Professional Documents
Culture Documents
Technology plays an important role in our daily lives. Every day our life,
education and business are based on the use and advancement of technology. We can not
now live normally and complete our work without seeking the assistance of technology.
Laws tried from early time to cope up with technology, and for that purpose many rules
have been put in place to deal with the legal issues posed by the use of technology.
The advances of technology can best be described as staggering. The most notable
changes that transformed our daily lives in all respect have been the advancement in
digital technologies and the internet. Computers and the internet particularly offer great
opportunities to humans to store, share and exchange ideas with other humans across the
globe. Unfortunately, the internet has not only been used for permitted purposes, but also
internet, copyright owners are worried of their inability to control their work, and for that
purpose, businesses have developed and are still developing, technological measures
aimed at protecting copyrighted works against unauthorized and illegal uses1. On the
other hand hackers and computer wizards have also created their own ways of breaking
system. Accordingly, various provisions have been and continue to be introduced into
national laws providing remedies for copyright owners where technological measures are
1
See, J.A.L Sterling, World Copyright law, 555 (2003)
1
circumvented, and in some cases providing that such activates constitute criminal
offences2.
and many scholars argues that copyright laws are going far in protecting copyrighted
work beyond the purpose of the copyright system3 that aim to make a balance between
protecting the interests of the copyright holders and allowing the public to use
This paper will try to examine and study some of the criticism addressed to the
DMCA, and other policy questions that is important to the development of copyright
laws. It is obvious that the subject of the research paper is extremely broad, and no single
article or research can address all the legal issues raised in the DMCA. It is also
touches upon many issues not only related to copyright, but other areas of laws including
possible, and to examine the subject in depth, I will not examine the DMCA in general
2
id
3
See for example Lawrence Lessig, “Free Culture, How Big Media Uses Technology and Law to Lock
Down Culture and Control Creativity”, available at http://www.free-culture.org/remixes/ , last visited on
April 11, 2007).
4
Technological protection measures (TPMs) are techniques such as encryption, watermarking and copy
restrictions that all enforce conditions upon users of digital works. The EU Copyright Directive
2001/29/EC in chapter III defines technological measure as “any technology, device or component that, in
the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other
subject- matter, which are not authorized by the right holder of any of any copyright or any right related to
copyright as provided by law or the sui generis right. See also, Ian Brown, “The Evolution of Anti-
Circumvention Law”, IRLC, vol 2, No 3 239-260- (2006).
2
technological measures, and particularly the one related to educational institutions, but
The paper is therefore divided into two parts. In part I of the paper, I will discuss and
focus on the DMCA, the various exemptions from anti-circumventions violations, and
American related case law that deals with this matter. In part II, I will provide my own
analysis, and particularly I will concentrate on the exemption provided for educational
institutions.
I will examine and analysis to what extent it correspond with the general work and
I will discuss under this heading the American position concerning technological
protection measures in the DMCA, and I will deal particularly with the following:
A. History of DMCA
It is suffice to say that all started with the adoption of the Copyright treaty in 1996
WIPO Copyright Treaty (WCT), “contracting parties shall provide adequate legal
technological measures that are used by authors in connection with the exercise of their
rights under this Treaty or the Berne Convention and that restrict acts, in respect of their
works, which are not authorized by the authors concerned or permitted by law”.
contain a similar article that state as follows “contracting parties have to provide adequate
3
legal protection and affective legal remedies against the circumvention of effective
technological measures that are used by authors in connection with the exercise of their
rights, and to restrict acts in respect of their performances or phonograms which are not
law”.
To comply with the said WIPO Treaties, both the European Union, and the United
States enacted very similar provisions to deal with the technological protection measures.
In 1998, The United States implemented the Digital Millennium Copyright ACT
(DMCA), while some later years, Europe enacted the Directive on the Harmonization of
Certain Aspects of Copyright and Related Rights5 in the Information Society6 (Copyright
Directive 2001/29/EC). I will discuss below the main sections of the DMCA that deal
Before adoption of the DMCA, there were two main positions in the US in
connection with technological protection measures. The first position is the position of
5
Article 6 of the Directive provides as follows “1. Member States shall provide adequate legal
protection against the circumvention of any effective technological measures, which the person
concerned, carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing
that objective.
