Transcript IMPLICATIONS OF ANTI-CIRCUMVENTION RULES FOR INNOVATION

IMPLICATIONS OF ANTICIRCUMVENTION RULES
FOR INNOVATION
Pamela Samuelson, UC Berkeley, at
Computer Systems Lab. Colloquium,
March 13, 2002
March 13, 2002
Computer Systems Lab Colloquium
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OVERVIEW
• The what & why of the DMCA anti-circumvention
rules
• Examples of anti-competitive/anti-innovation
claims of DMCA violations
• Some/all of these claims seem plausible given
early DMCA decisions
• Less restrictive alternatives are possible
• The logic of the DMCA rules makes more
restrictive alternatives (e.g., SSSCA) likely
• Reasons to be hopeful
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Computer Systems Lab Colloquium
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17 U.S.C. 1201
• (a)(1)(A): Illegal to circumvent a technical
measure copyright owners use to control access to
their works
• (a)(2): Illegal to make/distribute tool to
circumvent access controls
• (b)(1): Illegal to make/distribute tool to bypass
other technical measures used by copyright
owners to protect works
• No counterpart to (a)(1)(A) for bypassing copy
controls (compromise to enable fair uses?)
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1201(a)(1)(A) EXCEPTIONS
• Achieving program-to-program interoperability
(OK to make tools too)
• Encryption research & computer security testing
(many limitations; but also OK to make (a)(2)
tools, but silent on (b)(1))
• Law enforcement/national security (right to make
tool not explicit)
• Library/nonprofit “shopping” privilege; privacy
protection; protecting kids
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MYSTERIOUS 1201(c)
1) No effect on rights & limits under this
title, including fair use
2) No effect on contributory infringement
(preserve Sony Betamax defense?)
3) No mandate to build technologies to
interpret technical measures
4) No effect on free speech/press
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LOC RULEMAKING
• LOC authorized to conduct periodic rulemakings
to determine if TPMs interfering with fair and
other noninfringing uses (in response to
library/educator concerns)
• If so, LOC can exempt from (a)(1)(A) affected
classes of users/works—but not (a)(2) or (b)(1)
• Two new LOC exemptions:
– if access control not working & have right to lawful
access
– to determine what filtering software blocks
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OTHER DMCA RULES
• 1202 protects the integrity of “copyright
management information” (e.g.,
watermarks) from alteration/removal
• 1203 gives broad remedies to successful
plaintiffs (injunctions, statutory damages,
etc.—even if no actual infringements!)
• 1204 makes willful violation of 1201 or
1202 for profit/financial gain a crime
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Computer Systems Lab Colloquium
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ORIGINS OF DMCA
• Legacy of the Clinton Administration’s NII policy
(White Paper on IP & NII in 1995)
• Theory: copyright owners need more legal
protection before they’ll make content available in
digital networked environments
• WIPO Copyright Treaty in 1996:
– Need for “adequate protection” and “effective
remedies” vs. circumvention of TPMs
– Protect CMI vs. removal/alteration for infringement
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Computer Systems Lab Colloquium
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DMCA & WIPO TREATY
• Proposed WIPO treaty would have required
nations to outlaw circumvention technologies
• Highly controversial at WIPO conference
• Compromise was intended to allow nations to deal
with as they thought best
• DMCA passed in 1998 to implement the WIPO
treaty—but far broader than required
• US officials/MPAA/RIAA to other countries:
adopt DMCA rules as best implementation
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Computer Systems Lab Colloquium
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SONY DMCA CLAIMS
• vs. Connectix & Bleem: emulation programs
bypassed PlayStation game TPMs
• vs. Gamemaster: game enhancer software
violated DMCA because bypassed country code
(gave Sony control over complementary products
& stopped competition w/ Sony’s game enhancer)
• vs. Aibohack: not a lawsuit but a threat letter to
owner of site where owners of Aibo robot dogs
posted programs to make dogs do different tricks
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OTHER ANTI-INNOVATION
CLAIMS
• Similar threat to Aibohack made against follow-on
innovators as to digital Lego system
• RealNetworks v. Streambox: enjoining “VCR” that
bypassed RN authentication procedure & allowed personal
use copies of streamed content
• Microsoft claimed Slashdot violated DMCA because users
posted instructions on how to bypass click-through license
forbidding copying or disclosure of interface specification
• Blizzard v. bnetd: open source emulation program enabled
users to form private game network; said to bypass TPM
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WHY PLAUSIBLE
• Country codes/watermarks/streaming being
treated as access controls
• Reverse engineering them violates 1201(a)(1)(A)
• Making or adapting a tool to reverse engineer
them violates (a)(2), as does making/distributing
software capable of bypassing the TPM
• No underlying act of infringement needs to occur
• Fact that no infringement is even possible may be
irrelevant!
• Sony & Lego relented—but 1201 theory plausible
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Computer Systems Lab Colloquium
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EARLY CASELAW
• Gamemaster case:
– country code held to be access control
– software that enabled playing of Sony games
coded for Japan violated DMCA
– game enhancer program that competed with
Sony software held illegal, even though no
copyright infringement occurred or was enabled
– messy facts on TM claims obscured issues
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REALNETWORKS CASE
•
•
•
•
1201(c)(1) means nothing re fair use
1201(c)(2) means nothing re contrib.
1201(c)(3) means nothing re no mandate
Bypassing authentication procedure violates
(a)(1)(A), even if no infringement thereafter
(no right to interoperate with data?)
