Unintended Consequences: Five Years under the DMCA
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1. Executive Summary
Since they were enacted in 1998, the "anti-circumvention" provisions
of the Digital Millennium Copyright Act ("DMCA"), codified in section 1201
of the Copyright Act, have not been used as Congress envisioned. Congress
meant to stop copyright pirates from defeating anti-piracy protections added
to copyrighted works, and to ban "black box" devices intended for that purpose.
In practice, the anti-circumvention provisions have been used
to stifle a wide array of legitimate activities, rather than to stop copyright
piracy. As a result, the DMCA has developed into a serious threat to several
important public policy priorities:
Section 1201 Chills Free Expression and Scientific
Experience with section 1201 demonstrates that it is
being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward
Felten’s team of researchers, and prosecution of Russian programmer Dmitry
Sklyarov have chilled the legitimate activities of journalists, publishers,
scientists, students, programmers, and members of the public.
Section 1201 Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies
and tools that can be used for circumvention, section 1201 grants to copyright
owners the power to unilaterally eliminate the public’s fair use rights.
Already, the music industry has begun deploying "copy-protected CDs" that
promise to curtail consumers’ ability to make legitimate, personal copies
of music they have purchased.
Section 1201 Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners
have wielded the DMCA to hinder their legitimate competitors. For example,
Sony has invoked section 1201 to protect its monopoly on Playstation video
game consoles, as well as their "regionalization" system limiting users in
one country from playing games legitimately purchased in another.
Section 1201 Becomes All-Purpose Ban on Access To
Further, section 1201 has been misused as a new general-purpose
prohibition on computer network access which, unlike the several federal "anti-hacking" statutes
that already protect computer network owners from unauthorized intrusions,
lacks any financial harm threshold. Disgruntled ex-employer Pearl Investment’s
use of the DMCA against a contract programmer who connected to the company’s
computer system through a password-protected Virtual Private Network illustrates
the potential for unscrupulous persons to misuse the DMCA to achieve what
would not be possible under existing computer access regulation regimes.
This document collects a number of reported cases where the anti-circumvention
provisions of the DMCA have been invoked not against pirates, but against
consumers, scientists, and legitimate comp–etitors. It will be updated from
time to time as additional cases come to light. The latest version can always
be obtained at www.eff.org.
2. DMCA Legislative
Congress enacted section 1201 in response to two pressures. Congress
was responding to the perceived need to implement obligations imposed on
the U.S. by the 1996 World Intellectual Property Or–ganization (WIPO) Copyright
Treaty. Section 1201, however, went further than the WIPO treaty required. name="_Ref399669150"> The details of section 1201, then, were
a response not just to U.S. treaty obligations, but also to the concerns
of copyright owners that their works would be widely pirated in the networked
Section 1201 contains two distinct prohibitions: a ban on acts of circumvention, and a ban on the distribution
of tools and technologies used for circumvention.
The first prohibition, set
out in section 1201(a)(1), prohibits the act of circumventing a technological measure used by copyright owners to
control access to their works ("access controls"). So, for example, this
provision makes it unlawful to defeat the encryption system used on DVD movies.
This ban on acts of circumvention applies even where the purpose for decrypting
the movie would otherwise be legitimate. As a result, when Disney’s Tarzan DVD prevents you from fast-forwarding through the
commercials that preface the feature presentation, efforts to circumvent
this restriction would be unlawful.
Second, sections 1201(a)(2) and 1201(b) outlaw the manufacture,
sale, distribution or trafficking of tools and technologies that make circumvention possible. These provisions
ban both technologies that defeat access controls, and also technologies that defeat use restrictions imposed
by copyright owners, such as copy controls. These provisions prevent technology vendors from taking
steps to defeat the "copy-protection" now appearing on many music CDs, for
Section 1201 also includes a number of exceptions for certain
limited classes of activities, including security testing, reverse engineering
of software, encryption research, and law enforcement. These exceptions have
been extensively criticized as being too narrow to be of real use to the
constituencies who they were intended to assist. title="">
A violation of any of the "act" or "tools" prohibitions is subject
to significant civil and, in some circumstances, criminal penalties.
3. Free Expression
and Scientific Research
Section 1201 is being used by a number of copyright owners to
stifle free speech and legitimate scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward
Felten’s team of researchers, and prosecution of the Russian programmer Dmitry
Sklyarov have chilled a variety of legitimate activities.
Bowing to DMCA liability fears, online service providers and
bulletin board operators have begun to censor discussions of copy-protection
systems, programmers have removed computer security programs from their websites,
and students, scientists and security experts have stopped publishing details
of their research on existing security protocols. Foreign scientists are
increasingly uneasy about traveling to the United States out of fear of possible
DMCA liability, and certain technical conferences have begun to relocate
These developments will ultimately result in weakened security
for all computer users (including, ironically, for copyright owners counting
on technical measures to protect their works), as security researchers shy
away from research that might run afoul of section 1201. name="_ednref5" title="">
Cyber-Security Czar Notes Chill on Research
Speaking at MIT in October 2002, White House Cyber Security Chief
Richard Clarke called for DMCA reform, noting his concern that the DMCA had
been used to chill legitimate computer security research. The Boston Globe quoted Clarke as saying, "I think a lot of people
didn\'t realize that it would have this potential chilling effect on vulnerability
Jonathan Band, "Congress Unknowingly Undermines Cyber-Security," S.J. Mercury
News, Dec. 16, 2002.
Hiawatha Bray, "Cyber Chief Speaks on Data Network Security," The
Boston Globe, October 17, 2002.
Professor Felten’s Research Team Threatened
In September 2000, a multi-industry group known as the Secure
Digital Music Initiative (SDMI) issued a public challenge encouraging skilled
technologists to try to defeat certain watermarking technologies intended
to protect digital music. Princeton Professor Edward Felten and a team of
researchers at Princeton, Rice, and Xerox took up the challenge and succeeded
in removing the watermarks.
