The following paper was written for one of my Legal Studies courses at UMass Amherst. It talks a little about how U.S. copyright evolved to where it is today, and about what has happened as a result.
Copyright in the United States was originally created ``to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'' (1) It was supposed to be a bargain between authors of works and the public: in return for making their works available for the public good, the authors would receive monetary compensation and certain exclusive rights. In this way, previous efforts could be built on by others, and authors would be encouraged to keep producing new works with the promise of compensation. Unfortunately, because of the ways in which copyright law has been legislated, the bargain has now shifted almost completely to the side of the authors. The current notion of copyright is that the author of a work has complete control over any and all uses of that work, including copying, reading, viewing, listening, and broadcasting. Under this new code, the owner of a book no longer has the right to do with it as he pleases. He can't resell it, or loan it to a friend. He can't even think about the way a certain chapter or character might have been rewritten, because that would be creating a ``derivative work'' in his mind. Just to read the book, he needs an explicit license granting him permission to read it on a pay-per-view basis. This sounds completely insane, and I'm sure all of you reading this are probably laughing at this crazy story I've made up. Unfortunately, I didn't make it up. It's called the Digital Millennium Copyright Act, and it's quite real. For this paper I wanted to figure out how copyright got to be so twisted and try to come up with some ideas of how to fight the problem.
1. Creating the DMCA
1.1 Copyright Origins
It turns out that copyright law has never really been drafted by our legislature. Copyright was originally granted by the Constitution, for the explicit purpose of furthering the arts and sciences, as I mentioned above. And back then, the word ``copyright'' actually made sense. The idea was that to get an author or scientist to publish her work, she would need to be guaranteed some means of making a profit. Since printing presses were hard to come by, physical copies of books were a valuable commodity. Thus, authors were given the exclusive privilege of making and distributing copies of their works. It wasn't Joe Sixpack they were worried about, because he had no access to a printing press and thus no means of making copies; rather, authors worried that other authors or publishers might start making copies of their works and stealing some of the profit. This was perfectly logical, and it worked well for that time period.
Unfortunately, as new media became prevalent, such as radio, phonographs and television, the old meaning of copyright didn't quite apply anymore. Rather than try to come up with a solution itself, Congress threw the individual ``stakeholders,'' authors and publishers who had vested interests in copyright, into a room and said ``Don't come out until you've made a deal you can all live with.'' While Congress must have loved this method of lawmaking, it poses some serious problems. For one, the only people that would benefit from the resulting law are those who were actually present during the negotiations. Each stakeholder in the negotiations carves out very narrow exceptions in the broader statute that are purely self-serving. The final result is a law that is drafted purely with current industries (and even then, only those that are invited to the negotiating table) in mind. Any industry that does not exist yet will have serious barriers to overcome when it finally does emerge. We should also consider that the critical question has been changed: it is no longer ``Is this a good law?'' but ``Is this a law that current stakeholders can live with?'' The consequences are disastrous. (2)
1.2 Evolution of Copyright
As expected, laws created by quarreling industries did not last long. Repeatedly as new industries emerged, negotiations had to begin all over again to accommodate them. Of course, the old industries refused to agree to anything that would take existing power away from them or grant new power to others, so the process grew more and more difficult as time went on. Most troubling is the fact that one group of stakeholders has never been represented at all: the American public. In the 1800's, this was not a problem. Everyday citizens were in no position to make copies or distribute them, so copyright didn't matter much to them. This is simply not the case today. With a VCR, anyone can make a copy of a TV broadcast or movie. The television and motion picture industries aren't too happy about that, and Sony was sued by Universal Studios, et al in 1976 over the Betamax VCR. Luckily for us, the U.S. Supreme Court ruled that individual consumers do have the right to record TV shows, copy CDs and audio tapes, and lend them to their friends. (3) Furthermore, the Audio Home Recording Act of 1992 states that individuals may legally create copies of music for non-commercial purposes. (4) However, the content industries never quite got over that loss, and as technology has progressed they have fought consumer rights tooth-and-nail. With the advent of the digital age, suddenly every citizen has become a publisher. Anyone can write a book and have it posted on the Internet in minutes. New artists can distribute their music over Napster (which is now pretty much defunct, but it is well-known so I will use it as an example) or MP3.com and be heard by audiences around the world. At the same time, people can make copies of their CDs and upload them to Napster, or make copies of DVD movies and upload them to eDonkey or any number of other filesharing networks. Since copying has suddenly become so easy and commonplace, the content industries are terrified.
