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Unintended Consequences: Three Years under the DMCA
1. Executive Summary
Since they were enacted in 1998, the "anti-circumvention" provisions of the Digital Millennium
Copyright Act (" DMCA"), codified in section 1201 of the Copyright Act, have not been used as Congress
envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to
copyrighted works, and to ban "black box" devices intended for that purpose. 1
In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities,
rather than to stop copyright piracy. As a result, the DMCA has developed into a serious threat to three
important public policy priorities:
Section 1201 Chills Free Expression and
Scientific Research.
Experience with section 1201 demonstrates that it is being used to stifle free speech and
scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor
Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry
Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students,
programmers, and members of the public.
Section 1201 Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for
circumvention, section 1201 grants to copyright owners the power to unilaterally
eliminate the public's fair use rights. Already, the music industry has begun deploying
"copy-protected CDs" that promise to curtail consumers' ability to make legitimate,
personal copies of music they have purchased.
Section 1201 Impedes Competition and
Innovation.
Rather than focusing on pirates, many copyright owners have chosen to use the
DMCA to hinder their legitimate competitors. For example, Sony has invoked section 1201
to protect their monopoly on Playstation
video game consoles, as well as their "regionalization" system limiting users in one
country from playing games legitimately purchased in another.
This document collects a number of reported cases where the anti-circumvention provisions of the DMCA
have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It
will be updated from time to time as additional cases come to light. The latest version can always be obtained
at www. eff. org.
2. DMCA Legislative Background
Congress enacted section 1201 in response to two pressures. First, Congress was responding to the
perceived need to implement obligations imposed on the U. S. by the 1996 World Intellectual Property Or-ganization
(WIPO) Copyright Treaty. Section 1201, however, went further than the WIPO treaty required. 2
The details of section 1201, then, were a response not just to U. S. treaty obligations, but also to the concerns
of copyright owners that their works would be widely pirated in the networked digital world. 3
Section 1201 contains two distinct prohibitions: a ban on acts of circumvention, as well as a ban on the
distribution of tools and technologies used for circumvention.
The first prohibition, set out in section 1201( a)( 1), prohibits the act of circumventing a technological
measure used by copyright owners to control access to their works (" access controls"). So, for example, this
provision makes it unlawful to defeat the encryption system used on DVD movies. This ban on acts of
circumvention applies even where the purpose for decrypting the movie would otherwise be legitimate. As
a result, if a Disney DVD prevents you from fast-forwarding through the commercials that preface the
feature presentation, efforts to circumvent this restriction would be unlawful.
Second, sections 1201( a)( 2) and 1201( b) outlaw the manufacture, sale, distribution or trafficking of tools and
technologies that make circumvention possible. These provisions ban not only technologies that defeat access
controls, but also technologies that defeat use restrictions imposed by copyright owners, such as copy
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controls. These provisions prevent technology vendors from taking steps to defeat the "copy-protection" now
appearing on many music CDs, for example.
Section 1201 also includes a number of exceptions for certain limited classes of activities, including
security testing, reverse engineering of software, encryption research, and law enforcement. These
exceptions have been extensively criticized as being too narrow to be of real use to the constituencies who they
were intended to assist. 4
A violation of any of the "act" or "tools" prohibitions is subject to significant civil and, in some
circumstances, criminal penalties.
3. Free Expression and Scientific Research
Section 1201 is being used by a number of copyright owners to stifle free speech and legitimate scientific
research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten's team of
researchers, and prosecution of the Russian programmer Dmitry Sklyarov have imposed a chill on a
variety of legitimate activities.
For example, online service providers and bulletin board operators have begun to censor discussions of
copy-protection systems, programmers have removed computer security programs from their websites, and
students, scientists and security experts have stopped publishing details of their research on existing security
protocols. Foreign scientists are also increasingly uneasy about traveling to the United States out of fear
of possible DMCA liability, and certain technical conferences have begun to relocate overseas.