2. Member States shall provide adequate legal protection against the manufacture, import,
distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of
devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or
facilitating the circumvention of, any affective technological measures”. For an explanation of the
European perspective, see, Kamiel J. Koleman “the protection of technological measures vs. the
copyright limitation”, available at http://www.ivir.nl/publications/koelman/alaiNY.html, (last
visited on April 8, 2007).
6
Nicola Lucchi, “Intellectual property Rights Digital Media: A comparative Analysis of Legal Protection,
technological Measures and New Business Models under EU and US. Laws, 53 Buffalo L.Rev. 7 (2005).
4
Hollywood, and the second one is of Silicon Valley. Hollywood and its allies wanted a
fierce and broad anti-circumvention legislation to protect the interests of the copyright
owners and businesses. On the other hand, the Silicon Valley and their allies opposed this
broad legislation because of deleterious effects it would have on their ability to engage in
The Digital Millennium Copy Right Act (DMCA) was enacted on October, 1998,
and it was said that the primarily purpose of the enactment of the Act was to implement
certain provisions of WCT and WPPT Treaties8. Also, it was said the law was a
compromise between the two extreme views providing civil and criminal remedies for
circumvention of technological measures on the one hand and giving exemption for
different parties who qualify under the Act. Two interesting questions can be asked,
whether it was important to the US to enact the DMCA to be in conformity with its treaty
obligations in the WPT and WPPT? Secondly, whether the DMCA is one sided in favor
of copyright owners on the account of the public good or whether it is really as claimed
to be a balanced Act ?
It is argued that the DMCA was not enacted to implement the US treaty
obligations and this because the US even before adopting the DMCA had several
7
Pamela Samuelson, “ Intellectual Property And the Digital Economy: Why the Anti Circumvention
Regulations Need to be Revised” available at www.ischool.berkeley.edu/~pam/papers/dmcapaper.pdf
(last visited on April 12, 2007).
8
Sheldon W.Halpern, “Fundamentals of United States Intellectual Property Law”, Kluwer Publisher, 169
(1999).
99
See for example the famous Supreme Court decision in Sony- Betamax Case where the court rules that if
the only substantial use of a technology- and presumably also a services – is to aid infringement copyright
owners concerned about infringing uses can stop its manufacture and sale. In addition, the US has a number
of other laws that regulate specific kinds of infringement – enabling technologies, including one that
protects the integrity of serial copy management system chips in digital audiotape machines. See “Pamela
5
A carefully examination of the language of the WCT and WPPT articles 11 and 18
reveals that they are of general nature, and they do not provide any specific guidelines in
how countries should go about in implementing their obligation under the treaties,
Furthermore, the matter is left to the country to determine how it should implement these
provisions.
Section 1201 deals mainly with two aspects 1) acts which circumvent
(a) (1)), and 2) trafficking in products, services and devices designed or produced for the
measures protecting any of the rights in a copyright protected work (section 1201 (b)).
Basically the DMCA distinguishes between two main measures used by the
copyright owner and these are: measures that control initial access to the work, and
measures that prevent subsequent copying from a lawfully acquired copy10. Violation of
Accordingly, I should ask, how much power does the DMCA offers to the copyright
owner who uses technological protection measures to prevent access to material available
in the public domain? Can the public circumvent this technology to use the work
available in the public domain? Will they be caught under the DMCA? Does the DMCA
offer any kind of safe guards to the public in that regard? Does the copyright owner has
6
the right to prevent access to the work where there is an access or copy control lock on
recording and a user has a right to copy or otherwise use the material in recording ?
After reading the relevant sections of the DMCA, it is obvious that they are broad
,and they might have an effect on the use of copyrighted work for future development.
For that reason, the US legislator has felt it necessary to limit the technological protection
measures that control access to copyrighted work, because an overbroad right to control
access to technological measure protected works may unduly limit public access and
therefore be detrimental to society12. This is the theory that the legislators has kept in
mind when enacting the DMCA, and drafting the relevant sections on technological
protection measures, whether the legislator has succeeded in implementing this is another
Section 1201 is not absolute, but provides for seven exemptions to the prohibition
circumvention of access and copy controls for limited purposes, others allow for the
are as follows:
12
Id at 220
13
See Marshall Leaffer, Understanding copyright, Lexis Nexis, (2005)
14
[1201(d)]
15
[1201(e)]
7
4) Encryption Research17;
7) Security Testing20
Section 1201 (d) provides an exemption for non-profit libraries, archives, and
solely to make a good faith determination of whether to acquire the work. The library
must be open to the public or to non-affiliated researchers21. The exemption applies only
if a qualifying institution cannot obtain a copy of the work by other means, presumably in
a non- encrypted form22. The copy of the work may not be retained longer than necessary
to make such good faith determination and not be used for any other purpose23.