• Other firms (Voquette) living in fear
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UNIVERSAL v. REIMERDES
• Preliminary injunction vs. Reimerdes &
Corley/2600 in Jan. 2000 to stop posting of
DeCSS on web as violation of 1201(a)(2)
• CSS held to be an access control (why not a copycontrol?) for DVD movies
• DeCSS bypassed CSS
• All statutory & constitutional defenses rejected
• Reimerdes settled; Corley (sadly) did not
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BAD DICTA JAN. 2000
• ISP safe harbor rules for copyright infringement
don’t apply to 1201 claims; ISP can be strictly
liable for user posting of circumvention software
• Corley (a mere journalist) lacked standing to raise
interoperability, encryption research, computer
security testing, or fair use defenses (even if they
might be valid as to Jon Johansen) because Corley
wasn’t trying to make an interoperable program,
do encryption research, or make a fair use
• No right to interoperate with data (DVD movie)
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Computer Systems Lab Colloquium
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RULING IN AUG. 2000
• Same analysis of 1201(a)(2)
• Shamos testified as to potential harm of
DeCSS: used DeCSS to copy movie &
distribute via Internet (DivX compression)
• Didn’t believe Johansen re DeCSS as
necessary step to developing Linux player
• Likened DeCSS to deadly plague
• Functionality of DeCSS limits 1st A scope
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UCS v. CORLEY (2d Cir. 2001)
• Praised & followed Kaplan’s analysis
• Some good news?
– Software is 1st A protected speech
(programmers express themselves in code)
– No distinction between source & object (object
code is like Sanskrit)
– More general affirmation of 1st A protection for
scientific & technical info (e.g., instructions)
– “Intermediate scrutiny” applies
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MORE ON UCS v. CORLEY
• Little discussion of statutory issues (but rejects as
“perversion” of 1st sale defense idea that users
have rights to use access-control content in
unlicensed technology)
• 1201(c)(1) does not preserve fair use, but Corley
lacks standing to raise (even if JJ was a fair user)
• Threats & dangers of Internet for content lessen
scope of 1st A protection for software (in conflict
with ACLU v. Reno?)
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INTERMEDIATE SCRUTINY
• Laws directly regulating content of speech are
generally subject to “strict scrutiny”
– gov’t must show “compelling” interest
– least restrictive means of accomplishing
• “Rational basis” for non-speech rules: reasonable
means to attain govt objective (even if weak)
• “Intermediate” for content-neutral laws affecting
speech:
– gov’t interest must be “substantial”
– law must be narrowly tailored to achieve the objective
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2d CIR. RULING
• Substantial gov’t interest in protecting copyrighted
works vs. “piracy”
• DMCA narrowly tailored because of specific
exceptions, LOC rulemaking
• Corley failed to prove sufficiency of less
restrictive alternatives than DMCA
• May be inconsistent with DVD-CCA v. Bunner,
but 2d Cir. declines to follow
• Even linking violates DMCA—no 1st A defense
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LESS RESTRICTIVE WAYS
• Special purpose anti-circumvention rules (e.g.,
AHRA, decrypt cable TV signals)
• Outlaw circumvention to facilitate infringement
• Outlaw aiding and abetting copyright infringement
through circumvention or circumvention tools
• Outlaw public distribution of technologies
designed to circumvent with the intent of
facilitating copyright infringement (RE article)
• Congress never considered less restrictive
alternatives because of intense politics
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MORE RESTRICTIVE WAYS
• Security Systems Standards & Certification Act
(SSSCA) proposed by Sen. Hollings
– Digital content won’t really be secure until DRMs are
embedded in all interactive digital technology (designed
not to play unDRM content such as MP3 files of music)
– Computer/software industry has resisted “voluntary”
standards on DRMs; SSSCA may be a credible threat to
change this industry’s tune
– Mandating DRMs by either private or public legislation
is the only way to ensure they won’t be competed away
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Computer Systems Lab Colloquium
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PRECEDENTS
• Public legislation:
– Audio Home Recording Act: serial copy management
system (SCMS) chips required in consumer grade DAT
machines
– 17 U.S.C. sec. 1201(k): future VCRs must build in
Macrovision anti-copying technology
• Private legislation:
– Content industry consortium (DVD-CCA) licenses for
DVD players require installation of CSS
– SDMI aimed to achieve similar result
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Computer Systems Lab Colloquium
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QUESTIONING SSSCA
• Overbroad & ambiguous (e.g., digital watches)
• SSSCA would impede many beneficial uses of IT
& add expense to IT systems
• SSSCA will retard innovation & investment in IT
• SSSCA may make systems more vulnerable to
hacking (can one virus take down all systems?)
• Maybe the government and the content industry
shouldn’t tell the IT industry how to build its
products
• Will rearchitecture of the Internet be next?
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REASON FOR HOPE?
• Sup. Ct. decided to hear Eldred’s appeal in
constitutional challenge to CTEA
• House leadership is not keen on SSSCA
• Rep. Rick Boucher believes in fair use and
balanced copyright law
• Courts less subject to “capture” than legislature
• “Bad” decisions may be rejected or narrowed
• People (like you?) believe in balanced copyright
rules (but collective action problem to mobilize)
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CONCLUSION
• Congress passed the DMCA thinking it was
necessary to stop “piracy”
• Content industry got a broader law than necessary
to achieve this goal—and yet they still want more
• Possible courts will decline to enjoin innovative
uses even if seemingly illegal under the DMCA
• Technology community can help to make
Congress aware of broader interests at stake (e.g.,
innovation, competition, user rights)
• Get involved; make a difference!
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Computer Systems Lab Colloquium
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