The "other" DMCA

Critics say it's simply a legal sword the government can use to slice away at fair use, but Doug Isenberg writes that the DMCA, while not perfect, nonetheless helps protect many Internet companies.

4 min read
The Digital Millennium Copyright Act--a revision to U.S. copyright laws--has taken a real beating recently, thanks in large part to a high-profile case against a sympathetic computer programmer branded as a criminal hacker.

Despite this case, the DMCA is, at least in part, a useful law that benefits e-commerce. The problem is that the DMCA is a very lengthy law and many press accounts and Netizens have focused lately on only one portion of it, thereby tarnishing the whole law as a legal mistake.

The DMCA has been in the news because it is at the center of the U.S. government's criminal case against Dmitry Sklyarov of Elcomsoft, a company that produces a program known as the "Advanced eBook Processor." The program allegedly is primarily used to circumvent limitations placed on e-books by publishers and distributors (such as technological restrictions that prevent copying). Sklyarov was arrested in July while attending the Las Vegas Def Con convention and has since been indicted on five counts of copyright violations.

The U.S. Department of Justice has said Sklyarov is the first person indicted under the DMCA since Congress passed the law in 1998.

The DMCA contains what are commonly referred to as "anti-circumvention" provisions; that is, laws that make it illegal to sell products that--among a number of other technical and legal requirements--are primarily designed to bypass technological measures that protect copyrighted works. For violating the DMCA's anti-circumvention provisions, Sklyarov faces a maximum criminal penalty of up to $500,000 and five years in prison.

Sklyarov's case has generated interest for a number of reasons. The most vocal critics have said simply that the DMCA's anti-circumvention provisions should not exist because they unfairly trample on legitimate legal rights, such as the right of "fair use" under the copyright law, which allows limited copying.

Unfortunately, though, much of the criticism of the DMCA has failed to note that it is addressed to only one part of this broad law. For example, immediately following Sklyarov's arrest, the Electronic Frontier Foundation issued a press release widely condemning the DMCA, saying, "(T)he Digital Millennium Copyright Act...is proving itself to be as harmful to civil liberties as we predicted it would be."

This type of far-flung criticism is unwarranted. Regardless of what one thinks of the controversial anti-circumvention provisions, they comprise only one part of the DMCA. These provisions make up only one of the DMCA's five titles. Although some portions of the law are more relevant to high-tech legal issues than others (one particularly misplaced title relates to copyright protection for vessel hulls), at least some of the non-anti-circumvention provisions are proving useful and relatively uncontroversial and should not be sullied by the same criticism intended for those prosecuting Sklyarov.

One recent case--which received much less attention than Sklyarov's--makes this clear. In September, eBay prevailed in a decisive ruling in a case that relied on the DMCA. eBay had been sued for copyright infringement by a man named Robert Hendrickson, who alleged that eBay users were selling pirated copies of a documentary called "Manson," to which Hendrickson claimed rights.

While participation in someone else's direct copyright infringement can be illegal (just ask Napster), the DMCA creates an important exception for "service providers" that meet certain requirements. Without this exception, countless Internet publishers and other online companies would face the impossible task of policing everything that occurs on their watch. For example, without this part of the DMCA, Web-hosting companies could be held responsible for every site on its servers that has illegally copyrighted material. Clearly, this is a burden that the provider of the Web sites--not the sites' hosts--should bear.

Under the DMCA's "Online Copyright Infringement Liability Limitation Act," service providers are not liable for copyright infringement committed by others if they "expeditiously" remove the infringing material after receiving notification from the copyright owner. In the eBay case, the online auctioneer argued that it could not be held responsible for copyright infringement as a result of sales of the "Manson" documentary because Hendrickson had not notified eBay properly according to the terms of the DMCA. The court agreed.

The case involved more than a mere technicality under the DMCA. Although Hendrickson had sent a letter to eBay about the allegedly infringing items, he failed to specify the item numbers, to describe the items in detail or to describe his copyright interest in the videos--all as required by the DMCA. By failing to do so, eBay was unable to determine whether his claims were legitimate and, if so, which items it should delete from its listings.

If the DMCA did not require someone like Hendrickson to provide this information, every Internet company would waste valuable time trying to determine whether a claim of copyright infringement is legitimate or a devious demand from someone trying to disrupt lawful online activity. For this reason, the DMCA--or, at least, a portion of it--fulfills Congress's expectation, stated three years ago, that the law will "facilitate the robust development and worldwide expansion of electronic commerce, communications, research and development, and education."

That's a rather broad expectation, and maybe an overstatement about the importance of the DMCA. But one thing is clear: The Digital Millennium Copyright Act, while not perfect, helps protect many Internet companies; it is not just a sword the government can use to slice away at fair use.