three years to exempt the circumvention of measures that prevent the "fair use" of
copyrighted works24. The rulemaking proceedings conducted by the Copyright Office are
works are hampered by the prohibition. After the Copyright Office makes its
recommendations, the Library of Congress can create "classes of works" that users may
16
[1201(f)]
17
[1201(g)]
18
[1201(h)]
19
[1201(i)]
20
[1201(j)]
21
[1201 (D) (5) (A)]
22
[1201 (D)]
23
[1201 (D) (1) (B)]
24
[1201(a)(1)(B-E)]
8
access through circumvention without obtaining authorization from the copyright
owner.25
In the spring of 2000, the Copyright Office instituted its first terminal review of
the DMCA26. The Copyright Office sought to assess whether the conduct ban on
circumvention was actually diminishing the ability of individuals to make lawful uses of
protected works. In its restricted domain, the Copyright Office permitted access
The Copyright Office also made another review in October 2003 by exempting four new
(3) Computer programs and video games distributed in formats that have become
obsolete and which require the original media or hardware as a condition of access and
On November 22, 2006, the Librarian of Congress, James H. Billington, announced also
protection measures that control access to copyright works, as provided in the DMCA.
25
[1201(a) (1)(B)] and see, Frequently Asked Questions (and Answers) about Ant circumvention (DMCA),
available at http://www.chillingeffects.org/anticircumvention/faq.cgi#QID91 (last visited on April 11,
2007).
25
See Michael A Einhorn, “Media, technology and Copyright”, Edward Elgar, 64 (2004).
26
See Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that
Control Access to Copyrighted Works, available at http://www.copyright.gov/1201/ , last visited on April
12, 2007).
27
Id
9
Six exemptions are the most granted during a single rulemaking session. The exemptions
went into effect on November 27, 2006 and will continue through October 27, 2009.
The first exemption allows film professors to break the CSS copyright protection
technology found in most DVDs to create compilations for use in the classroom.
The second exemption deals with computer obsolescence, and allows copy controls to be
circumvented for computer software and video games that require machines that are no
longer available. This exemption was granted for the third time, and is limited to the
In its fourth exemption, the Copyright Office authorized the circumvention of access
controls for eBooks to enable blind users to use them with read-aloud software or screen
readers.
Under the fifth exemption, cell phone users are authorized to break software locks on
The sixth and final exemption allows researchers to test copy-protected CDs in an effort
to find and correct security flaws and vulnerabilities in programs and databases protected
It is important to understand the case law that relate to the DMCA, and specially the
determine to what extent courts have interpreted the relevant sections of the Act narrowly
or broadly. Broad interpretation of the sections can prove detrimental to the originally
conceived purpose of the legislator, raising new and more complicated thorny issues not
10
There are not many cases that relate to exemptions, and there no specific cases that deal
with the exemption given to educational institutions, but there are several important cases
One of these is the case of Lexmark Intl Inc. v. Static Control Components Inc, the
defendant relied on the anti –traffking provision in the DMCA, and specially 1201 (a) (2).
The court decided that the plaintiff’s argument does not hold merit, and the defendant is
In Universal City Studios Inc.v. Corely and anor. A judgment was issued against the
operator of a website for making the program DeCSS available through his website in
violation of the “trafficking” ban on circumvention devices. Corely appealed and the U.S
Court of Appeals dismissed the appeal. In dismissing the appeal, the court made the
protecting copyrighted materials is not permitted even when the materials will be put to “
fair uses” exempt from copyright liability 2) The protection afforded to copyright owners
in the DMCA is not to be construed narrowly 3) A person who buys a DVD is not
lastly 3) it has been suggested that this case does not really address the fair use exception
and, in any event, the fair use doctrine has never been held out as a guarantee of access to
copy a work , nor a guarantee that a person claiming fair use can copy the work in
question according to his or her preferred technique or, fit the matter, in the format of the
original29.