When the team tried to present their results at an academic conference,
however, SDMI representatives threatened the researchers with liability under
the DMCA. The threat letter was also delivered to the researchers’ employers
and the conference organizers. After extensive discussions with counsel,
the researchers grudgingly withdrew their paper from the conference. The
threat was ultimately withdrawn and a portion of the research was published
at a subsequent conference, but only after the researchers filed a lawsuit.ß
After enduring this experience, at least one of the researchers
involved has decided to forgo further research efforts in this field.
Pamela Samuelson, "Anticircumvention Rules: Threat to Science," 293 Science 2028,
Sept. 14, 2001.
Letter from Matthew Oppenheim, SDMI General Counsel, to Prof.
Edward Felten, April 9, 2001.
Hewlett Packard Threatens SNOsoft
Hewlett-Packard resorted to Section 1201 threats when researchers
published their discovery of a security flaw in HP’s Tru64 UNIX operating
system. The researchers, a loosely-organized collective known as Secure Network
Operations ("SNOsoft"), received the DMCA threat after releasing software
in July 2002 that demonstrated vulnerabilities that HP had been aware of
for some time, but had not bothered to fix.
After the DMCA threat received widespread press attention, HP
ultimately withdrew the threat. Security researchers received the message,
however—publish vulnerability research at your own risk.
Declan McCullagh, "Security Warning Draws DMCA Threat," CNET
News, July 30, 2002.
Blackboard Threatens Security Researchers
In April 2003, educational software company Blackboard Inc. used
a DMCA threat to stop the presentation of research on security vulnerabilities
in its products at the InterzOne II conference in Atlanta. Students Billy
Hoffman and Virgil Griffith were scheduled to present their research on security
flaws in the Blackboard ID card system used by university campus security
systems but were blocked shortly before the talk by a cease-and-desist letter
invoking the DMCA. Blackboard obtained a temporary restraining order against
the students and the conference organizers at a secret "ex parte" hearing
the day before the conference began, giving the students and conference organizer
no opportunity to appear in court or challenge the order before the scheduled
presentation. Although the lawsuit complaint Blackboard subsequently filed
did not mention the DMCA, its invocation in the original cease-and-desist
letter preceding the complaint contributed to the chill the students and
conference organizers felt in challenging the complaint and proceeding with
the scheduled presentation.
John Borland, "Court Blocks Security Conference Talk," CNET
News, April 14, 2003.
Xbox Hack Book Dropped by Publisher
In 2003, U.S. publisher John Wiley & Sons dropped plans to
publish a book by security researcher Andrew "Bunnie" Huang, citing DMCA
liability concerns. Wiley commissioned Huang to write the book which analyzes
security flaws Huang discovered in the process of reverse-engineering the
Microsoft X-Box game console, after Huang published his research as part
of his doctoral work at M.I.T. Huang did not distribute the Xbox public security
keys which he had isolated through reverse engineering and did not copy any
Xbox code. Although the DMCA includes exceptions for circumvention for computer
security testing and reverse engineering, they were too narrow to be of use
to Huang or his publisher.
Following Microsoft’s legal action against the website vendor
of an Xbox mod chip in early 2003, and the music industry’s 2001 DMCA threats
against Professor Felten’s research team, Wiley dropped the book fearing
that the publisher might be liable for "making available" a "circumvention
device." Huang’s initial attempt to self-publish was thwarted after his online
shopping cart provider also withdrew, citing DMCA concerns. After several
months of negotiations, Huang eventually self-published the book in mid 2003.
The book is now being published by No Starch Press.
David Becker, "Testing Microsoft and the DMCA", CNET News, April 15, 2003.
Clive Akass, "Huang Jury on Xbox Cracker", TechNewsWorld, August 2003
Seth Schiesel, "Behind a Hacker’s Book, a Primer on Copyright
Law", New York Times, Circuits, July 10, 2003.
Censorware Research Obstructed
Seth Finkelstein conducts research on "censorware" software (i.e.,
programs that block websites that contain objectionable material), working
to document flaws in such software, including the products of N2H2, a leading
censorware company. Finkelstein’s research documenting websites inappropriately
blocked by N2H2’s software assisted the ACLU’s successful First Amendment
challenge to the use of mandatory web filtering software by federally-funded
N2H2 claims that its encrypted list of blocked websites is legally
protected by the DMCA against attempts to read and analyze it. Utilizing
a limited three year exemption granted by the Librarian of Congress and Copyright
Register in 2000, Finkelstein circumvented the encryption on the list of
sites blocked by BESS in order to analyze flaws in that list.
However, Finkelstein’s research work has been severely limited
by the fact that the three year exemption is limited to the act of circumvention, and does not permit him to create
or distribute tools that would facilitate his research. In addition, the
existing exemption is due to expire in October 2003, and as Finkelstein testified
before the Copyright Office in its 2003 rule-making hearing, unless the exemption
is re-granted, Finkelstein will be unable to continue his research because
he fears that censorware companies may bring a DMCA lawsuit against him to
terminate his research. Even if he were later found not to have violated
section 1201, the potential for a DMCA lawsuit would preclude him from undertaking
Jennifer 8 Lee, "Cracking the Code of Online Censorship", New York Times, July 19, 2001.
Transcript of Hearing in Copyright Office Rulemaking Proceeding RM 2002-04, tri-ennial anti-circumvention exemption hearing, April 11, 2003, at pages 11, 31 available at:
Benjamin Edelman has also conducted extensive research into flaws in various censorware products. Edelman’s research led to his providing expert testimony for the ACLU in a recent federal court case challenging the constitutionality of the Children\'s Internet Protection Act (CIPA), which mandates that public
libraries use censorware products like those sold by N2H2.