Let's take a look at the situation today. Music and movie sharing have become rampant. The RIAA (recording industry) and MPAA (movie industry) want desperately to find some way to stop it. Unfortunately, the way they have gone about it has been less than ideal. The Digital Millennium Copyright Act, or DMCA, is the result of their efforts, and has some nasty consequences. It has already been established that citizens do have some ``fair use'' rights. For example, they can record TV shows, quote books, and copy CDs to cassettes for listening on the road. The content industries have come up with an ingenious solution to get around the pesky problem of citizens' rights. All they have to do is implement some sort of copy protection onto CDs, DVDs, VCRs, TVs, and electronic books that prevents anyone from reading, viewing or listening to them without some sort of authentication. Under this plan, theoretically, every time you listen to a CD, play a tape in a VCR or watch a DVD you would have to be ``licensed'' to do so. Perhaps you would need a decryption key, or your credit card number. Perhaps you would have to pay 5 USD per viewing. In fact, this scheme has already been executed. In the early days of DVD, Circuit City tried to push the Divx format, which was essentially a DVD with an expiration date. Anyone who bought a Divx disc could watch the movie once, and then the disc would become unusable, unless the buyer paid a fee to ``recharge'' it. Consumers balked, and the format was quickly retired because of the abysmal sales of Divx players and discs.
2. Copyright in the Digital Millennium
2.1 The DVD Industry
2.1.1 The Content Scrambling System (CSS)
Divx was doomed to fail. People simply could not swallow the concept of not having the right to view a movie they had paid for. Its death may have seemed like a victory for consumers, but DivX's true flaw was that it's access control was so obvious. More subtly, all major-label DVDs also have an access control mechanism. It's called CSS, the Content Scrambling System. It has nothing to do with copy protection and everything to do with *viewing* protection. Just as with Divx, you actually need to be authorized to view a DVD you own. Most people have never realized this, because the DVD players they own automatically authorize them to view the discs. Anyone who wants to manufacture a DVD player has to obtain a license from the MPAA for a CSS decryption key. This makes it difficult for anyone to enter the industry, because the costs of licensing are prohibitively high, and it also prevents certain people from even being able to play their own legally purchased DVDs. The prime example of this is the Linux operating system. An operating system is the software that all other software runs on; Windows and MacOS are both operating systems. Linux is a free operating system developed by people in their free time who like giving back to the community. Because Linux isn't the behemoth that Microsoft Windows is, no company has decided to get a license to create DVD playing software for it. And no Linux developer could possibly write one, because no Linux developer would be able to afford the CSS license. The result of all this is that anyone who uses Linux cannot view DVDs that they have purchased, simply because they don't have the ``viewing rights'' to do so. Keep in mind, CSS does not prevent the copying of DVDs. Any professional pirate will have equipment that can copy DVD discs on a grand scale. The sole purposes of CSS are to allow the DVD Content Control Authority (DVDCCA) to decide who gets to build DVD players, and who gets to watch DVDs that they have purchased.
In late 1999, an enterprising 15-year old Norwegian named Jon Johansen figured out how to bypass CSS protection on DVDs. The result, a free program called DeCSS, decrypts a CSS-encoded DVD and allows any software to use that decrypted video stream to play the movie. With DeCSS, anyone could write a DVD playing program, for any operating system. (5)
Once DeCSS was spread through the Internet, people immediately began building software to play DVDs in Linux. According to common sense, using DeCSS is not a crime, because people have the right to watch movies that they have paid for. Unfortunately, modern copyright law has little to do with common sense; this is where the ingenious part of the DMCA comes in. According to our new law, it is now a crime to bypass any method of copy-control or access-control for any reason. Period. (6) Even if breaking the protection leads to a non-infringing use (as in viewing a legally owned DVD), it is still deemed illegal by this act. The DVD Content Control Authority, with fresh egg on their faces (for reasons that will be made clear), outraged that someone would dare to play a DVD that they had paid for, filed charges against dozens of defendants for distributing DeCSS across the Internet and elsewhere, and sued 2600 Magazine for simply posting a hyperlink to the program.
