- Are you opposed to copyright protection for digital works?
- Do you support illegal copying?
- So what's the problem?
- Isn't the whole point of copyright to protect the rights of authors?
- What are some examples of the balance that used to exist?
- What are some examples of this shift in the balance of copyright?
- Copy Protection
- You're joking, right? Of course I can make a copy of a CD or record a TV show!
- But how can they stop me from copying a CD?
- Can't I always make analog recordings?
- Don't we need these "anti-circumvention" laws to protect creative works?
- But how do you prevent illegal copying if you allow circumvention technologies?
- I don't see what legitimate uses circumvention technology could have. Isn't it just a tool for hackers who want to steal content?
- So what can we do about this problem?
- The DMCA, SSSCA, and CBDTPA
- What is the DMCA?
- What's wrong with the DMCA?
- What is the CBDTPA (formerly known as the SSSCA)?
- What's wrong with the CBDTPA?
- Don't these new laws already provide exemptions for fair use?
- Couldn't we fix things by adding better exemptions to existing laws?
- The BPDG
- What is the BPDG?
- How would the BPDG's rules work?
- What's wrong with the BPDG?
- But doesn't the BPDG represent a consensus?
- Do fair use rights for consumers harm the content industry?
- Do fair use rights for consumers harm artists and creators?
- Do anti-circumvention copyright laws harm innovation?
- But I thought the DMCA had a special exemption for reverse engineering?
- Do copyright laws affect libraries?
- Alliance For Digital Progress
- What is the Alliance for Digital Progress?
- Why did DigitalConsumer join ADP?
- Some members of ADP support copy-protection technology. Has DigitalConsumer sold out?
- How will this impact DigitalConsumer's position on fair use?
3. The DMCA, SSSCA, and CBDTPA
DMCA stands for "Digital Millennium Copyright Act". The DMCA was
passed in 1998. Passage of the DMCA was motivated in part by a
perceived need to implement guidelines set by the World Intellectual
"The Act is designed to implement the treaties signed in December 1996
at the World Intellectual Property Organization (WIPO) Geneva
conference, but also contains additional provisions addressing related
The US Copyright Office's summary of the DMCA.
The DMCA makes it a crime to circumvent copy protection, even if your
purpose in circumvention is to exercise your legal rights. This means
that those rights are effectively non-existent under the DMCA. See
above for more detail: 2.1.
The "Security Systems Standards and Certification Act" (SSSCA) was a
draft bill whose stated goal was "to provide for private sector
development of workable security system standards and a
certification protocol that could be implemented and enforced by
Federal regulations." However, the scope of the SSSCA was far
greater than a simple standardization effort.
On March 21, a new version of the SSSCA was formally introduced to
the Senate as the "Consumer Broadband and Digital Television
Promotion Act" (CBDTPA).
Text of the SSSCA.
The CBDTPA (formerly known as the SSSCA) attempts to provide even
more power to content providers. Many view the CBDTPA as "DMCA
2.0". Like the DMCA, the CBDTPA makes it a crime to remove any
security technology, even when you are removing the security
technology to exercise legal rights. Furthermore, the CBDTPA
mandates that all digital devices conform to the federally mandated
security standards (including cell phones, digital cameras, and
If approved by Congress, the CBDTPA will have a number of negative
consequences. First, it will further erode fair use rights by
placing even more power in the hands of content companies. Second,
it will prevent electronics companies from building innovative new
products. Third, as a government-mandated standard, it will be
unable to keep up with the rapid pace of technology in the private
sector. Fourth, it is likely to have all of these negative impacts
without solving the real problem of organized piracy.
"As with a certain Houston energy companyís dealings with
friendly government officials, one couldnít help but wonder
where the little people stood in all of this. The answer came from
Sen. Fritz Hollings, clearly a friend of content holders. 'When
Congress sits idly by in the face of these [file-sharing]
activities, we essentially sanction the Internet as a haven for
thievery,' said the committee chairman, charging 'over 10 million
people' with stealing. Thatís where citizens stand -- not as
potential consumers, but as candidates for prison denim."