These developments will ultimately result in weakened security for all computer users (including,
ironically, for copyright owners counting on technical measures to protect their works), as security researchers
shy away from research that might run afoul of section 1201. 5
Professor Felten's Research Team Threatened
In September 2000, a multi-industry group known as the Secure Digital Music Initiative (SDMI) issued a
public challenge encouraging skilled technologists to try to defeat certain watermarking technologies intended to
protect digital music. Princeton Professor Edward Felten and a team of researchers at Princeton, Rice, and
Xerox took up the challenge and succeeded in removing the watermarks.
When the team tried to present their results at an academic conference, however, SDMI representatives
threatened the researchers with liability under the DMCA. The threat letter was also delivered to the
researchers' employers, as well as the conference
organizers. After extensive discussions with counsel, the researchers grudgingly withdrew their paper from
the conference. The threat was ultimately withdrawn and a portion of the research published at a subsequent
conference, but only after the researchers filed a lawsuit in federal court.
After enduring this experience, at least one of the researchers involved has decided to forgo further
research efforts in this field.
Pamela Samuelson, "Anticircumvention Rules: Threat to Science," 293 SCIENCE 2028,
Sept. 14, 2001. http://www.sciencemag.org/cgi/reprint/293/5537/2028
Letter from Matthew Oppenheim, SDMI General Counsel, to Prof. Edward Felten,
April 9, 2001. http://cryptome.org/sdmi-attack.htm
Dmitry Sklyarov Arrested
Beginning in July 2001, Russian programmer Dmitry Sklyarov was jailed for several weeks and detained for
five months in the United States after speaking at the DEFCON conference in Las Vegas.
Prosecutors, prompted by software goliath Adobe Systems Inc., alleged that Sklyarov had worked on a
software program known as the Advanced e-Book Processor, which was distributed over the Internet by
his Russian employer, ElcomSoft Co. Ltd. The software allowed owners of Adobe electronic books
(" e-books") to convert them from Adobe's e-Book format into Adobe Portable Document Format (" pdf")
files, thereby removing restrictions embedded into the files by e-Book publishers.
Sklyarov was never accused of infringing any copyrighted e-Book, nor of assisting anyone else to
infringe copyrights. His alleged crime was working on a software tool with many legitimate uses, simply because
third parties he has never met might use the tool to copy an e-Book without the publisher's permission.
In December 2001, under an agreement with the Department of Justice, Sklyarov was allowed to return
home. The Department of Justice, however, is continuing to prosecute his employer, ElcomSoft,
under the criminal provisions of the DMCA.
Lawrence Lessig, "Jail Time in the Digital Age," N. Y. TIMES at A7, July 30, 2001.
http://www.nytimes.com/2001/07/30/opinion/30LESS.html
Jennifer 8 Lee, "U. S. Arrests Russian Cryptographer as Copyright Violator," N. Y.
TIMES at C8, July 18, 2001.
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Scientists and Programmers Withhold Research
Following the legal threat against Professor Felten's research team and the arrest of Dmitry Sklyarov, a
number of prominent computer security experts have curtailed their legitimate research activities out of fear
of potential DMCA liability.
For example, prominent Dutch cryptographer and security systems analyst Neils Ferguson discovered a
major security flaw in an Intel video encryption system known as High Bandwidth Digital Content Protection
(HDCP). He declined to publish his results and removed all references on his website relating to flaws
in HDCP, on the grounds that he travels frequently to the U. S. and is fearful of "prosecution and/ or liability
under the U. S. DMCA law."
Neils Ferguson, "Censorship in Action: Why I Don't Publish My HDCP Results," Aug. 15,
2001. http://www.macfergus.com/niels/dmca/cia.html
Neils Ferguson, Declaration in Felten & Ors v R. I. A. A. case, Aug. 13, 2001.
http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_ferguson_decl.html
Lisa M. Bowman, "Researchers Weigh Publication, Prosecution," CNET NEWS,
Aug. 15, 2001. http://news.cnet.com/news/0-1005-200-6886574.html
Following the arrest of Dmitry Sklyarov, Fred Cohen, a professor of digital forensics and respected
security consultant, removed his "Forensix" evidence-gathering software from his website, citing fear of
potential DMCA liability.