29
Ian Kerr, Ph.D, Alana Maurushat, Christian S. Tacit, and Nelligan O'Brien Payne, “Technological
Protection Measures Part 1”, Trends in Technological Protection Measures and Circumvention
11
In United States vs. Elcom Ltd and Sklyrov, on August 28, 2001, a grand jury charged
Skylyriov with five counts under the DMCA since he managed to remove the
technological protection measures from eBooks. Although the defendant was charged he
was released from Custody and allowed to return to Russia as part of the agreement
II. Analysis
There are different views by scholars on the relevant sections and exemptions of the
DMCA, and to what extent they offer balanced rights to copyright owners and the public.
Ian Brown argues that “... the USA has continued to promote broad restrictions with
narrow exemptions on circumvention acts and devices via fee- trade agreements, modeled
on its own Digital Millennium Copyright Act as a specific implementation of the WIPO
treaties”31
Professor Ginsburg on the other hand argues in favor of the technological protection
measures, she mentioned that “the US experience to date indicated that legal protection
for technological measures has helped foster new business models that make work
available to the public at a variety of price points and enjoyment options without
convention”, available at
http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/protection/tdm_e.cfm, (last visited on April 12,
2007).
30
id
31
The US has entered into several trade agreements with various countries (Jordan, Singapore, Chile,
Guatemala, Dominican Republic, Morocco, Bahrain and others) that require the protection of technological
measures. It is interesting to note that these agreements are tougher than national intellectual property laws
of the county that signed the agreement with the US. See Gwen Hinze, “ Seven Lessons from a Comparison
of the Technological Protection Measure Provisions of the FTAA, the DMCA, and recent Bilateral Free
Trade Agreements”, available at http://www.eff.org/IP/FTAA/?f=tpm_implementation.html, (last visited on
April 12, 2007)
12
endangering the “digital lockup” and other copyright owner abuses that many had
feared”.32
Various copyright professors sent a letter to US Congress stating that “the enactment of
the anti- circumvention provisions would represent an unprecedented departure into the
traditionally has fallen outside the regulatory sphere of intellectual property law33”
Another commentator goes far in declaring the DMCA is invalid and unconstitutional,
and that is because the commerce clause fails to provide the constitutional authority and
Professor Smulson on the other hand does not share that opinion and argues that “unless
the anti-device provisions of the DMCA are modified, either by narrow judicial
competition and innovation in the high technology sector”35. She provided her comments
in 1999 when there was no relevant case law that deals with the DMCA, and the
Copyright Office has not yet assigned exemptions. The question, I should ask whether the
position has changed after we have witnessed a number of cases interpreting the anti-
circumvention sections and the adoption of various exemptions by the Copyright Office?
32
Jane C. Ginsburg, “Legal Protection of technological measures Protecting Work of Authorship:
International Obligations and the US Experience”, available at
lsr.nellco.org/cgi/viewcontent.cgi?article=1017&context=columbia/pllt, (last visited on April 11, 2007).
33
Section 2.5 of the information Infrastructure Task Force, Intellectual Property and National Information
Infrastructure: The Report of the Working Group on Intellectual Property Rights, Washington: Library of
Congress 1995 (“white paper”) quoted in Hugenholtz ,
34
Thomas A. Mitchell, “Honoring David Shapiro: Note: Copyright, Congress and Constitutionality: How
the Digital Millennium Copyright Act Goes Too far”, 79 Notre Dame L. Rev. 2115.
35
Samuelson Supra note 7.
13
To what extent are the exemptions useful to the public? Do they really balance the
Basically there are two conditions for the libraries and educational institutions to fulfill in
order for them to circumvent technological protection measures and these are (1) the
library must access only for a reasonable time and in good faith in order to make a
decision about acquiring access and (2) the access so acquired is not used for commercial
really clear what constitute good faith. Good faith can be interpreted in many ways, and
educational institutions can always raise the argument that they have circumvented the
technological measure for educational purposes and fair use is allowed of course under
the Act36.
The second condition may not be needed since using the work for commercial advantage
The exemption to educational institutions as a whole may be useless and of no value and
this is because usually publishers and producers typically provide access to material for a
limited time period so that a library may make a determination about acquiring access to
Section 1201 (c) (1) of the DMCA provides as follows “ Nothing in this section shall
36
See Section 107, “imitations on exclusive rights of the Copyright Act 1976 as amended”.