In the course of his work for the ACLU, Edelman discovered that
the DMCA might interfere with his efforts to learn what websites are blocked
by N2H2 products. Because he sought to create and distribute software tools
to enable others to analyze the list if it changed, Edelman could not rely
on the limited 3 year exception. As he was not willing to risk civil and
criminal penalties under Section 1201, Edelman was forced to go to federal
court to seek clarification of his legal rights before he could undertake
his legitimate research. However, underscoring the chilling effect of the
DMCA on such research, the Court dismissed Edelman’s case for lack of standing.
ACLU, "In Legal First, ACLU Sues Over New Copyright
Law" (case archive).
Dmitry Sklyarov Arrested
In July 2001, Russian programmer Dmitry Sklyarov was jailed for
several weeks and detained for five months in the United States after speaking
at the DEFCON conference in Las Vegas.
Prosecutors, prompted by software goliath Adobe Systems Inc.,
alleged that Sklyarov had worked on a software program known as the Advanced
e-Book Processor, which was distributed over the Internet by his Russian
employer, ElcomSoft Co. Ltd. The software allowed owners of Adobe electronic
books ("e-books") to convert them from Adobe’s e-Book format into Adobe Portable
Document Format ("pdf") files, thereby removing restrictions embedded into
the files by e-Book publishers.
Sklyarov was never accused of infringing any copyrighted e-Book,
nor of assisting anyone else to infringe copyrights. His alleged crime was
working on a software tool with many legitimate uses, simply because third
parties he has never met might use the tool to copy an e-Book without the
The Department of Justice ultimately permitted Sklyarov to return
home, but elected to proceed against his employer, ElcomSoft, under the criminal
provisions of the DMCA. In December 2002, a jury acquitted Elcomsoft of all
charges, completing an 18-month ordeal for the wrongly-accused Russian software
Lawrence Lessig, "Jail Time in the Digital Age," N.Y. Times at A7, July 30, 2001.
Lisa Bowman, "Elcomsoft Verdict: Not Guilty," CNET News,
Dec. 17, 2002.
Scientists and Programmers Withhold Research
Following the legal threat against Professor Felten’s research
team and the arrest of Dmitry Sklyarov, a number of prominent computer security
experts have curtailed their legitimate research activities out of fear of
potential DMCA liability.
For example, prominent Dutch cryptographer and security systems
analyst Niels Ferguson discovered a major security flaw in an Intel video
encryption system known as High Bandwidth Digital Content Protection (HDCP).
He declined to publish his results on his website relating to flaws in HDCP,
on the grounds that he travels frequently to the U.S. and is fearful of "prosecution
and/or liability under the U.S. DMCA law."
Niels Ferguson, "Censorship in Action: Why I Don’t Publish
My HDCP Results," Aug. 15, 2001.
Niels Ferguson, Declaration in Felten & Ors v R.I.A.A.
case, Aug. 13, 2001.
Lisa M. Bowman, "Researchers Weigh Publication, Prosecution," CNET News,
Aug. 15, 2001.
Following the arrest of Dmitry Sklyarov, Fred Cohen, a professor
of digital forensics and respected security consultant, removed his "Forensix" evidence-gathering
software from his website, citing fear of potential DMCA liability.
Another respected network security protection expert, Dug Song,
also removed content from his website for the same reason. Mr. Song is the
author of several security papers, including a paper describing a common
vulnerability in many firewalls.
Robert Lemos, "Security Workers: Copyright Law Stifles," CNET News,
Sept. 6, 2001.
In mid-2001 an anonymous programmer discovered a vulnerability
in Microsoft’s proprietary e-Book digital rights management code, but refused
to publish the results, citing DMCA liability concerns.
Wade Roush, "Breaking Microsoft\'s e-Book Code," Technology Review at 24, November 2001.
Foreign Scientists Avoid U.S.
Foreign scientists have expressed concerns about traveling to
the U.S. following the arrest of Russian programmer Dmitry Sklyarov. Some
foreign scientists have advocated boycotting conferences held in the U.S.
and a number of conference bodies have decided to move their conferences
to non-U.S. locations. Russia has issued a travel warning to Russian programmers
traveling to the U.S.
Highly respected British Linux programmer Alan Cox resigned from
the USENIX committee of the Advanced Computing Systems Association, the committee
that organizes many of the U.S. com–puting conferences, because of his concerns
about traveling to the U.S. Cox has urged USENIX to hold its annual conference
offshore. The International Information Hiding Workshop Conference, the conference
at which Professor Felten’s team intended to present its original paper,
chose to break with tradition and held its next conference outside of the
U.S. following the SDMI threat to Professor Felten and his team.
Will Knight, "Computer Scientists boycott US over digital
copyright law," New Scientist, July 23, 2001.
Alan Cox of Red Hat UK Ltd, declaration in Felten v. RIAA,
Aug. 13, 2001. http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_cox_decl.html
Jennifer 8 Lee, "Travel Advisory for Russian Programmers," N.Y. Times at C4, Sept.10, 2001.
IEEE Wrestles with DMCA
The Institute of Electrical and Electronics Engineers (IEEE), which publishes 30 per cent of all computer science journals worldwide, recently was drawn into the controversy surrounding science and the DMCA. Apparently concerned about possible liability under Section 1201, the IEEE in November 2001 instituted a policy requiring all authors to indemnify IEEE for any liabilities incurred should a submission result in legal action under the DCMA.
After an outcry from IEEE members, the organization ultimately revised its submission policies, removing mention of the DMCA. According to Bill Hagen, manager of IEEE Intellectual Property Rights, "The Digital Millennium Copyright Act has become a very sensitive subject among our authors. It’s intended to protect digital content, but its application in some specific cases appears to have alienated large segments of the research community."
IEEE press release, "IEEE to Revise New Copyright Form to
Address Author Concerns," April 22, 2002.
