With the best of intentions in 1998, Congress passed the Digital Millennium Copyright Act ("DMCA"). The law was passed in an admirable attempt to prevent digital piracy. Few could have foreseen, however, how radically the digital media landscape has changed in the years since the DMCA was enacted. Unfortunately, the law has proven to have unintended consequences; consequences that severely undermine consumers' rights. A revision of the DMCA is sorely needed if the digital media revolution is to continue.
The unintended consequences of the DMCA stem specifically from provisions in the law that a) prohibit the act of circumventing copyright protection, and b) outlaw the manufacture, sale and distribution of tools or technology that make circumvention possible. While these protections sound reasonable, in reality, they have proven to favor media companies' interests to the near-exclusion of consumers' rights. This law has made it illegal to provide legitimate oversight of onerous and often dangerous copy protection schemes. It has had a chilling effect on security research, and most of all, it has proven ill-equipped to protect either copyright holders' or consumers' rights as the digital landscape has evolved.
Case in point: the recent and well-publicized Sony BMG copy-protection debacle. Under the DMCA, not only was it perfectly legal for Sony BMG to install a poorly written and dangerous rootkit on users' systems without their knowledge or permission, it made it illegal for Mark Russinovic, the man credited with the discovery of the flaw, to share his findings with the world. The writers of the DMCA surely did not intend to inoculate corporations from onerous and potentially harmful behavior. Nor could they have intended to make it illegal for anyone to research and publicize warnings against or steps to work around the problem. Had Sony BMG not specifically waived their right to exercise their protection against the dissemination of such information, it would be illegal for anti-virus/anti-spyware companies to research and write routines that detected and repaired the rootkit.
The Sony BMG debacle is just the latest in a string of incidents that have revealed the dark side of the DMCA. Did you know that the DMCA also makes it illegal for you to make legitimate backup copies of your personal DVDs? That it is illegal for a DVD player manufacturer to provide you with the means to fast-forward through commercials and other materials preceding the feature presentation of a DVD (so long as those materials are designated as un-skippable)? How about the fact that the DMCA makes it a crime to provide software that allows you to put copy-protected music on your iPod?
Under the DMCA as it is currently written, all of these things are illegal, yet they are certainly not aligned with consumer interests and desires. Since when is it logical that pressing the fast-forward button on your remote can send someone to jail? Since when is it right that someone who does legitimate security research could end up facing a lengthy prison sentence?
What can be done to protect our rights? Unfortunately, very little. Corporations and well-funded organizations such as the MPAA and the RIAA have been feasting at the all-you-can-eat buffet for too long. Interests are vested. Money is at stake. And history has shown time and time again that the consumer inevitably looses such battles.
All is not lost, however. There are hints and signs that some in Congress are waking up to the realities of the situation. My hope is that every single representative and senator goes out and buys a video iPod and a DVR. Then and only then will they understand the power of time-shifted media consumption. Then and only then will they experience the appeal of whenever-wherever entertainment that consumers want and will increasingly demand. Then and only then will our representatives understand on a personal level that the DMCA is tragically misaligned with the interests of the American Consumers who voted them into office.
So with the belief that knowledge is power and reform is possible only when the outcry becomes loud enough, there are things you can do:
- Write your representatives. Both the House and Senate make it easy for you to do this online. Or you can use the Electronic Frontier Foundation's form letters found in the EFF's Action Center. Either way, let your representative know how you stand on the issue.
- Learn more about the topic. The Go Deep section below provides links to various articles on the topic.
- Debate the topic. Talk about it with friends and family. Post about it in your blogs and forums.
- Here's the easiest one: continue to do what you are already doing. If you enjoy watching your favorite shows on you DVR wherever you like, continue to do so. If you like skipping commercials and unwanted trailer trash, skip them. If you like podcasts, continue to download and listen to them. If you like listening to your music whenever and wherever you want, continue to do so. The dollars you spend on these gadgets and forms of entertainment will force the market in a favorable direction. Laws will eventually and inevitably catch up.
- Fred von Lohmann's excellent one-pager entitled, "The DMCA Revisited: What's Fair" (PDF)
- The EFF's article, "Unintended Consequences: Five Years under the DMCA"
- EFF's DMCA Archive
- A proposed revision to the DMCA: HR 1201, March 9, 2005
- EFF's Sony BMG Litigation summary
- CNET Articles:
- Can video iPod lead to DMCA reform? – January 23, 2006
- Defender of the GPL – January 19, 2006
- Politicos wary of changes to copyright law – November 16, 2005
- Will Sony's DRM nightmare affect future policies? - November 12, 2005
- Here's a surefire way to stifle innovation – October 6, 2005
- Blizzard wins lawsuit on video game hacking – September 2, 2005
- Copyright lobbyists strike again – August 1, 2005
- Putting the DMCA on trial – June 20, 2005