Steve Jobs says that "Unfortunately in many cases, fear is
paralyzing Hollywood's ability to seize what I believe is an
incredible opportunity. [...] We at Apple believe most people want
to be honest, and if offered reasonable choices, most people will
choose to buy their content."
Intel's executive vice president states that the CBDTPA "will
substantially retard innovation, investment in new technologies,
and will reduce the usefulness of our products to consumers."
"Enacting additional copyright-protections beyond those already
provided by the Digital Millennium Copyright Act (DMCA) is
unwarranted. Already, we have seen an unintended chilling effect on
computer security research by the DMCA. Any law along the lines of the
SSSCA might well have more far-reaching and damaging effects."
"Music and record industry lobbyists are quietly readying an all-out
assault on Congress this fall in hopes of dramatically rewriting
copyright laws. With the help of Fritz Hollings (D-S.C.), the powerful
chairman of the Senate Commerce committee, they hope to embed
copy-protection controls in nearly all consumer electronic devices and
PCs. All types of digital content, including music, video and e-books,
Yes, but only in very specific and limited cases. For example, the
CBDTPA provides just one exemption: for recording a TV show.
The DMCA provides similar limited exemptions. Libraries may circumvent
copy protection -- but only for the purpose of determining whether or
not to acquire the work. They cannot circumvent for the purpose of
archiving the content, lending it to patrons, etc. Paradoxically, the
DMCA outlaws devices that could be used for circumvention, so it is
unclear how libraries would ever obtain the technology that would
allow them to exercise their exemption.
Scientists are supposedly able to circumvent copy protection for the
purpose of encryption research. But a Princeton cryptography professor
was recently prevented from publishing his research because of
threatening actions by the RIAA.
So while the new copyright laws do provide certain exemptions, in
practice the exemptions are so narrow as to be useless for most
"Most likely, the DMCA will ensure that more works come with licenses
and with an obligation to pay for each use or access. This change
could hit libraries particularly hard, because it will challenge the
way in which libraries function as the archive of our published
"In a move that shows just how wary of free speech the recording
industry has become, a Princeton computer science professor announced
Thursday that he would not be presenting a paper that revealed how he
and his colleagues cracked SDMI -- the recording industry's chosen
method of cryptographically protecting digital music. Edward Felten,
who was scheduled to present his findings before the Fourth
International Information Hiding Workshop in Pennsylvania, explained
that threats of legal action by the Recording Industry Association of
America had persuaded him to stay silent."
There are two reasons why simply adding more exemptions won't work.
First, an exemption-based approach leaves no room for innovation. It
expects the government to figure out the entire set of possible fair
uses of technology; all others are forever illegal unless authorized
by the content industry. Many products that are legal today would
never have existed. See 5.3 for more details.
Second, it would be almost impossible to enumerate every reasonable
and fair use of all the different kinds of digital media out there
today (not to mention new kinds that haven't been invented yet). We
tried that approach with the DMCA and left out a number of
important uses -- for example, the DMCA has no exemption that would
allow blind people to extract text from an electronic book.
Congress itself affirmed that it is impossible to formulate exact
rules for fair use in the House Report on the Betamax case.
Instead of making specific exemptions that fall far short of the
rights we had before the DMCA, we need a positive assertion of a set
of general, reasonable principles. That's the goal of our Consumer
Technology Bill of Rights. It defines broad categories of rights
within the domain of personal non-commercial use, and it
decriminalizes the technology that can be used to exercise those
House of Representatives Report No. 94-1476 as quoted by the
Supreme Court. "The statement of the fair use doctrine in section
107 offers some guidance to users in determining when the
principles of the doctrine apply. However, the endless variety of
situations and combinations of circumstances that can rise in
particular cases precludes the formulation of exact rules in the
statute. The bill endorses the purpose and general scope of the
judicial doctrine of fair use, but there is no disposition to
freeze the doctrine in the statute, especially during a period of
rapid technological change. Beyond a very broad statutory
explanation of what fair use is and some of the criteria applicable
to it, the courts must be free to adapt the doctrine to particular
situations on a case-by-case basis."