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10 Years Later, Misunderstood DMCA is the Law That Saved the Web

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

If you're wondering whom to thank for the Web 2.0 explosion in interactive websites, consider sending a bouquet to Congress. Today's internet is largely an outgrowth of the much-reviled Digital Millennium Copyright Act that lawmakers passed in 1998, and President Clinton signed into lawexactly a decade ago Tuesday.

Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul. A decade ago, when the DMCA was enacted, these innovations were unheard of, embryonic or not yet conceived. Now, Google has grown into one of the world's largest companies, and its video-sharing site YouTube has left an enduring mark on public discourse. The Mountain View, California, company is one of many that openly acknowledges the DMCA's role in its success, a view shared by public interest groups.

"This was the opening shot of the digital age," recalls Art Brodsky, a writer at the time and now the communications director for Public Knowledge, a Washington, D.C.-based digital rights and lobbying group.

The DMCA(.pdf) was conceived a decade ago as the United States' implementation of an international copyright treaty called WIPO. Hollywood wanted the bill to protect its intellectual property from being infringed on a massive scale, and secured a still-troubling anti-circumvention rulethat generally prevents consumers from bypassing copy protection schemes. But history has shown that the far-more beneficial element in the law is a provision that provides ISPs, hosting companies and interactive services near blanket immunity for the intellectual property violations of their users ? a provision responsible for opening vast speech and business opportunities ? realized and unrealized.

Today, the importance of the law is rare point of agreement between civil liberties groups and the entertainment industry, which says the anti-circumvention language was the sine qua nonfor technologies like the DVD, which was in a test-marketing stage when the DMCA was signed. The DVD is now among the world's most widely acceptedadvances, fostering a new line of electronics manufacturing, and online and brick-and-mortar DVD rental outlets.

"Based on first-hand experience, the studios would not have embraced the DVD technology, at least not as quickly as they did," says Fritz Attaway, a policy adviser for the Motion Picture Association of America, and its lead lobbyist during DMCA congressional negotiations. "There was tremendous concern in releasing movies in this greatly improved format that could not be protected against duplication."

Still, the DMCA's separate notice-and-takedown provision has proven even more crucial to the growth of the internet. The provision grants immunity to so-called "intermediaries" ? ISPs, for example ? for any copyright infringement by their users. To earn that so-called "safe harbor," the intermediary such as video-sharing site YouTube must promptly remove material if the copyright holder sends a takedown notice. But the company can restore the content if the user certifies that it's noninfringing, and the copyright claimant fails to sue.

Paired with the 1996 Communications Decency Act,which provides similar immunity against noncopyright claims like defamation, the DMCA made it possible for everyone from Digg to WordPress to provide forums for users without constant fear of being sued out of existence.

"These two protections for intermediaries have been absolutely crucial for giving us the internet today," says Fred von Lohmann, an internet attorney with the Electronic Frontier Foundation. "You could not run a blog without these. You couldn't run MySpace, AOL without these two things."

YouTube spokesman Ricardo Reyes agrees. "We definitely depend on the safe-harbor provisions," he says.

Takedown Notice

But the privilege also comes with a price. The law demands intermediaries such as YouTube to take down content immediately in response to a notice, without evaluating the claim for reasonableness or accuracy, or considering the fair use rights of users. If YouTube doesn't abide by the notice, it loses its immunity and subjects itself to copyright liability.

That has opened the door to many abuses of free expression. But while speech might be limited or eliminated under faulty takedown notices, the speech itself exists in a forum that might not otherwise exist without the DMCA.

The abuses, however, run rampant.

Consider Uri Geller ? famous for "bending spoons with his mind" ? who last year had sent notices to YouTube demanding the removal of a video purportedly debunking his tricks. He didn't have the copyright but the video was briefly removed until a lawsuit got it reposted.

Last year, Viacom spammed YouTube with 100,000 takedown notices based on a general search for its shows on the site. Viacom is also seeking $1 billion in damages in a civil lawsuit against YouTube ? a major DMCA test case threatening to undermine the safe-harbor privilege.

And more recently, Universal Music issued a takedown notice to YouTube over a Pennsylvania woman's 29-second video of her toddler dancing to Prince's "Let's Go Crazy." The site removed the video, and the mother ? Stephanie Lenz ? sued the music company for abusing the DMCA, arguing that she was making fair use of the song, which is barely audible in the background of the video.

