by Jeremiah Clifton
Common Law
The Digital Millennium Copyright Act (DMCA) amended copyright law and codified DRM, but the real-world implementation and effects are determined in the courts. Judiciary attempts to interpret the DMCA have generally favored copyright holders and usually upheld the protections in statutory DRM.
Analog Hole
The “Analog Hole” refers to the ability to take media from the digital world and output it in an analog format, and then, presumably, re-digitize the content.1 This is a common way to transfer media from one format to another, and is a practiced and expected fair use of lawfully obtained digital media.
It is also common for people to want to digitize analog media. Many consumers own older analog media and want to transfer the content to a digital format. A common practice and almost cultish group of people are currently dedicating their lives to the digitizing of analog content. The government, media professionals and consumers all want their content preserved and in a current, viable format.2
In respect to this, technology and innovation rose to the occasion and Sima Products Corporation developed hardware that could take analog video signals and digitize them for routing. The problem that Sima did not realize was that by circumventing Macrovision’s Analog Copy Protection (ACP), they were marketing and trafficking devices prohibited under 17 U.S.C. § 1201 (a)(2).3 Macrovision’s ACP is a technology placed on DVDs that appears in the non-viewable area of the picture when a DVD is played and the DVD player outputs an analog signal. Its final goal is to “render videotaped copies of the analog signal so visually degraded as to be unwatchable, but to allow for unencumbered viewing directly from the DVD itself.”4 Some of Sima’s products did not retain the information that accompanied the analog signal; thus, rendering ACP ineffective.
Macrovision sued Sima in June of 2005 and the District Court for the Southern District of New York agreed with Macrovision that Sima had in fact violated provisions in the DMCA, enjoining Sima from sales of the prohibited devices.5 Sima appealed the ruling but settled with Macrovision instead of continuing the battle.6
Circumvention
Circumvention of DRM is the meat of 17 U.S.C. § 1201 and is the main reason manufacturers and people end up in court over DRM. There are cases that are settled out of court or decided for other issues of intellectual property, especially ones dealing with technology and patents, but circumvention of DRM, at least so far, seems like an ironclad case against a defendant.
Currently RealNetworks is waiting to see if the DVD Copy Control Association (DVD-CCA) will win its claim that RealNetworks is in violation of the DMCA by offering the RealDVD product. The DVD-CCA has won a temporary restraining order against RealNetworks and the release of the software, but the case is pending review in the District Court for the Northern District of California.7 The hearing was initially set to be in late November, but with that date passed, the waiting begins. According to the RealDVD website, the software lets the user make a copy of a DVD’s content onto a personal computer. Of the features advertised is that a consumer can save “movies legally, and with confidence.”8 But for now, the page also reads, “Due to recent legal action taken by the Hollywood movie studios against us, RealDVD is temporarily unavailable. Rest assured, we will continue to work diligently to provide you with software that allows you to make a legal copy of your DVDs for your own use.”9
RealNetworks is basically claiming that there is no circumvention because RealDVD uses keys granted by the DVD-CCA license for access to the protected content, and that at the end of the day, the content is still protected.10 However, the DVD-CCA claims that the license obtained from the DVD-CCA by RealNetworks does not allow copying only playing, and that copying the content of encrypted media is circumvention of DRM.11
If RealNetworks is found in violation of the DMCA, it will mean that copyright holders truly have exclusive rights to how and when their media is copied, and that the copyright holder can dictate all access and usage of all holdings by way of DRM. This is new in the way of guaranteed copyrights and does not explicitly appear in Tile 17 of the U.S. Code. It will be interesting to see this play out, and this may answer the question of what new rights, if any, did the anticircumvention provisions in the DMCA give copyright holders.