Let's take a look at the first DeCSS case. On December 27, 1999, DVDCCA filed the aformentioned charges claiming misappropriation of trade secrets. It moved for a temporary restraining order and preliminary injunction against the defendants, which set a preliminary injunction hearing in motion. At that hearing, DVDCCA presented no evidence that any movie copied with DeCSS had been sold or distributed. It presented no evidence of any financial harm to it or its licensees due to republication of DeCSS. It presented no evidence that restraining the defendants from distributing DeCSS would stop millions of people all over the Internet from continuing to distribute it. It did not even identify which parts of CSS were trade secrets. Only one of the many defendants, Andrew Bunner, showed up to contest the motions. He argued that he had merely distributed information he had discovered in the public domain (the DeCSS source code), and further that there were no trade secrets at all, no evidence of misappropriation by him or anyone else, and that the First Amendment protected his free speech. The trial court swiftly ruled against Bunner and the other defendants, barring them from disclosing any information related to CSS and DeCSS. The 6th Circuit U.S. Court of Appeals reversed the injunction on the grounds that DeCSS was protected speech under the First Amendment, even if it did contain trade secrets. As this paper is being written, the case has just moved on to the California Supreme Court. (7)
Universal City Studios filed a similar complaint against 2600 Magazine for linking to the DeCSS program. Let us be clear what ``linking'' means. When a user visits a website, such as www.umass.edu, she will be presented with text and images, some of which can be used to jump to other web pages. For example, there might be a menu of options such as ``Student Information,'' ``Faculty Information,'' and so on. Each option is a hyperlink, and clicking on the link sends the user off to another page. It is possible, and common, to hyperlink to a webpage that is not owned by the person who creates the hyperlink. For example, the website www.slashdot.org is a news site that does not generally have its own articles. Each ``story'' on Slashdot is usually just a hyperlink to some other news site, such as CNN.com or MSNBC.com. Slashdot has no control over the contents of those other sites; it is merely pointing the user in their direction. In the 2600 case, Judge Kaplan ruled that hyperlinking to a website that has the DeCSS program is illegal, provided that ``those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.'' Astoundingly, the 2nd Circuit U.S. Court of Appeals upheld this unprecedented ruling. For the first time ever, not only is it illegal to distribute software that just might not be lawfully offered, it is illegal to even provide information on where to obtain it. What if, instead of a hyperlink, 2600 just distributed the URL for the DeCSS code, and people had to type in the address manually instead of clicking a link? Would that really be any different from a simple hyperlink? Judge Kaplan thinks so. He bases his entire decision on the so-called ``functional'' portion of a hyperlink that shields it from First Amendment protections. Because clicking on a link causes the computer to perform a function without further human intervention (that is, going to the destination web page), a link is not just free speech but a dangerous weapon. What if the New York Times posted a link to the DeCSS program? In the MPAA's own press releases, hyperlinks to 2600 Magazine were posted. If 2600 Magazine had hyperlinks to DeCSS, and the MPAA was hyperlinking to 2600 Magazine, then isn't the MPAA breaking the law as well?
In addition to its First Amendment challenge, 2600 also asserted that the DMCA violated fair use as guaranteed by the U.S. Constitution. The Court of Appeals flatly rejected this notion as well. The Court noted that although fair use is generally protected use, the Constitution does not guarantee that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. Further, the Court stated that no one is prevented from commenting on DVDs' content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. It's true; there is no statute that says people have the right to make fair use of a DVD in its original form. I propose that this should change.