Will Knight, "Controversial Copyright Clause Abandoned," New Scientist, April 15, 2002.
2600 Magazine Censored
In that case, eight major motion picture companies brought a
DMCA suit against 2600 Magazine seeking
to block it from publishing the DeCSS software program, which defeats the
encryption used on DVD movies. 2600 had
made the program available on its web site in the course of ongoing coverage
of the controversy surrounding the DMCA. The magazine was not involved in
the development of software, nor was it accused of having used the software
for any copyright infringement.
Notwithstanding the First Amendment’s guarantee of a free press,
the district court permanently barred 2600 from
publishing, or even linking to, the DeCSS software code. In November 2001,
the Second Circuit Court of Appeals upheld the lower court decision.
In essence, the movie studios effectively obtained a "stop the
presses" order banning the publication of truthful information by a news
publication concerning a matter of public concern—an unprecedented curtailment
of well-established First Amendment prin–ciples.
Carl S. Kaplan, "Questioning Continues in Copyright Suit," N.Y. Times, May 4, 2001.
Simson Garfinkel, "The Net Effect: The DVD Rebellion,"Technology Review at 25, July/Aug. 2001.
Xenia P. Kobylarz, "DVD Case Clash—Free Speech Advocates
Say Copyright Owners Want to Lock Up Ideas; Encryption Code is Key," S.F. Daily Journal, May 1, 2001.
CNET Reporter Feels Chill
Prominent CNET News reporter Declan McCullagh recently found
four publicly-available documents on the Transportation Security Administration
(TSA) website. The website announced that the documents contained information
about airport security procedures, the relationship between federal and local
police, and a "liability information sheet." A note on the site stated that
this "information is restricted to airport management and local law enforcement." No
password was necessary to download the documents, but they were distributed
in encrypted form and a password was required to open and read them.
McCullagh obtained the passwords from an anonymous source, but
fear of DMCA liability stopped him from reading the documents—using a password
without authorization could violate Section 1201. This is particularly ironic,
as any foreign journalist beyond the reach of the DMCA would be free to use
"Journalists traditionally haven\'t worried about copyright law
all that much," said McCullagh, "But nowadays intellectual property rights
have gone too far, and arguably interfere with the newsgathering process."
Declan McCullagh, "Will This Land Me in Jail?", CNET News, Dec. 23, 2002.
Microsoft Threatens Slashdot
In spring 2000, Microsoft invoked the DMCA against the Internet
publication forum Slashdot, demanding that forum moderators delete materials
relating to Microsoft’s proprietary implementation of an open security standard
known as Kerberos.
In the Slashdot forum, several individuals alleged that Microsoft
had changed the open, non-proprietary Kerberos specification in order to
prevent non-Microsoft servers from interacting with Windows 2000. Many speculated
that this move was intended to force users to purchase Microsoft server software.
Although Microsoft responded to this criticism by publishing its Kerberos
specification, it conditioned access to the specification on agreement to
a "click-wrap" license agreement that expressly forbade disclosure of the
specification without Microsoft’s prior consent.
Slashdot posters responded by republishing the Microsoft specification.
Microsoft then invoked the DMCA, demanding that Slashdot remove the republished
In the words of Georgetown law professor Julie Cohen, "If Microsoft\'s
interpretation of the DMCA\'s ban on circumvention technologies is right,
then it doesn\'t seem to matter much whether posting unauthorized copies of
the Microsoft Kerberos specification would be a fair use. A publisher can
prohibit fair-use commentary simply by implementing access and disclosure
restrictions that bind the entire public. Anyone who discloses the information,
or even tells others how to get it, is a felon."
Julie Cohen, "Call it the Digital Millennium Censorship Act – Unfair Use," The New Republic, May 23, 2000.
AVSforum.com Censors TiVo Discussion
The specter of DMCA litigation has chilled speech on smaller
web bulletin boards as well. In June 2001, for example, the administrator
of AVSforum.com, a popular forum where TiVo digital video recorder owners
discuss TiVo features, censored all discussion about a software program that
allegedly permitted TiVo users to move video from their TiVos to their personal
computers. In the words of the forum administrator, "My fear with this is
more or less I have no clue what is a protected system on the TiVo box under
copyright (or what-have-you) and what is not. Thus my fear for the site."
Lisa M. Bowman, "TiVo Forum Hushes Hacking Discussion," CNET News,
June 11, 2001.
Mac Forum Censors iTunes Store Discussion
Macintosh enthusiast website Macosxhints censored publication
of information about methods for evading the copy protection on songs purchased
from the Apple iTunes Music Store in May 2003, citing DMCA liability concerns.
Songs purchased from the Apple iTunes Music Store are downloaded in Apple’s
proprietary AAC file format, wrapped in digital copy protection. This prevents
purchasers from playing the songs on non-iPod portable MP3 players or from
transferring songs to non Mac OS computers for personal, non-commercial use,
even if that would be considered fair use under copyright law. As the webmaster
for the site noted, even though information on bypassing the copy protection
was readily available on the Internet at the time, republishing user hints
on work-arounds risked attracting a DMCA lawsuit and harsh penalties.
4. Fair Use
"Fair use" is a crucial element in American copyright law—the
principle that the public is entitled, without having to ask permission,
to use copyrighted works in transformative ways or other ways that do not
unduly interfere with the copyright owner’s market for a work. Fair uses
include personal, noncommercial uses, such as using a VCR to record a television
program for later viewing. Fair use also includes activities undertaken for
purposes such as criticism, comment, news reporting, teaching, scholarship
While stopping copyright infringement is an important policy
objective, Section 1201 throws out the baby of fair use with the bathwater
of digital piracy. By employing technical protection measures to control
access to and use of copyrighted works, and using section 1201 litigation
against anyone who tampers with those measures, copyright owners can unilaterally
eliminate fair use, re-writing the copyright bargain developed by Congress
and the courts over more than a century.
