Intellectual Property Law

It has been almost eight years since the Digital Millennium Copyright Act (?DMCA?) became law, and throughout its relatively short life, the use of the DMCA has sparked controversy between digital content providers who are trying to protect their works from ever-easier copying and those who advocate greater access to information. One of the more contentions provisions of the DMCA makes it illegal to bypass anti-circumvention measures installed to prevent copying. In other words, hacking into a device to gain access to a copyrighted work is a violation of the DMCA.

Reports now indicate that neither content owners ? primarily consisting of the recording and movie industries ? nor greater access proponents believes the DMCA has done what it was supposed to do. As has been widely reported, digital file sharing continues to occur at an alarming rate ? at least in the eyes of the entertainment industry. Thus, the DMCA, which was supposed to greatly reduce file sharing, has had at most a negligible impact on that practice. At the same time, according to critics, the DMCA has been improperly used to squelch legitimate competition ? particularly in secondary market situations ? and has substantially undermined the fair use doctrine. Thus, while they view the world quite differently, content providers and increased access advocates are in agreement that changes must be made to the DMCA.

And Congress is listening, although not surprisingly, competing solutions have been proposed. Rep. Rick Boucher of Virginia is sponsoring legislation that would reinstitute fair use protections that would allow owners of products to circumvent anti-entry technology to make a copy for their own use or copy portions of a work to use in a review or for research ? conduct which could be illegal under the DMCA. Approaching the problem from the other direction, Rep. Michael Ferguson of New Jersey has introduced a bill that would require recordings to contain broadcast flags ? signals embedded in a medium that signals the playing device that a use is illegal ? and does not address fair use issues. The likelihood of passage of either bill is unknown at this time.

So, what is the answer? Is there any way to prevent file sharing? Can prevention be accomplished in a way that does not curtail legitimate uses? Tell us how you would solve this sticky problem.

Today's Blogger:  Bob Sloss