Four years on, digital copyright law revs up

By Scarlet Pruitt

(IDG) -- When Dmitry Sklyarov arrived at the Def Con hacker show in Las Vegas last July he had no idea that the conference would end with his highly publicized arrest. Nor did the then-26-year-old Russian programmer glean that his incarceration would stir the maelstrom of debate surrounding U.S. copyright law.

For trafficking his company's software, which removes use restrictions for eBooks that are in Adobe Systems Inc.'s eBooks format so that they can be transferred to a more portable format, Sklyarov and his employer, Moscow-based ElcomSoft Co. Ltd., were charged with violating the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act (DMCA).

"Going to the U.S., our employees had no idea that we might be accused of any American law violation," ElcomSoft President Alex Katalov wrote in an interview via e-mail. "We were not aware that our actions could somehow be put within the ambit of U.S. jurisdiction."

Sklyarov's arrest and the wave or protests that followed underscore concern over the groundbreaking legislation, which is just beginning to show its teeth in a spate of recent court cases.

Opponents of the law say that its ironclad protections against copyright infringement threaten to douse the fires of innovation and artistic expression heralded by the Internet age, and replace them with expanded and unprecedented corporate control. They paint a world in which consumers have little choice over how they use the intellectual property that they own, one in which movies, music and eBooks can only be played on one device, a world where it is forbidden to copy and share works, making libraries obsolete.

"The law basically says that if you crack a system meant to protect a copyright work, you go to jail; if you produce software for the purpose of cracking anti-circumvention measures, you go to jail," said Jonathan Zittrain, a Harvard Law School professor and co-founder of the university's Berkman Center for Internet and Society.

However, supporters of the legislation, mainly powerful copyright holders, see the DMCA as a necessity. For them, the digital age is not just a time of great opportunity, but also a time of new and previously unimaginable threats to their business. In this new era, music and movies, which require millions of dollars to produce and promote, are suddenly vulnerable to casual computer users, who can make perfect digital copies of works, for free.

The DMCA, among many other things, serves as a legal wall between digital copyright protection and those who seek to breach that protection. At the time it was passed, Congress was under heavy pressure from the entertainment industry, which was quickly realizing the extent of its vulnerabilities amid rapid technological advances.

Seeing that something had to be done to protect their intellectual property, groups like the Recording Industry Association of America Inc. (RIAA) and the Motion Picture Association of America (MPAA) lobbied hard for new copyright law to protect them from digital interlopers.

"Our objective throughout was to provide a means for us to protect content in the digital environment knowing that more and more we would have to rely on technical protection measures," said Fritz Attaway, executive vice president of the MPAA.

And Congress heeded the call. The DMCA not only outlaws the circumvention of security measures, it also prohibits the trafficking of circumvention tools, as well as the dissemination of information on how to bypass copyright protection.

But opponents of the DMCA claim that Congress went too far, saying that while the U.S. public was engrossed in the Bill Clinton-Monica Lewinsky affair, another far-reaching scandal was playing out in Congress.

"Congress was willing to set guard dogs -- paid by the government -- around anything that private industry could come up with to protect works even if those protections were excessive," Zittrain said.

For Katalov, the law is not only excessive, but unclear.

"Reading the statute, it is not clear which kind of devices it intended to outlaw and which tools are permitted," he wrote. "Therefore, the persons concerned are often not able to foresee whether their conduct will be considered illegal or not.

Copyright holders, meanwhile, claim that they could not provide the content that consumers enjoy on the Net without the DMCA.

The legislation was supposed to ensure that there was incentive for artists to create works, which would then be safe in digital form, according to Mitch Glazier, senior vice president of government relations and legislative counsel at the RIAA.

"(Anti-DMCA groups) have the point of view that in a digital environment there should be no rules and that people should be able to do whatever their equipment is capable of doing," Glazier said. "But in order for there to be a marketplace, there has to be rules of the road."

It is probably no surprise that the entertainment industry would lobby for such sweeping protections given its decades of experience battling piracy. If the industry thought piracy was a formidable threat to business before, the pirating opportunities that come with the digital age must have thrown it into a tailspin. After all, the threat of a user copying a cassette tape to give to a friend, pales at the specter of millions of Napster Inc. users trading perfect digital copies of copyright music, daily and for free.

"(Critics of the DMCA) don't view the Internet as a place for commerce, or as a marketplace. They see information as being free," Glazier said.

But DMCA foes claim that what they want is not necessarily free content, but fair use of content.

Many of the problems with the DMCA's anti-circumvention provisions arise from its treatment of fair use exemptions, according to opponents of the legislation. Fair use rights, such as being able to photocopy pages of a book or quote lyrics to a song, form the backbone of traditional copyright law.

While the DMCA does provide some fair use exemptions, critics argue they are so narrow, or implausible, that they may never even be used. Take one exemption to the "you hack, you go to jail" rules meant to be offered as an olive branch to the libraries. That exception says that an employee of a nonprofit, library, archive or educational institution can legally circumvent the encryption of a copyright protected work if no other identical copy of the work is reasonably available to them, and if they are hacking it for the sole good faith purpose of seeing whether they want to purchase a copy of the work.