The introduction of "copy-protected" CDs into the marketplace
illustrates the collision between fair use and the DMCA. Record labels are
aggressively incorporating "copy-protection" on new music releases. Over
10 million copy-protected discs are already in circulation, according to
Midbar Technology Ltd, (now Macrovision), one vendor of copy-protection technology.
Sony claims that it has released over 11 million copy-protected discs worldwide.
Executives from major record labels EMI and BMG have both stated that a significant
proportion of all CDs released in the U.S. will be copy-protected by the
end of 2003.
Whatever the impact that these copy protection technologies may
have on online infringement, they are certain to interfere with the fair
use expectations of consumers. For example, copy-protected discs will disappoint
the hundreds of thousands of consumers who have purchased MP3 players, despite
the fact that making an MP3 copy of a CD for personal use is a fair use.
Making "mix CDs" or copies of CDs for the office or car are other examples
of fair uses that are potentially impaired by copy-protection technologies.
Companies that distribute tools to "repair" these dysfunctional
CDs, restoring to consumers their fair use privileges, run the risk of lawsuits
under section 1201’s ban on circumvention tools and technologies.
Rep. Rick Boucher, "Time to Rewrite the DMCA," CNET News, Jan. 29, 2002.
Dan Gillmor, "Entertainment Industry\'s Copyright Fight Puts
Consumers in Cross Hairs," San Jose Mercury News, Feb. 12, 2002.
Gwendolyn Mariano, "Copy-Protected CDs Slide Into Stores," CNET News,
Feb. 12, 2002.
Jon Healey and Jeff Leeds, "Record Labels Grapple with CD
Protection", Los Angeles Times, November
29, 2002, C.1. (subscription required for full article)
Fair Use Tools Banned
We are entering an era where books, music and movies will increasingly
be "copy-protected" and otherwise restricted by technological means. Whether
scholars, researchers, commentators and the public will continue to be able
to make legitimate fair uses of these works will depend upon the availability
of tools to bypass these digital locks.
The DMCA’s anti-circumvention provisions, how–ever, prohibit
the creation or distribution of these tools, even if they are crucial to
fair use. So, as copyright owners use technology to press into the 21st century,
the public will see more and more fair uses whittled away by digital locks
allegedly intended to "prevent piracy." Perhaps more importantly, no future
fair uses will be developed—after all,
before the VCR, who could have imagined that fair use "time-shifting" of
television would become common-place for the average consumer?
Copyright owners argue that these tools, in the hands of copyright
infringers, can result in "Internet piracy." But the traditional answer for
piracy under copyright law has been to seek out and prosecute the infringers,
not to ban the tools that enable fair use. After all, photocopiers, VCRs,
and CD-R burners can also be misused, but no one would suggest that the public
give them up simply because they might be used by others to break the law.
DeCSS, DVD Copy Plus and DVD CopyWare
Fair use tools have already been yanked off the market. In the Universal
v. Reimerdes case, discussed above,
the court held that Section 1201 bans DeCSS software. This software decrypts
DVD movies, making it possible to copy them to a PC. In another case, 321
Studios LLC has filed a declaratory judgment action in San Francisco after
being threatened with DMCA liability by the MPAA for distributing DVD Copy
Plus, which enables DVD owners to make copies of DVD content. The major
motion picture studios have since counter-sued, alleging that DVD copying
tools violate the DMCA.
In a separate case, studios Paramount Pictures and Twentieth
Century Fox have used the DMCA to sue Tritton Technologies, the manufacturer
of DVD CopyWare, and three website distributors of other software that consumers
can use to make a copy of the DVDs they have purchased.
There are many legitimate reasons to copy DVDs. Once the video
is on the PC, for example, lots of fair uses become possible—film scholars
can digitally analyze the film, travelers can load the movie into their laptops,
and parents can fast-forward through the "unskippable" commercials that preface
certain films. Without the tools necessary to copy DVDs, however, these fair
uses become impossible.
Matthew Mirapaul, "They’ll Always Have Paris (and the Web)," N.Y. Times at
E2, March 16, 2002.
Lisa Bowman, "Hollywood Targets DVD- Copying Upstart," CNET
News, Dec. 20, 2002.
Paramount Pictures Corporation et al v. Tritton Technologies Inc. et al, No. CV 03-7316 (S.D.N.Y. filed Sept.17, 2003).
Advanced e-Book Processor and e-Books
The future of fair use for books was at issue in the criminal
prosecution of Dmitry Sklyarov and ElcomSoft. As discussed above, ElcomSoft
produced and distributed a tool called the Advanced e-Book Processor, which
translates e-books from Adobe’s e‑Book format to Adobe’s Portable Document
Format ("PDF"). This translation process removes the various restrictions
(against copying, printing, text-to-speech processing, etc.) that publishers
can impose on e‑Books. The program is designed to work only with e‑Books
that have been lawfully purchased from sales outlets.
The Advanced e-Book Processor allowed those who have legitimately
purchased e‑Books to make fair uses of their e‑Books, which would
otherwise not be possible with the current Adobe e‑Book format. For
instance, the program allows people to engage in the following activities,
all of which are fair uses:
it on a laptop or computer other than the one on which the e‑Book was
to access a work in the future, if the particular technological device for
which the e‑Book was purchased becomes obsolete;
an e‑Book on paper;
an e‑Book on an alternative operating system such as Linux (Adobe\'s
format works only on Macs and Windows PCs);
a computer read an e‑Book out loud using text-to-speech software, which
is particularly important for visually-impaired individuals.
EFF, Frequently Asked Questions re U.S. v. Sklyarov.