There is no bright-line rule defining fair use. The factors include how much of the original work was used, whether the new use is commercial in nature, whether the market for the original work was harmed, and whether the new work is a parody.

In a rebuke to Universal, U.S. District Judge Jeremy Fogel ruledthat the music label should have taken fair use into account before issuing a takedown notice, and allowed her DMCA-abuse case against Universal to proceed. Universal had claimed it did not need to consider fair use before issuing take down notices.

The shoot-first policy the DMCA pushes on websites has even annoyed Republican presidential candidate Sen. John McCain, who voted for the DMCA. McCain has been reusing snippets of broadcast news footage in his online campaign videos, and a variety of news outlets have been getting the videos yanked from YouTube with takedown notices.

This month, McCain's campaign asked YouTube to reconsider its automatic takedown policy, prompting a rebuke from the site's lawyers. Citing the DMCA, YouTube saidit would lose its immunity if it hesitated. "Without this safe harbor, sites like YouTube could not exist," YouTube attorney Zahavah Levin wrote McCain.

"We hope that as a content uploader, you have gained a sense of some of the challenges we face every day in operating YouTube," general counsel Zahavah Levine added.

Anti-Circumvention

The controversy surrounding the safe harbor provision is minimal compared to the DMCA's so-called "anti-circumvention" language.

The law dictates that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title" ? language that, for example, appears to block a DVD owner from copying a disc they've lawfully purchased. Because such copying can fall under the rubric of fair use, the law nullifies some consumers' rights, says ACLU lawyer Aden Fine. "One of the big problems with the DMCA is it does not take into account fair use rights," Fine says. "It seems to sort of ignore the concept of fair use."

Developing and selling DVD-rippingtools has been found illegal under the law, an interpretation now being challengedin court.

But it's not just movies and music that are wrapped up in the DMCA. Dmitry Sklyarov, a former employee of the Russian software company ElcomSoft, was arrested and jailed for three weeks in 2001 after finishing a speech at the DefCon hacker's convention in Las Vegas. Pictured here, Sklyarov was charged with DMCA copyright violations for trafficking a program he wrote that decrypted Adobe e-book files. The chargeswere later dropped in exchange for his cooperation in the government's case against ElcomSoft.

The anti-circumvention language has even been used in cases that have nothing to do with copyright. In 2002, Harvard professor Ben Edelman lost a lawsuitover his bid to decrypt the list of some 5,000 websites that the popular porn filter N2H2 was blocking. "Today, we don't know whether that porn filter works or is blocking nonporn sites," Edelman says. "The DMCA blocks me from doing research to see if the porn filter works."

And Princeton computer scientist Ed Felten, who was a witness for the U.S. government in its anti-trust prosecution of Microsoft, claimshe was threatened with a DMCA lawsuit in 2001 if he presented a paper at a scholarly workshop explaining defects in the Secure Digital Music Initiative's digital watermarks on music files.

Technology companies have even tried using the law to suppress competition. In 2003, Chamberlain Group, the maker of an automatic garage door opener, sued Skylink Technologies for manufacturing a universal remote that worked on Chamberlain's doors. The company argued that the remote circumvented the electronic handshake that controlled access to the garage door opener. Similarly, Lexmark sued under the DMCA to stop a rival from selling after-market replacement printer-ink cartridges for Lexmark printers. Both claims were eventually shot down in court.

The DMCA includes a safety valve intended to combat such abuses, but it's proven ineffective.

Under the law, every three years the Librarian of Congress revisits the anti-circumvention measures and carves out specific exceptions. In 10 years, though, that process has paved the way for only a handfulof exceptions, and they are sometimes meaningless.

An exception adopted during the last review in 2006 granted mobile-phone owners the right to circumvent the technological locks on their phones. Doing that could allow a user to switch phone carriers without buying a new phone. Yet the ruling did not require the telephone carriers to unlock their customers' phones, and marketing of the software or hardware to unlock the phones still remainsillegal.

Despite the problems and abuses, it's impossible to gauge what the internet landscape would look like today had it not been for the DMCA, which Clinton said in a signing statementwas a law "carefully balancing the interests of both copyright owners and users."

The MPAA's Attaway, who calls himself the lobbying group's "old man" for his 33 years of service, recalls that the DMCA was a compromise from the start.

"The ISPs wanted safe harbor provisions in return for their support for the anti-circumvention provisions, which was one of the major and most important compromises in this legislation," he says. "It's not perfect. But it's better than nothing."

Full post as published by Threat Level on October 27, 2008 (boomark / email).