DMCA: A vague, out of date Act

February 29, 2008

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also supposedly heightens the penalties for copyright infringement on the internet. It’s been in affect for a decade now, but outside of IT I never hear about this. The idea is that the DMCA is to better protect copyright holders, but a provision of this act is that if you believe your copyright is being infringed by a post (for example YouTube video) and you send a cease and desist notice to the domain (i.e., youtube.com) then they are required BY LAW to immediately remove that post without contacting the person who posted it. Let me reiterate, the person who posts the song, video, article, book, poem, etc… is never warned that the work is being taken off line. Part of the problem of the DMCA having too much control is that it immediately forces the website owner to take down any information without proving infringement, which is a huge deal especially in education. The DMCA essentially silences educational researchers, teachers, critics, etc…

Three demands of the public in relation to copyright include:

Fair use is the right to make unauthorized copies of works for certain protected purposes - mainly for academics, reporting, or criticism. When a student quotes a book in a high school paper, she is making a fair use, and can’t be stopped by the copyright owner.
First sale is the right to sell a copy over and over again, once it is made, as long as you don’t make any new copies. When you read a book, then sell it to a used book store to be bought and read by someone else, you’re exercising your rights under first sale.
Limited time - copyrights are granted for a limited time. After that time expires, the work goes into the public domain - it can be copied and used by anyone, for any reason.

The DMCA strives against this. The provision says that it is illegal to circumvent access protections to content and to manufacture or make available things that circumvent the protections. An example of this is third party toner cartridges, for example.

Now Section 1201(a)(2) provides:
Distribution of circumvention tools is likewise prohibited, with the same or similar exceptions. Section 1201(a)(2) provides:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

So essentially if you attempt to create anything with or WITHOUT intent of infringing on copyright, you are pretty much breaking the law and can be sapped of hundreds of thousands of dollars. Look, I am all for policies, rules, etc… but my problem is two fold. 1.) People who make rules really vague so they can interpret them however they want. 2.) People who make rules who have no clue at all how those rules affect other areas (e.g. EDUCATION!).