Time-shifting and Streaming Media
As more consumers receive audio and video content from "streaming" Internet
media sources, they will demand tools to preserve their settled fair use
expectations, including the ability to "time-shift" programming for later
listening or viewing. As a result of the DMCA, however, the digital equivalents
of VCRs and cassette decks for streaming media may never arrive.
Start-up software company Streambox developed exactly such a
product, known simply as the Streambox VCR, designed to time-shift streaming
media. When competitor RealNetworks discovered that Streambox had developed
a competing streaming media player, it invoked the DMCA and obtained an injunction
against the Streambox VCR product.
RealNetworks, Inc. v. Streambox,
Inc., 2000 WL 127311 (W.D. Wash. Jan.
The DMCA has also been invoked to threaten the developer of an
open source, noncommercial software application known as Streamripper that
records MP3 audio streams for later listening.
Cease and desist letter from Kenneth Plevan on behalf of
Live365.com to John Clegg, developer of Streamripper, April 26, 2001.
embed and Fonts
In January 2002, typeface vendor Agfa Monotype Corporation threatened
a college student with DMCA liability for creating "embed," a free, open
source, noncommercial software program designed to manipulate TrueType fonts.
According to the student: "I wrote embed in 1997, after discovering
that all of my fonts disallowed embedding in documents. Since my fonts are
free, this was silly—but I didn\'t want to take the time to… change the flag,
and then reset all of the extended font properties with a separate program.
What a bore! Instead, I wrote this program to convert all of my fonts at
once. The program is very simple; it just requires setting a few bits to
zero. Indeed, I noticed that other fonts that were licensed for unlimited
distribution also disallowed embedding…. So, I put this program on the web
in hopes that it would help other font developers as well."
Agfa Monotype nevertheless threatened the student author with
DMCA liability for distributing the program. According to Agfa, the fact
that embed can be used to allow distribution of protected fonts makes it
contraband under Section 1201, notwithstanding the fact that the tool has
many legitimate uses in the hands of hobbyist font developers.
Cease and Desist letter sent by Agfa.
5. A threat
to innovation and competition
The DMCA is being used to hinder the efforts of legitimate competitors
to create interoperable products.
For example, Vivendi-Universal\'s Blizzard video game division
invoked the DMCA in an effort to intimidate the developers of a software
product derived from legitimate reverse engineering. Sony has used the DMCA
to threaten hobbyists who created competing software for Sony’s Aibo robot
dog, as well as to sue makers of software that permits the playing of Playstation
games on PCs. In each of these cases, the DMCA was used to deter a marketplace
competitor, rather than to battle piracy.
Lexmark Sues Over Toner Cartridges
Lexmark, the second-largest printer vendor in the U.S., has long
tried to eliminate aftermarket laser printer toner vendors that offer toner
cartridges to consumers at prices below Lexmark’s. In January 2003, Lexmark
employed the DMCA as a new weapon in its arsenal. Lexmark obtained a DMCA
injunction banning printer microchip manufacturer Static Control Components
from selling chips it claimed were "technology" which "circumvented" certain "authentication
routines" between Lexmark toner cartridges and printers.
Lexmark added these authentication routines explicitly to hinder
aftermarket toner vendors. Static Control reverse-engineered these measures
and sold "Smartek" chips that enabled aftermarket cartridges to work in Lexmark
printers. Lexmark used the DMCA to obtain an injunction banning Static Control
from selling its reverse-engineered chips to cartridge remanufacturers. href="#_edn8" name="_ednref8" title=""> Static
Control has appealed that decision and countered by filing an anti-trust
lawsuit. Whatever the merits of Lexmark’s position, it is fair to say that
eliminating the laser printer toner aftermarket was not what Congress had
in mind when enacting the DMCA.
Declan McCullagh, "Lexmark Invokes DMCA in Toner Suit," CNET News, Jan. 8, 2003.
Steve Seidenberg, "Copyright Owners Sue Competitors," NATIONAL LAW JOURNAL, Feb. 17, 2003.
Chamberlain Sues Universal Garage Door Opener Manufacturer
Garage door opener manufacturer Chamberlain Group invoked the
DMCA against competitor Skylink Technologies after several major U.S. retailers
dropped Chamberlain’s remote openers in favor of the less expensive Skylink
universal "clickers". Chamberlain claimed that Skylink’s interoperable
clicker violates the DMCA by bypassing an "authentication regime" between
the Chamberlain remote opener and the mounted garage door receiver unit.
Skylink reverse engineered the algorithm used by the garage door
receiver’s computer program. Skylink’s transmitter sends three static codes
which trigger a resynchronization function and open the garage door. Even
though the Skylink clicker does not use the "rolling code" sent by the Chamberlain
transmitter, Chamberlain claims that it "bypasses" its "authentication routine" to
use the computer program that controls the door’s motor. On this view, a
consumer who replaced his lost or damaged Chamberlain clicker with one of
Skylink’s cheaper universal clickers would not be allowed to "access" his
own garage. The same argument would apply equally to ban universal remote
controls for televisions.
Although Skylink defeated Chamberlain on a motion for summary
judgment, Chamberlain has sought to ban the import and sale of Skylink clickers
into the U.S. by filing a simultaneous lawsuit against Skylink and the clicker’s
Chinese manufacturer in the International Trade Commission. Whatever the
outcome of that suit, it is clear that in enacting the DMCA, Congress did
not intend to give copyright owners the right to veto the creation of interoperable,
non-copyrightable goods and technologies.
Steve Seidenberg, Suits Test Limits of Digital Copyright
Act, National Law Journal, February
Katie Dean, "Lexmark: New Fuel for DMCA Foes,"Wired, March 6, 2003:
Sony Sues Connectix and Bleem
Since the DMCA’s enactment in 1998, Sony has used DMCA litigation
to pressure competitors who created software that would allow PC owners to
play games intended for the Sony Playstation video game console. In 1999,
Sony sued Connectix Corporation, the manufacturer of the Virtual Game Station,
an emulator program which allowed Sony Playstation games to be played on
Apple Macintosh computers. Sony also sued Bleem, the leading vendor of Playstation
emulator software for Windows PCs.