"This is a mockery of our laws. It's a complete joke," Zittrain said of the exemption. "The fact that Congress solemnly inserted this provision that will be used over the next 25 years exactly zero times ... makes me embarrassed to say that I am a law professor in the U.S."

Sklyarov's case exemplifies concerns anti-DMCA groups have with the law's lack of fair use provisions. After all, the software he and his company were charged with trafficking in, called the Advanced eBook Processor, allows owners of eBooks in Adobe's eBook format to circumvent protection measures so that the books can be transferred from a PC to a laptop or PDA, or be printed out or read in other formats.

Because the DMCA limits users' ability to share and copy works, some opponents claim that it is unconstitutional and threatens to unravel the entire copyright system.

"If somebody designs a system that doesn't even allow you to lend a work, like an eBook that can only be played on one computer, you can't lend it out as a library!" Zittrain said.

These aren't the only complaints that some have with the DMCA. Opponents of the legislation also contend that its anti-circumvention measures stifle academic and scientific research. They point to another recent case, that of Princeton University professor Edward Felten, who was threatened with a lawsuit if he presented results from a Secure Digital Music Initiative (SDMI) hacking challenge.

Felten and his research team were one of two groups that claimed to have successfully broken through the digital watermark technology SDMI put forth during a much-publicized hacking challenge. But before he and his team were scheduled to present their findings at a conference in Pittsburgh last April, Felten said he came under pressure from the SDMI and RIAA, which threatened to sue him for violating the DMCA's provisions against distributing information on how to bypass copyright protection measures.

When privacy and free speech groups made a stink, the threats were recanted but Felten decided not to present the research, for fear that he would be charged under the DMCA. For critics of the law, the damage had already been done and the message the case sent was clear: the DMCA chills free speech and thwarts research.

"(With the DMCA) you have the sword of Damocles," Zittrain said. "And the threat there is that it hangs, not that it drops. In that case, you might have a lot of people whose behavior is altered by the law.

"To me, Congress would have been wise to say 'If you build a system that approximates the balance of rights with copyright itself, we'll protect it. If you go overboard, you are on your own,'" Zittrain said. "It would have been a harder act to create because it would have had a gray zone ... but that's what we pay legislators to do -- to write subtle legislation."

Subtle doesn't seem to be the name of the game for the entertainment industry, which views the problem of copyright infringement in black and white.

"At the heart of unauthorized use ... is consumer use and you can't station a copy policeman in everyone's living room and any technical measure can be circumvented," said the MPAA's Attaway, explaining why anti-circumvention legislation is crucial to his industry.

But civil liberty groups, fearing that the DMCA already polices too much, have begun to organize against the law, both in court and at a grassroots level.

Anti-DMCA groups have adopted Sklyarov's case as an example of what happens when a bunny gets caught in a bear trap, although charges against the programmer were dropped in exchange for his cooperation in the case against his employer, ElcomSoft. The Electronic Frontier Foundation (EFF), along with a handful of civil liberties groups, are fighting the case on the grounds that the DMCA is unconstitutional, impinges on free speech and stymies research.

Meanwhile, ElcomSoft's Katalov warns that other programmers could unwittingly fall victim to the DMCA.

"All foreign software companies will be under potential threat unless provisions of the DMCA are amended or any clarifications (that) establish single interpretation of the language used in the statute are made ... otherwise, it is advisable to foreign programmers to avoid going to the United States," he wrote.

Critics of the law also hope to shoot down the DMCA's rules against distributing information on how to circumvent copyright protections, claiming that it violates free speech rights.

Saber rattling is also taking place in Congress where Rick Boucher, a Democrat from Virginia, is leading a charge against the anti-circumvention provisions of the DMCA. Boucher and other critics of the law want to retool the legislation, so that violation of it is based on copyright infringement rather than circumvention.

In a recent address to Congress, Boucher said that several legislators made an effort to curb the DMCA's anti-circumvention provisions when the law was passed in 1998, but "the momentum to enact the measure essentially unamended was too strong, and our effort fell short."

Even while some members of Congress are trying to right perceived wrongs in the legislation, others are attempting to build upon the DMCA. Boucher's would-be foil, Senator Fritz Hollings, a Democrat from South Carolina, introduced draft legislation last September that would effectively expand the DMCA to hardware by calling for copy-protection measures to be embedded in almost all PCs and electronic consumer devices. The draft legislation, called the Security Systems Standards and Certification Act (SSSCA), has so far met fierce opposition from civil liberties groups due to the restrictions it would place on how consumers use digital content.

For the entertainment industry, however, the more control, the better.

"We appreciate what Senator Hollings is doing," said the RIAA's Glazier. "At least he is out there, having people come to the table and negotiate." While Glazier said that privately adopted standards are preferable, if the government needs to step in to form consensus, then the group is open to that too.

"There will always be a piracy problem and there will also be people who don't care about the rights of other people," Glazier said.

And there's the rub. Opponents of the DMCA would most likely say the same thing about the entertainment industry's approach to users' rights.