Another respected network security protection expert, Dug Song, also removed content from his
website for the same reason. Mr. Song is the author of several security papers, including a paper describing a
common vulnerability in many firewalls.
Robert Lemos, "Security Workers: Copyright Law Stifles," CNET NEWS, Sept. 6, 2001.
http://news.com.com/2100-1001-272716.html
In mid-2001 an anonymous programmer discovered a vulnerability in Microsoft's proprietary e-Book digital
rights management code, but refused to publish the results, citing DMCA liability concerns.
Wade Roush, "Breaking Microsoft's e-Book Code," TECHNOLOGY REVIEW at 24,
November 2001. http://www.technologyreview.com/articles/innovation11101.asp
Foreign Scientists Avoid U. S.
Foreign scientists have expressed concerns about traveling to the U. S. following the arrest of Russian
programmer Dmitry Sklyarov. Some foreign scientists have advocated boycotting conferences held in the U. S.
and a number of conference bodies have decided to move their conferences to non-U. S. locations. Russia
has issued a travel warning to Russian programmers traveling to the U. S.
Highly respected British Linux programmer Alan Cox resigned from the USENIX committee of the
Advanced Computing Systems Association, the committee that organizes many of the U. S. computing
conferences, because of his concerns about traveling to the U. S. Cox has urged USENIX to hold its annual
conference offshore. The International Information Hiding Workshop Conference, the conference at which
Professor Felten's team intended to present its original paper, has chosen to hold all of its future conferences
outside of the U. S. following the SDMI threat to Professor Felten and his team.
Will Knight, "Computer Scientists boycott US over digital copyright law," NEW SCIENTIST,
July 23, 2001. http://www.newscientist.com/news/news.jsp?id=ns00001063
Alan Cox of Red Hat UK Ltd, declaration in Felten v. RIAA, Aug. 13, 2001.
http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_cox_decl.html
Jennifer 8 Lee, "Travel Advisory for Russian Programmers," N. Y. TIMES at C4, Sept. 10,
2001. http://www.nytimes.com/2001/09/10/technology/10WARN.html?searchpv=past7days
IEEE Wrestles with DMCA
The Institute of Electrical and Electronics Engineers (IEEE), which publishes 30 per cent of all computer
science journals worldwide, recently was drawn into the controversy surrounding science and the DMCA.
Apparently concerned about possible liability under Section 1201, the IEEE in November 2001 instituted a
policy requiring all authors to indemnify IEEE for any liabilities incurred should a submission result in legal
action under the DCMA.
After an outcry from IEEE members, the organization ultimately revised its submission policies, removing
mention of the DMCA. According to Bill Hagen, manager of IEEE Intellectual Property Rights, "The
Digital Millennium Copyright Act has become a very sensitive subject among our authors. It's intended to
protect digital content, but its application in some
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specific cases appears to have alienated large segments of the research community."
IEEE press release, "IEEE to Revise New Copyright Form to Address Author
Concerns," April 22, 2002. http://www.ieee.org/newsinfo/dmca.html
Will Knight, "Controversial Copyright Clause Abandoned," NEW SCIENTIST, April 15, 2002.
http://www.newscientist.com/news/news.jsp?id=ns99992169
2600 Magazine Censored
The Universal City Studios v. Reimerdes case 6 illustrates the chilling effect that section 1201 has had on the
freedom of the press.
In that case, eight major motion picture companies brought a DMCA suit against 2600 magazine seeking to
block it from publishing the DeCSS software program, which defeats the encryption used on DVD movies.
2600 had made the program available on its web site in the course of ongoing coverage of the controversy
surrounding the DMCA. The magazine was not involved in the development of software, nor was it
accused of having used the software for any copyright infringement.