In both cases, Sony claimed, then subsequently withdrew circumvention
violations against Sony competitors that had created their products by engaging
in legitimate reverse engineering, which has been recognized as noninfringing
fair use in a series of Ninth Circuit cases. Connectix, in fact, ultimately
won a Ninth Circuit ruling that its reverse engineering was indeed fair use. Both Connectix and Bleem, however,
were unable to bear the high costs of litigation against Sony and ultimately
were forced to pull their products off the market. Whatever the merits of
Sony’s position may have been under copyright, trademark, patent, or other
legal theories, the competitive efforts of Connectix and Bleem certainly
were at a far remove from the "black box" piracy devices that Congress meant
to target with section 1201.
Pamela Samuelson, "Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised," 14 Berkeley Technology L.J. 519, 556 (1999)
(discussing the Connectix case).
Testimony of Jonathan Hangartner on behalf of Bleem, Library
of Congress, Hearing on DMCA, Stanford University, May 19, 2000, pp. 221-28.
Sony Threatens Aibo Hobbyist
Sony has also invoked the DMCA against a hobbyist who developed
custom programs for Sony’s Aibo robotic "pet" dog. The hobbyist cracked the
encryption surrounding the source code that manipulates the Aibo to reverse
engineer programs that allow owners to customize voice recognition by their
Aibos. The hobbyist revealed neither the decrypted source code nor the code
he used to defeat the encryption, freely distributed his custom programs,
and made no profit. Nevertheless, Sony claimed that the act of circum–venting
the encryption surrounding the source code violated the DMCA and demanded
that the hobbyist remove his programs from his website.
Responding to public outcry, Sony ultimately permitted the hobbyist
to repost some of his programs (on the understanding that Sony will have
the rights of commercial development in the programs). The incident, however,
illustrated Sony’s willingness to invoke the DMCA in situations with no relationship
David Labrador, "Teaching Robot Dogs New Tricks,"Scientific American, Feb. 12, 2002.
Blizzard Sues bnetd.org
Section 1201 has been invoked in a federal lawsuit by Vivendi-Universal\'s
Blizzard Entertainment video game division against a group of volunteer game
enthusiasts who used reverse engineering to create free and open source software
to allow owners of Blizzard games to play the games over the Internet. The
software, a server called "bnetd," provides an alternative to Blizzard\'s
own Battle.net servers.
Both Battle.net servers and bnetd servers are available for free
and both allow owners of Blizzard games to play with each other across the
Internet. The group of volunteers decided to create bnetd to overcome difficulties
that they had experienced in attempting to use Battle.net. The bnetd software
is freely distributed, open source, and non-commercial.
Blizzard filed suit in St. Louis to bar distribution of bnetd,
alleging that the software is a circumvention device that violates the DMCA.
According to Blizzard, the bnetd software has been used by some to permit
networked play of pirated Blizzard games. Whether or not that is true, the
developers are not using the software for that purpose, nor was the software
designed for that purpose. The software has numerous legitimate uses for
owners of Blizzard games. Whatever else may be said about the bnetd software,
it is plainly not a "black box" piracy device. (EFF is representing the bnetd
EFF case archive.
Sony Attacks Playstation "Mod Chips"
Apart from using the DMCA against vendors of personal computer
emulators of Sony’s Playstation, Sony has sued a number of manufacturers
of so-called "mod chips" for alleged circumvention under the DMCA. In doing
so, Sony has been able to enforce a system of geographical regional restrictions
that raises significant anticompetitive issues.
So-called "mod chips" are after-market accessories that modify
Playstation consoles to permit games legitimately purchased in one part of
the world to be played on a games console from another geographical region.
Sony has sued mod chip manufacturers in the U.S., the U.K., and Australia. In the U.S., Sony sued Gamemasters, Inc., distributor
of the Game Enhancer peripheral device, which allowed U.S. Playstation users
to play games purchased in Japan and other countries. Although there was
no infringement of Sony’s copyright, the court granted an injunction under
the DMCA’s anti-circumvention provisions, effectively banning the use of
a technology that would permit users to use legitimately-purchased non-infringing
games from other regions.
Recognizing the anti-competitive potential of the region playback
control system, the Australian anti-trust authority, the Australian Consumers
and Competition Commission intervened in a case Sony ultimately won against
an Australian mod chip manufacturer under the Australian equivalent of the
DMCA’s anti-circumvention provisions.
Sony has argued that mod chips can also be used to enable the
use of unauthorized copies of Playstation games. But most Playstation mod
chips are not "black box" devices suitable only for piracy. The potential
illegitimate uses must be weighed against legitimate uses, such as defeating
Sony’s region coding system to play games purchased in other countries.
"Sony Playstation ruling sets far-reaching precedent,"New Scientist, Feb. 22, 2002 href="http://www.newscientist.com/news/news.jsp?id=ns99991933">http://www.newscientist.com/news/news.jsp?id=ns99991933
Sony Computer Entertainment America Inc. v. Gamemasters, 87 F.Supp.2d 976 (N.D. Cal. 1999).
Apple Harasses Inventive Retailer
When Other World Computing (OWC), a small retailer specializing
in Apple Macintosh computers, developed a software patch that allowed all
Mac owners to use Apple’s iDVD software, they thought they were doing Apple’s
fans a favor. For their trouble, they got a DMCA threat from Apple.
Apple’s iDVD authoring software was designed to work on newer
Macs that shipped with internal DVD
recorders manufactured by Apple. OWC discovered that a minor software modification
would allow iDVD to work with external DVD recorders, giving owners of older Macs an upgrade
path. Apple claimed that this constituted a violation of the DMCA and requested
that OWC stop this practice immediately. OWC obliged.
