Open Access News

Since they were enacted in 1998, the “anticircumvention” 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 infringers from defeating anti-piracy protections added to copyrighted works and to ban the “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 infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities:

The DMCA Chills Free Expression and Scientific Research. 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....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....Following the Felten and Sklyarov incidents, a number of prominent computer security experts curtailed their legitimate research activities for fear of potential DMCA liability. For example, when Dutch cryptographer and security systems analyst Niels Ferguson discovered a major security flaw in Intel’s HDCP video encryption system, he declined to publish his results on his website 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.”...Some foreign scientists have advocated boycotting conferences held in the United States, and some conference organizers have decided to hold events in non-U.S. locations. Russia went so far as to issue a travel advisory to Russian programmers traveling to the United States....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 principles.

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.