2.2 "100% Burglar Proof"
Unfortunately, the DVDCCA's suit was not an isolated incident. Adobe, maker of the popular PDF document format, created a secure eBook reader. An eBook is simply a book designed to be read on a computer or PDA screen instead of a dead tree. What exactly is a ``secure'' eBook? To answer that question, let us examine the ROT13 algorithm. ROT13 is a simple method of coding a message that works by assigning first numbers to letters. A is represented by a 1, B by 2, C by 3, D by 4, and so on. The entire message is converted into numbers in this way, 13 is added to each number (modulo 26, meaning it wraps around back to 1), and the message is converted back into letters. So the word CAT would encode to 3-1-20 -> 16-14-7 -> PNG. Obviously, anyone familiar with the ROT13 algorithm could figure out what the original message was by simply performing the ROT13 algorithm again (remember, 13 is half of 26). So PNG decodes to 16-14-7 -> 3-1-20 -> CAT. ROT13 isn't considered a real encryption technique by anyone, because it is incredibly trivial to decrypt. The method of encryption used by Adobe's eBook reader was not exactly this mechanism, but it was equally simplistic and just as trivial to decode. Apparently using something as simple as ROT13 to encode an eBook makes it ``secure.'' The eBook protection software, known as ``E-Book Pro,'' sells for 197 USD and is advertised as ``100% burglar-proof.'' Dmitry Skylarov, a Russian teen employed by a company called Elcomsoft, visited the United States to give a lecture exposing such weak encryption schemes used by Adobe and others (one which actually used ROT13 itself!). He was subsequently arrested for violating the DMCA. It was clearly a scientific lecture, intended to allow people to read books, develop better software, and arguably to help the very parties that wanted him punished. Like the DVDCCA, Adobe had egg on its face for having such weak security when advertising it as 100% burglar-proof. In a saner world, any company that had licensed Adobe's software to protect its electronic books would have been outraged at Adobe and grateful to Skylarov for exposing the weakness.
By considering the facts of the Adobe and DVDCCA cases we can expose a major flaw in the logic of the DMCA. CSS was not difficult to crack. The security of ``E-Book Pro'' was laughably simple to break. To follow the wording of the DMCA to its logical conclusion, let's imagine that there is an access-control chip installed in all TVs that prevents viewing of non-MPAA approved channels. Let's also imagine that to allow the viewer to watch whatever he wants, all someone has to do is open a panel on the side of the TV and pull out the big red chip that has a ``DO NOT REMOVE ME'' sticker on it. The only tool necessary would be an ordinary screwdriver. Under the DMCA, the screwdriver is now illegal because it is a ``circumvention device.'' Even though the screwdriver has other non-infringing uses, anyone distributing the screwdriver, or plans to build a screwdriver, or information on where you might find a screwdriver, can be prosecuted. It's like banning spray paint because it might be used to create illegal grafitti. Clearly that idea is absurd, yet current U.S. copyright law does have these implications.
The problem here is that content owners have completely overstepped their bounds and have forgotten that copyright is supposed to be a bargain between authors and the public. Instead, copyright owners have complete control over every conceivable use of their works, and citizens have no rights to do what they want with property they own. If there is ever to be a good solution to this problem, Congress will need to take a long hard look at the statute and ask themselves, ``Is this a good law?'' The idea of letting mega-corporations and well-funded lobbyists write laws which directly affect each and every citizen of this country is a farce, and it's high time for a change. The copyright dilemma is not an easy one to resolve. We need to find some way to allow the public to have easy access to content while still providing the opportunity for authors to profit from it. As Jessica Litman points out, people will not follow a law that they feel is unjust, or a law that sounds so absurd that they don't believe it even exists. (8) Creating a reasonable set of rules should be the real goal of copyright, and the only way for it to be attained is for the people's elected officials, instead of megaconglomerates, to write the laws.
1. United States Constitution, Article I, Section 8.
2. Litman, Jessica. Digital Copyright. Prometheus Books. Amherst, New York. 2001. p. 30-31.
3. Balio, Tina. ``Betamax Case.'' The Museum of Broadcast Communications. Accessed May 23, 2002. http://www.mbcnet.org/ archives/etv/B/htmlB/ betamaxcase/betamaxcase.htm
4. ``Audio Home Recording Act of 1992.'' United States Public Law 102-563. 1992. Subchapter D, Section 1008.
5. ``Digital Millennium Copyright Act.'' United States Public Law 105-304. 1998. Section 103.
6. DeCSS Central. http://www.lemuria.org/DeCSS/ Accessed May 23, 2002.
7. Greene, David A. Brief submitted to California Supreme Court in DVDCCA v. McLaughlin, Bunner et al. May 22, 2002.
8. Litman, Jessica. Digital Copyright. Prometheus Books. Amherst, New York. 2001. p. 112.