Rather than prevent copyright infringement, the DMCA empowered
Apple to force consumers to buy new Mac computers instead of simply upgrading
their older machines with an external DVD recorder.
Declan McCullagh "Apple: Burn DVDs—and We’ll Burn You," CNET
News, Aug. 28, 2002.
6. DMCA becomes
general purpose ban on computer network access
In a different type of misuse, the DMCA’s anti-circumvention
provisions have recently been utilized as a general-purpose prohibition on
computer network access. Several federal "anti-hacking" statutes already
protect computer network owners from unauthorized intrusions. These include
the Computer Fraud and Abuse Act, the Wiretap Act, and the Electronic Communications
Privacy Act. In addition, the common law doctrine of trespass to chattels
has also been widely used for this purpose. However, unlike each of these
regimes which seek to balance important public policy goals by only outlawing
behavior that meets certain conditions and causes significant financial harm
to computer owners, the DMCA contains no financial damage threshold.
Given the very specific existing statutory regimes that regulate
this type of behavior, it is clear that Congress did not intend that the
DMCA would be used in this way to create a new and absolute prohibition on
accessing computer networks in the absence of any type of copyrighted work.
Disgruntled Ex-employer Sues For Unauthorized Network Access
In April 2003, an automated stock trading company sued a former
contract programmer under the DMCA, claiming that his access to the company’s
computer system over a password-protected Virtual Private Network tunnel
connection was an act of circumvention. Pearl Investments had employed the
programmer to create a software module for its software system. In order
to complete the work remotely, the programmer connected a separate server
to the company’s server, to which he connected from a VPN tunnel from his
office. Although the contractor created a very successful software module
for the company, the relationship turned frosty after the company ran into
financial difficulties and terminated the contractor’s contract.
The company sued the contractor when it discovered the contractor’s
server connected to the its system, claiming electronic trespass, violation
of the anti-hacker legislation, the Computer Fraud and Abuse Act (CFAA) and
violation of the DMCA’s anti-circumvention provisions. Pearl claimed that
it had taken away the authorization it had previously given to the contractor
to access its system through the password-protected VPN and that the VPN
connection was therefore unauthorized. The Court rejected the company’s electronic
trespass and CFAA claims due to lack of evidence of any actual damage done.
Even though the second server was not being used by the programmer at the
time, and its hard drive had been accidentally wiped, the court agreed with
Pearl that the existence of the VPN
was a prohibited circumvention of a technological protection measure that
controlled access to a system which contained copyrighted software.
As the DMCA has no harm threshold, the anti-circumvention provisions
are open to misuse by unscrupulous companies who seek to avoid paying former
employees or contractors by revoking authority previously granted and then
Pearl Investments LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326 (D.Me., April 23, 2003).
Five years of experience with the "anti-circumvention" provisions
of the DMCA demonstrate that the statute reaches too far, chilling a wide
variety of legitimate activities in ways Congress did not intend. As an increasing
number of copyright works are wrapped in technological protection measures,
it is likely that the DMCA’s anti-circumvention provisions will be applied
in further unforeseen contexts, hindering the legitimate activities of innovators,
researchers, the press, and the public at large.
EFF would like to thank the following individuals who have helped to create
and update this publication:
the Samuelson Law, Technology & Public Policy Clinic, Deirdre Mulligan,
Nicky Ozer, and Nicolai Nielsen.
 For examples of Congress’ stated purpose
in enacting the DMCA’s anti-circumvention provisions, see 144 Cong. Rec. H7093, H7094-5 (Aug. 4, 1998); Senate
Judiciary Comm., S. Rep. 105-190 (1998) at 29; Judiciary Comm., H. Rep. 105-551
Pt 1 (1998) at 18; House Commerce Comm., H. Rep. 105-551 Pt 2 (1998) at 38.
 See WIPO Copyright Treaties Implementation Act and Online Copyright
Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 before the
House Subcomm. on Courts and Intellectual Prop., 105th Cong., 1st sess. (Sept. 16, 1997) at 62 (testimony of Asst.
Sec. of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman
admitting that section 1201 went beyond the requirements of the WIPO Copyright
 For a full description of the events leading up to the enactment of the DMCA, see Jessica Litman, Digital Copyright 89-150 (2000).
 See Pamela Samuelson, Intellectual Property and the Digital Economy:
Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Technology L.J. 519, 537-57 (1999) (http://www.sims.berkeley.edu/~pam/papers.html)
 See Professor Ross Anderson, Cambridge University, Declaration in Felten
v. RIAA (Oct. 22, 2001), describing
ways in which the DCMA is suppressing research into security weaknesses
in SDMI watermarking technology: ( href="http://www.eff.org/IP/DMCA/Felten_v_RIAA/20011022_anderson_decl.pdf">http://www.eff.org/IP/DMCA/Felten_v_RIAA/20011022_anderson_decl.pdf).
 Mainstream Loudoun v. Board of Trustees,
24 F.Supp.2d 552 (E.D.Va, 1998).
 111 F. Supp. 2d. 294 (S.D.N.Y. 2000), aff’d 273 F.3d 429 (2d Cir. 2001).
 Lexmark International, Inc. v. Static Control Components, Inc., (E.D. Ky Civil Action No. 02-571 KSF, unreported decision, February 27, 2003), available at EFF’s website at:
 The Chamberlain Group, Inc. v. Skylink Technologies, Inc., (N.D. Ill., Civil Action No. 02 C 6376). Complaint, Plaintiff’s Motion for Summary Judgment and Defendant’s Opposition to Motion for Summary Judgment, available at EFF’s website at:
 Sony Computer Entertainment, Inc. v. Connectix Corporation, 203 F.3d 596 (9th Cir. 2000).