that there has been some substantial adverse effect on the ability to exercise fair use rights to employ copyrighted works.
Luckily, the corporations with all the legal manpower to pursue their agendas indefinitely are not the only organizations talking to the Copyright Office and Librarian of Congress about the matter. This year, the Electronic Frontier Foundation won three exemptions on behalf of American citizens:
- “Jailbreaking” smartphones (a new exemption)
- Unlocking cellphones (an exemption renewal)
- Video sampling for noncommercial uses (a new exemption)
The DMCA feeds the corporate effort to pretend the law provides some kind of effective security against illegal copyright infringement. It doesn’t, of course, but it does effectively make life difficult for law-abiding people who simply want to use what they have purchased. Thanks in part to the efforts of the EFF, it is not quite as difficult as it could be this year.