|Frequently Asked Questions||More than 52000 members|
Definitely not. None of the rights that we are advocating would make it legal to steal music or movies. In fact, history has shown us that robust fair use rights can actually benefit the content industry. For example, the content industry bitterly opposed VCRs, arguing that they infringed on their copyrights for movies. The head of the MPAA even compared the VCR to the Boston Strangler. However, the sale of video tapes now represents a large source of revenue for the movie studios.
Definitely not. None of the rights that we are advocating would cause artists to lose control over the public or commercial use of their works.
In fact, most of the problems that artists face in the digital world have little to do with technology. Even the new legal music services provided by the major labels have caused artists to lose control over their creations.
Absolutely. The anti-circumvention provisions of the DMCA hinder innovation in a number of ways. Devices such as VCRs and portable MP3 players might not exist today if anti-circumvention laws had been in place when they were released. (An injunction against portable MP3 players was lifted just two days before the DMCA was signed into law.)
Anti-circumvention laws can also be used to prevent competition. If copy protections cannot be circumvented, then it is impossible for computer scientists to "reverse engineer" software or devices in order to build compatible products. For example, if computer vendors had not been allowed to reverse-engineer certain computer chips, IBM would have remained the only producer of personal computers. Dell, Compaq, and Gateway would have never existed.
In addition, anti-circumvention laws can be used to prevent interoperability. Microsoft's networking protocols are proprietary and undocumented, so reverse engineering is required in order to allow Macintosh or Unix machines to communicate with Windows machines. The free Samba product (which allows Unix machines to share files with Microsoft machines) could not be created under the DMCA.
The DMCA can even be used to silence discussion and criticism about a company's products. Microsoft invoked the DMCA in order to shut down internet bulletin boards that contained unfavorable discussions of its products.
Section 1201(f) of the DMCA states that "a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs." Doesn't this solve the reverse-engineering problem?
This exemption is inadequate for several reasons. First, reverse-engineering has many legitimate uses beyond strict interoperability that are not allowed by the DMCA. Significantly, one might reverse-engineer in order to build a competitive product, but such reverse-engineering is not permitted. Other legitimate uses that are not exempted include: verifying proper operation of a program; discovering undocumented features; or correcting bugs in the external specifications of an application.
Second, "interoperability" is narrowly defined by the DMCA as meaning "the ability of computers to exchange information, and of such programs mutually to use the information which has been exchanged." By restricting interoperability to information exchange, the DMCA excludes other legitimate types of interoperability such as API-level replacements for computer libraries.
Third, the DMCA only exempts reverse-engineering for computer programs, not for network protocols or hardware devices.
Fourth, while section 1201(f) provides an exemption for reverse-engineering, sections 1201(a)(2) and 1201(b) explicitly prohibit the act of providing technologies that are "primarily designed for the purpose of circumventing protection". So while the DMCA offers a narrow exemption for reverse-engineering, it forbids the manufacture of the tools that would actually enable you to use the exemption!
Finally, the DMCA has clearly had a chilling effect on existing industries. For example, in the DeCSS case, the motion picture industry sued programmers who developed code that provided interoperability with DVD encodings -- exactly the type of reverse-engineering supposedly protected by the DMCA's exemption. Other examples of the DMCA chilling innovation can be found in the Adobe e-book case (where Adobe sued a Russian programmer for reverse-engineering their electronic book format) and the Microsoft case mentioned above (5.3).
For these and other reasons, a number of observers have commented that the DMCA's exemption for reverse-engineering is illusory.
Unfortunately, the increasing imbalance in copyright law is having negative effects on the ability of libraries to provide their public services. Anti-circumvention rules make it difficult for libraries to archive and loan content. Even worse, certain publishers have announced their intent to "push back" on the libraries and force them to charge patrons for accessing electronic books.