Criminal Circumvention
Even though it is criminally illegal to circumvent DRM or technologically assist circumvention of DRM,12 almost all cases dealing with DRM and circumvention are civil cases. This was not the situation for Dmitry Sklyarov, a 27 year old Russian programmer accused of, among other allegations, violating Title 17 § 1201 (b)(1)(a) of the U.S. Code.13 Sklyarov was arrested and placed in jail while visiting the U.S. for a conference in Las Vegas, and was eventually released after making a deal with the U.S. Attorney.14
Sklyarov was arrested for allegedly writing a computer program for his employer, ElcomSoft, that could read Adobe’s eBook format and convert the files, leaving them completely open to the end user. Among other things, the Adobe eBook format gave authors and publishers the ability to dictate usage and access. Elcom’s Advanced eBook Processor (AEBPR) removes the protection that the Adobe software implements, essentially circumventing the DRM.15
One of Sklyarov’s defenses was that AEBPR made eBooks available to the blind by allowing read-aloud software to access the media where with Adobe’s protection it could not. This was in essence a fair-use defense to the anticircumvention mandates in the DMCA. But during Sklyarov’s case the court brought to light that there are different standards for usage of works by end users and distributors of technology used to make use of those works. The court effectively divides the subsections of 17 U.S.C. § 1201 with regard to circumvention, and shows that in 17 U.S.C. § 1201 (a)(1)(A) and in 17 U.S.C. § 1201 (a)(2), circumvention of access control is prohibited to users and technological methods. However, 17 U.S.C. § 1201 (b) prohibits circumvention of usage control to technological methods only and not end users.16 With this distinction the court washes away Sklyarov and Elcom’s claim of fair use, stating that
circumventing use restrictions is not unlawful, but in order to protect the rights of copyright owners while maintaining fair use, Congress banned trafficking in devices that are primarily designed for the purpose of circumventing any technological measure that "effectively protects a right of a copyright owner," or that have limited commercially significant purposes other than circumventing use restrictions, or that are marketed for use in circumventing the use restrictions.17
Since Sklyarov and Elcom created and were trafficking software that circumvented use restrictions, fair use did not apply. And although the argument of fair use did not help Sklyarov, the court did make a gesture to a world where fair use provides some defense of circumvention. However, a user would need to get the circumventing technology somehow, which would be illegal.
Basic Rights v. Copyright
DRM litigation is not always a case of circumvention or copyright. At times since the passing of the DMCA, courts are asked to clarify and rule on the effects of DRM. In a case involving Sony BMG, class action complaints were filed in the Superior Court of California for Los Angeles County, the District Court for the Northern District of California and the District Court for the Southern District of New York.18 All three complaints essentially claimed that by “including a flawed and overreaching computer program in over 20 million music CDs sold to the general public, Sony BMG has created serious security, privacy and consumer protection problems that have damaged Plaintiffs.”19 The complaints pertained to the DRM software Sony BMG was using in releases of its music CDs. Two different technologies were employed by Sony BMG, both of which were shown to open users’ computers to security issues. The fundamental issue was the right to privacy. Both technologies Sony BMG used as DRM were found to be “undisclosed spyware,” and even though the End User License Agreement (EULA) said that no information would be sent to Sony BMG, experts found this not to be true.20 The EULA also made it binding that the user agree to the terms, which is normal with a EULA, but in this case, the user could not listen to the music on a computer without first agreeing to the terms – in essence, without agreeing to have the undisclosed spyware installed on the computer. In the end Sony BMG settled the suit and stopped including any form of DRM on its CDs sold in the U.S.21 However, the question to the limits of DRM and its ability to encroach upon basic rights is still largely unanswered.
Although privacy and security are important basic rights, in the United States the freedom of speech is arguably the most thoroughly protected and defended right. In a case involving Universal City Studios and 2600 Magazine, freedom of speech became a main argument in defense to alleged violation of the DMCA. Eric Corley was sued by Universal City Studios, Inc. and accused of violating the anti-trafficking provisions in 17 U.S.C. § 1201. Corley had published the computer code for DeCSS on his magazine’s website. DeCSS is a computer program able to decrypt the Content Scramble System (CSS) used by Hollywood’s major motion picture studios to encrypt the content on DVD movies. Once the studios learned that the code for DeCSS was available to the public through the 2600 Magazine site, they filed for injunction. After the District Court for the Southern District of New York granted an injunction and rejected Corley’s constitutional challenges,22 Corley appealed the ruling before the Second Circuit.23
In his appeal against the ruling, Corley renewed his claim that “the DMCA as applied to his dissemination of DeCSS violates the First Amendment because computer code is ‘speech’ entitled to full First Amendment protection and the DMCA fails to survive the exacting scrutiny accorded statutes that regulate ‘speech.’”24 The court agreed that computer code is in fact speech, but, agreeing with the lower court’s statements, decided that the “functionality of computer code properly affects the scope of its First Amendment protection.”25 Corley claimed that hyperlinking to the DeCSS code was protected by freedom of speech and used an argument that a publication’s speech directing people to a bookstore providing obscene material would receive First Amendment protection. Referring to the argument, the court states some resemblance, but notes that the instantaneous nature of the internet and World Wide Web create problems for prevention that the bookstore does not. The court goes on to state it must “choose between two unattractive alternatives: either tolerate some impairment of communication in order to permit Congress to prohibit decryption that may lawfully be prevented, or tolerate some decryption in order to avoid some impairment of communication.”26 In the end the court ruled in this instance that the "functional" aspect of the code was not protected speech, and that the DMCA “is consistent with the limitations of the First Amendment.”27
The Corley case pushed the limits of legislated DRM and found that they are vast. As with most DRM cases, there was never any accusation of copyright infringement, and even though DeCSS was a reverse engineered software product, there was never mention of industrial property rights. This case stood on DRM alone. And in this instance, DRM was given more protection than speech.28
The court was specific about the functionality of the speech determining the protection,29 but as we move to a more digital society, issues of free speech will undoubtedly be put to the test. During discussion of the DMCA in the House, Representative Frank noted that the digital age brought challenges to free speech: “It seems to me important for us to reverse this notion that electronically-transmitted speech is entitled to a lesser degree of protection in the area of freedom of expression than all other forms of speech or we will be, 30 years from now, a less free society.”30
  1. “Analog Hole.” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/issues/analog-hole. Accessed: November 23, 2008.