Notwithstanding the First Amendment's guarantee of a free press, the district court permanently barred
2600 from publishing, or even linking to, the DeCSS software code. In November 2001, the Second Circuit
Court of Appeals upheld the lower court decision.
In essence, the movie studios effectively obtained a "stop the presses" order banning the publication of
truthful information by a news publication concerning a matter of public concern— an unprecedented
curtailment of well-established First Amendment prin-ciples.
Carl S. Kaplan, "Questioning Continues in Copyright Suit," N. Y. TIMES, May 4, 2001.
http://www.nytimes.com/2001/05/04/technology/04CYBERLAW.html
Simson Garfinkel, "The Net Effect: The DVD Rebellion," TECHNOLOGY REVIEW at
25, July/ Aug. 2001. http://www.technologyreview.com/articles/garfinkel0701.asp
Xenia P. Kobylarz, "DVD Case Clash— Free Speech Advocates Say Copyright Owners
Want to Lock Up Ideas; Encryption Code is Key," S. F. DAILY JOURNAL, May 1, 2001.
Microsoft Threatens Slashdot
In spring 2000, Microsoft invoked the DMCA against the Internet publication forum Slashdot,
demanding that forum moderators delete materials relating to Microsoft's proprietary implementation of
an open security standard known as Kerberos.
In the Slashdot forum, several individuals alleged that Microsoft had changed the open, non-proprietary
Kerberos specification in order to prevent non-Microsoft servers from interacting with Windows 2000.
Many speculated that this move was intended to force users to purchase Microsoft server software. Although
Microsoft responded to this criticism by publishing its Kerberos specification, it conditioned access to the
specification on agreement to a "click-wrap" license agreement that expressly forbade disclosure of the
specification without Microsoft's prior consent.
Slashdot posters responded by republishing the Microsoft specification. Microsoft then invoked the
DMCA, demanding that Slashdot remove the republished specifications.
In the words of Georgetown law professor Julie Cohen, "If Microsoft's interpretation of the DMCA's
ban on circumvention technologies is right, then it doesn't seem to matter much whether posting
unauthorized copies of the Microsoft Kerberos specification would be a fair use. A publisher can
prohibit fair-use commentary simply by implementing access and disclosure restrictions that bind the entire
public. Anyone who discloses the information, or even tells others how to get it, is a felon."
Julie Cohen, "Call it the Digital Millennium Censorship Act – Unfair Use," THE NEW
REPUBLIC, May 23, 2000. http://www.thenewrepublic.com/cyberspace/cohen052300.html
AVSforum. com Censors TiVo Discussion
The specter of DMCA litigation has chilled speech on smaller web bulletin boards, as well. In June 2001,
for example, the administrator of AVSforum. com, a popular forum where TiVo digital video recorder
owners discuss TiVo features, censored all discussion about a software program that allegedly permitted TiVo
users to move video from their TiVos to their personal computers. In the words of the forum administrator,
"My fear with this is more or less I have no clue what is a protected system on the TiVo box under copyright
(or what-have-you) and what is not. Thus my fear for the site."
Lisa M. Bowman, "TiVo Forum Hushes Hacking Discussion," CNET NEWS, June 11,
2001.
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http://news.cnet.com/news/0-1005-200-6249739.html
4. Fair Use Under Siege
"Fair use" is a crucial element in American copyright law— the principle that the public is entitled, without
having to ask permission, to use copyrighted works so long as these uses do not unduly interfere with the
copyright owner's market for a work. Fair uses include personal, noncommercial uses, such as using a VCR to
record a television program for later viewing. Fair use also includes activities undertaken for purposes such as
criticism, comment, news reporting, teaching, scholarship or research.
While stopping copyright infringement is an important policy objective, Section 1201 throws out the
baby of fair use with the bathwater of digital piracy. By employing technical protection measures to control
access to and use of copyrighted works, and using section 1201 litigation against anyone who tampers
with those measures, copyright owners can unilaterally eliminate fair use, re-writing the copyright bargain
developed by Congress and the courts over more than a century.