37
See Laura N. Gasaway, Anti- Circumvention: A View From Librarians and Educators, available
at http://www.alai-usa.org/2001_conference/pres_gasaway.doc , (last visited on April 11, 2007).
14
It not clear how this section relate to the exemption of the librarian and educational
institutions? Control of access given to the copyright owner can eliminate fair use of a
work and yet fair use seems to be preserved by the statute. What is the purpose of
including this section? Does it mean that access controls will not be permitted to
eliminate fair use? How libraries and educational institution exercise fair use privilege
Generally speaking the exemption is narrow, and this is because it allows the academic
determine whether they want to acquire the protected work and they are not allowed to do
that for any other purpose such as to have a copy of the work for public use.
It is not clear what is the real intention behind narrowing the exemption offered to
Society itself has some interests in the availability of copyrighted works to the public,
and little consideration has been given to the importance of this matter in the Act itself.
Some European countries appear to be broadly exempting libraries from their anti-
Also, the exemption for educational institutions applies only to Section 1201 (a) (1) (A)
and not to section 1201 (a) (2) (B). Although it is clear that the intention of the Legislator
not to allow educational institutions to offer to the public or provide technology that
circumvent a technological measure, but can they manufacture and use certain
technologies for their own purposes and not for the public? The Act is not totally clear
and most likely they are not allowed to do that under this section.
38
See Laura N. Gasaway, Anti- Circumvention: A View From Librarians and Educators, available
at http://www.alai-usa.org/2001_conference/pres_gasaway.doc , (last visited on April 11, 2007).
15
Educational institutions can not obtain the assistance of someone not working with them
and they must circumvent the technological protection measure according to the Act on
their own, and this may not be useful for some of the educational institutions that do not
have a particular expertise and knowledge with the science of decryption and
circumvention.
The good thing is that section 1204 (b), excludes criminal liability for educational
As for the general exemption clause given to the Copyright Office, there are some
problematic aspects with the present administrative process in determining the exemption
permitted to access circumvention. First, the Copyright Office has assigned exemptions
consumer tastes and capabilities39. A clear look at the different exemptions provided by
the Copyright Office will allow us to conclude that they are not related to each other and
they are given loosely without any specific policy in mind. The Copyright Office analysis
and chose is made based on the existing devices and this may be problematic that a great
number of innovative uses or devices have not been emerged, and might never emerge40.
Concluding Remarks
Directives, and the DMCA leave unanswered question as their exact meaning and scope.
One of the main purposes of copyright is to ensure that the right holders are able to obtain
adequate compensation for their efforts, thus giving them the incentive to create41. The
39
See supra note 25 Enihorn at 56
40
id
41
See supra note at 220
16
public must use the work for advancement of intellectual creativity and this can not been
done if the public can not access and use the work. Achieving the balance between these
two extremes is the main purpose of having a copyright system. Copyright holders are
using technology and laws to protect their rights to the fullest extent possible, and this is
evidenced by the various laws that have been issued on the national and international
level. The DMCA is one of the toughest laws that have been implemented so far to
protect the interests of the copyright holders who are using technological measures to
protect their work. This is true since it offer more protection than what is required under
WPPT and WPT treaties. It was thought that including certain exemptions on
circumvention of technological measures would restore the required balance between the
interests of the public and copyright owners, but this actually did not happen.
Exemptions brought to the front point more questions than they intended to bring when
they were drafted, the Copyright Office understood the matter and this why they
intervened from time to time to allow other exemptions for the general and public good.
They have surely introduced good exemptions, but their work is not yet complete and
they have to take into consideration the interests of the consumers and the different
devices that are available in the marker now or will be available later. Accomplishing that
is not an easy task since technology are developing very rapidly and what is available and
used today may not be used tomorrow and consumer tastes differ substantially. So, what
is the solution and what we should do in going around this problem? No specific answer,
laws take different prospective, but generally speaking, we can say that overboard legal
protection for technological measures can have serious implication on the copyright
system, including the educational and technology sectors. To restore the balance between
17
the interests of the copyright owners and the rights of the public to access information
that benefit society, the anti-circumvention provision should provide exemptions that are
clear and minimalist at best. The exemption of educational institutions is very important
and should not be restricted since this will be detrimental to the interests of the society
and the general public purpose of these institutions. It will remain to be seen in the
upcoming years to what extent are the laws and the courts ready to take into account the
interests of the public and restore the balance that the copyright system has failed to
achieve.
18