  2. see http://www.gpoaccess.gov/legacy/ for GPO's efforts; http://www.archives.gov/preservation/internal/ for NARA preservation efforts; http://www.historicalvoices.org/ for digitization and preservation of historical speeches; http://www.emeld.org/ for dangers in not preserving information; etc.
  3. Macrovision v. Sima, Not Reported in F. Supp. 2d, 2006 WL 1063284 (S.D.N.Y. 2006)
  4. Id.
  5. Id.
  6. “Macrovision v. Sima.” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/cases/macrovision-v-sima. Accessed: October 23, 2008.
  7. “RealNetworks v. DVD-CCA (RealDVD case).” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/cases/universal-city-studios-v-realnetworks. Accessed: November 25, 2008.
  8. RealDVD product site. RealNetworks, Inc. Available: http://www.realdvd.com/. Accessed: November 25, 2008.
  9. Id.
  10. RealNetworks v. DVD-CCA – RealNetworks Opposition to TRO. Text in PDF: Electronic Frontier Foundation (EFF) http://www.eff.org/. Available: http://www.eff.org/files/filenode//real ND Cal TRO opp.pdf. Accessed: November 25, 2008.
  11. RealNetworks v. DVD-CCA – Studio’s Motion for TRO (DVD-CCA complaint). Text in PDF: Electronic Frontier Foundation (EFF) http://www.eff.org/. Available: http://www.eff.org/files/filenode/RealDVD/studios TRO motion.pdf. Accessed: November 25, 2008.
  12. 17 U.S.C. § 1201 (2006)
  13. “US v. ElcomSoft Sklyarov.” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/cases/us-v-elcomsoft-sklyarov. Accessed: October 23, 2008.
  14. Id.
  15. “US v. ElcomSoft & Sklyarov FAQ.” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/cases/us-v-elcomsoft-sklyarov/faq. Accessed: October 23, 2008.
  16. U.S. v. Elcom, 203 F. Supp. 2d 1111, 1119 (N.D. Cal. 2002) (for ease of explanation, “technological methods” is used here [by the author] in reference to any of the listed technologies, means, etc. at 17 U.S.C. § 1201 (a)(2) and 17 U.S.C. § 1201 (b)(1))
  17. U.S. v. Elcom, 203 F. Supp. 2d 1111, 1120 (N.D. Cal. 2002)
  18. “Sony BMG Litigation Info.” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/cases/sony-bmg-litigation-info. Accessed: October 23, 2008.
  19. Various Filed Complaints against Sony BMG. Text in PDF: Electronic Frontier Foundation (EFF). http://www.eff.org/. Available: http://www.eff.org/files/filenode/Sony-BMG/sony_complaint.pdf (Cal. Super.); http://www.eff.org/files/filenode/Sony-BMG/ND_cal_complaint.pdf (N.D. Cal.); http://www.eff.org/files/filenode/Sony-BMG/NY_complaint.pdf (S.D.N.Y.) Accessed: November 25, 2008.
  20. Id.
  21. “Sony BMG Litigation Info.” Electronic Frontier Foundation (EFF). Available: http://www.eff.org/cases/sony-bmg-litigation-info. Accessed: October 23, 2008.
  22. Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000)
  23. Universal City Studios v. Corley, 273 F. 3d 429 (2d Cir. 2001)
  24. Id.
  25. Id.
  26. Id.
  27. Id.
  28. both CSS and DeCSS, as computer programs, are protected by copyright.
  29. Universal City Studios v. Corley, 273 F. 3d 429 (2d Cir. 2001)
  30. Cong. Rec. 144. H7092 (August 4, 1998)