DMCA critics say reform still needed

Rep. Rick Boucher, D-Va., who in October proposed rescinding part of the Digital Millennium Copyright Act (DMCA), said the law remains a problem even though a jury ruled a software maker ElcomSoft was not guilty of willfully violating it.

"As far as the bill going forward is concerned, the need for the legislation is as great as ever," Boucher said in an interview. "While this jury reached a commendable decision, another jury in a future case that involves similar facts could well convict. The law clearly contemplates conviction in circumstances where no infringement occurs, but the technology facilitates bypassing a technological protection measure."

By repealing key portions of the DMCA, Boucher's bill would have prevented the Justice Department from prosecuting ElcomSoft, a Russian company that sold a program to remove the copy protection from Adobe Systems' e-books. If the proposed Digital Media Consumers' Rights Act, co-sponsored by John Doolittle, R-Calif., were to become law, ElcomSoft's Advanced eBook Processor would become legal to sell.

Boucher said he will reintroduce his bill without any changes when the 108th Congress convenes in January. "The result of such a law remaining on the books is that companies will be more reluctant to introduce new technology that has lawful uses such as facilitating the exercise of fair use rights, but which also circumvents technological protection measures and could facilitate copyright infringement," Boucher said. "And so to encourage the introduction of useful technologies, the legislation is needed and it will go forward."

Currently the DMCA says that no one may sell or distribute any product that is "primarily designed or produced for the purpose of circumventing a technological measure." Some limited exceptions apply to librarians, police, people conducting reverse engineering, and encryption researchers.

But when Linux programmers wrote the DeCSS utility to play DVDs on their computers, eight movie studios sued and a federal judge and an appeals court ruled the program violated the DMCA. Ed Felten, a Princeton University computer scientist, and his co-authors were also threatened with legal action by the music industry if they published a paper describing flaws in a digital watermark system.

The Business Software Alliance, a trade association for large software makers such as Microsoft and Adobe, said it was happy the prosecution was brought.

"Although the jury decided the DMCA had not in this case been violated, we are glad that prosecutors do believe that such cases have an appropriate place in our criminal justice system," the group said in a statement. "The DMCA has clear criminal penalties that can and should be imposed in cases of direct or attempted theft of software and other digital content."

Under federal law, people who violate the DMCA "willfully and for purposes of commercial advantage or private financial gain" can be fined up to $500,000 and imprisoned for up to five years for the first offense.

Jonathan Band, a partner at Morrison and Foerster who worked to limit the scope of the DMCA when Congress was debating it, said the law is still as worrisome as it ever was.

"If Adobe had sued ElcomSoft, ElcomSoft would not have had a lot of defenses," Band said. "All Adobe would have had to prove was that they circumvented a technical protection measure. But because there was a criminal proceeding, there was a higher standard. You had to show not just a violation but a willful violation. And you had to show that beyond a reasonable doubt, not just a preponderance of the evidence. That makes it much more difficult to prevail."

Band said he applauded the Boucher-Doolittle bill. "This (verdict) does not have the slightest impact at all on civil liability under the DMCA," Band said. "The only reason the case came out the way it did was because it was a criminal case with the standard of willful violation."

The Boucher-Doolittle bill would make three changes to the DMCA, all designed to permit people to bypass copy-protection schemes for legitimate purposes:

• An exemption would be created saying anyone who "is acting solely in furtherance of scientific research into technological protection measures" would be able to distribute his or her code. That would permit Felten and other researchers--such as a programmer being represented by the American Civil Liberties Union (ACLU) in a current lawsuit--to publish their work without the threat of lawsuits.

• Bypassing technological protections would be permissible if done for legitimate "fair-use" purposes. The bill says it would not be a violation of federal law to "circumvent a technological measure"--as long as it does not lead to "an infringement of the copyright in the work."

• Creating a utility like DeCSS.exe might become legal. The bill says it would be legal to "manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work."