The Digital Millennium Copyright Act and Access to Copyright
In 1998 Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation in regards to copyright and the burgeoning digital market. Enforcement of copyrights was greatly expanded and providers of online services were granted specific protections so that their liability would be severely limited in instances where copyright was violated by users of the online service rather than the providers. The relevant legal section is 17 USC § 1201(a)(1), wherein it is stipulated that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The simple reading of this statement is that if a corporation has put some technologic feature into their product that limits access to the product, it is illegal for anyone to find a way around that protection. If we pretend that digital copyrighted material is a physical object for a moment, then this section of the DMCA is effectively protecting the lock on the door that leads to the room where that the material copyrighted would be stored. The basic idea behind the section was that it would seriously deter the piracy that has plagued many digital distributors, especially the video game industry. However, circumvention of access has never before been an issue in terms of copyrights and thus it is unclear where exactly this section fits in regards to copyright law because while circumventing existing protection of a product is as a violation of DMCA, it is not itself an act of copyright infringement.
One area where this matter becomes extremely complex is how the law deals with existing fair use policy or, more accurately, how the law does not speak satisfactorily on the subject of fair use policy. Determining whether or not fair use, which allows the reproduction of certain copyrighted material without permission in certain instances (usually for reasons such as journalism or satire), is an acceptable justification for circumventing protection polices has been of great importance to critics of DMCA who have noted that the legislation lacks any specific reference to how these rules fit in with existing fair use policy. This lack of clarity on the intersection of anti-circumvention protections and fair use has thus far been the biggest point of contention for many of the act’s most fervent critics. As the non-profit digital rights advocacy organization Electronic Frontier Foundation argues in regards to § 1201: “the DMCA has become a serious threat that jeopardizes fair use, impedes competition and innovation, chills free expression and scientific research, and interferes with computer intrusion laws.” Fair use is briefly referenced in 1201(c)(1) of the DMCA, but its language is unclear and there is nothing else in the bill to make explicit whether or not fair use is a legitimate legal defense for circumvention of protection technologies. Confusion over which interpretation of the law is correct has reigned at the courts as well, and for every case where a judge has upheld fair use as a defense of anti-circumvention law, there is another case of a judge dismissing it. In Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc., the court ruled that anti-circumvention laws are only violated if copyright is infringed while in the case of Universal City Studios v. Reimerdes, a separate court ruled that whether or not copyright infringement had occurred was irrelevant to the law, saying: “[i]f Congress had meant the fair use defense to apply to such actions, it would have said so.”
These issues are relevant to a dispute between Warner Brothers Entertainment and Apogee Inc., with Warner Brothers claiming that a number of Apogee’s products, such as the Kanex ATVPRO AirPlay, violate the anti-circumvention legislation of DMCA. They assert that their copyrighted works a technological protection called high bandwidth digital content protection (HDCP) and that products such as the Kanex ATVPRO circumvent HDCP by allowing owner of such a product to have easier access to copyrighted work. Access to such work should, according to the company, only be allowed through Warner Brother’s produced or licensed products but Apogee’s products are not licensed. However, it is important to note that HDCP, despite being a protection technology, is not a digital rights management (DRM) product. While both have similar functions, DRM applies specifically to products that exist purely as digital files (a song existing as an MP3 file, for instance) and limits who can have access to the digital file. HDCP, on the other hand, protects the digital files that exist on a physical object, such as the video files on a DVD. HDCP limits which media players can successfully read the disk and translate the digital files into viewable images on the screen. The media (a DVD, for instance) is read by a source (a physical object such as a DVD player) that is outfitted with a single HDCP transmitter, which it uses to send the content of the media to the sink (the receiver of the information from the physical object, such as a TV set), which is outfitted with one or more HDCP receivers, which can decode the protection encryptions in order to successfully display the source’s contained media. There is also a repeater (something to physically connect the source with the sink, like a cable or audio-visual receivers), which processes the encrypted data as it is sent between the source and sink, usually for purposes of increasing or decreasing various signals from the data (like increasing the audio signal). Thus, the HDCP limits access to and usability of digital files on physical media.
Warner Brothers claims that Apogee technology circumvents HDCP, which they believe is a crime under the DMCA. However, Apogee asserts that while their technology may circumvent HDCP, copyright is not being infringed upon in anyway. The technology of the Kanex ATVPRO allows users to have greater access to copyrights material that they already own physical copies of, and does not enable them to steal the copyrighted material, only to have access to it without the need of buying costly technological upgrades. It is clear that this case fits in perfectly with the current confusion over access in regards to DMCA; one side argues that its anti-circumvention programs are being ignored and that ignoring these features endangers their copyrighted materials while the other side argues that even if the technology is being circumvented, this does not matter because copyright is not being infringed upon. Ultimately, it will be up to the courts to decide this matter once and for all, but it seems strange that corporations can use this legal loophole in order to monopolize their content through technology. Utilizing this argument, companies would be provided with protection where only their licensed technologies are legally allowed to be used in conjunction with copyrighted materials, thus limiting the scope of technological innovation by preventing outside companies from introducing their own technological devices without first paying for licensing from companies with anti-circumvention software. Such a system seems likely to impede discovery and inherently obstruct technological advancement.
Kevin James
Intern
JAFARI LAW GROUP®, INC.