Copy-protected CDs
The introduction of "copy-protected" CDs into the marketplace illustrates the collision between fair use
and the DMCA. Record labels are aggressively incorporating "copy-protection" on new music
releases. Over 10 million copy-protected discs are already in circulation, according to Midbar Technology
Ltd, one of the vendors of copy-protection technology. Sony claims that it has released over 11 million copy-protected
discs worldwide. Universal Music Group has stated that all of its music CDs will incorporate copy-protection
by mid-2002.
Whatever the impact that these copy protection technologies may have on online infringement, they are
certain to interfere with the fair use expectations of consumers. For example, copy-protected discs will
disappoint the hundreds of thousands of consumers who have purchased MP3 players, despite the fact that
making an MP3 copy of a CD for personal use is a fair use. Making "mix CDs" or copies of CDs for the office
or car are other examples of fair uses that are potentially impaired by copy-protection technologies.
Companies that distribute tools to "repair" these dysfunctional CDs, restoring to consumers their fair
use privileges, run the risk of lawsuits under section 1201's ban on circumvention tools and technologies.
Rep. Rick Boucher, "Time to Rewrite the DMCA," CNET NEWS, Jan. 29, 2002.
http://news.com.com/2010-1078-825335.html
Dan Gillmor, "Entertainment Industry's Copyright Fight Puts Consumers in Cross
Hairs," SAN JOSE MERCURY NEWS, Feb. 12, 2002.
http://www.siliconvalley.com/mld/siliconvalley/2658555.htm
Gwendolyn Mariano, "Copy-Protected CDs Slide Into Stores," CNET NEWS, Feb. 12,
2002. http://news.com.com/2100-1023-835841.html
Jon Iverson, "Every New CD to be Restricted?," STEREOPHILE, Oct. 1, 2001.
http://www.stereophile.com/shownews.cgi?1153
Jon Iverson, "A Universal CD Problem?," STEREOPHILE, Feb. 12, 2002.
http://www.stereophile.com/shownews.cgi?1261
Fair Use Tools Banned
We are entering an era where books, music and movies will increasingly be "copy-protected" and
otherwise restricted by technological means. Whether scholars, researchers, commentators and the public will
continue to be able to make legitimate fair uses of these works will depend upon the availability of tools to
bypass these digital locks.
The DMCA's anti-circumvention provisions, how-ever, prohibit the creation or distribution of these tools,
even if they are crucial to fair use. So, as copyright owners use technology to press into the 21st century,
the public will see more and more fair uses whittled away by digital locks allegedly intended to "prevent
piracy." Perhaps more importantly, no future fair uses will be developed— after all, before the VCR, who
could have imagined that fair use "time-shifting" of television would become common-place for the
average consumer?
Copyright owners argue that these tools, in the hands of copyright infringers, can result in "Internet piracy."
But the traditional answer for piracy under copyright law has been to seek out and prosecute the infringers,
not to ban the tools that enable fair use. After all, photocopiers, VCRs, and CD-R burners can also be
misused, but no one would suggest that the public give them up simply because they might be used by others
to break the law.
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DeCSS and DVD Copy Plus
Fair use tools have already been yanked off the market. In the Universal v. Reimerdes case, discussed
above, the court held that section 1201 bans DeCSS software. This software decrypts DVD movies, making
it possible to copy them to a PC. In another case, a company has filed a declaratory judgment action in San
Francisco after being threatened with DMCA liability by the MPAA for distributing DVD Copy Plus, which
enables DVD owners to make copies of DVD content.
There are lots of legitimate reasons to copy DVDs. Once the video is on the PC, for example, lots of fair
uses become possible— film scholars can digitally analyze the film, travelers can load the movie into their
laptops, and parents can fast-forward through the commercials that open Disney films. Without the tools
necessary to copy DVDs, however, these fair uses become impossible.
Matthew Mirapaul, "They'll Always Have Paris (and the Web)," N. Y. TIMES at E2,
March 16, 2002.
Steven Bonisteel, "Firm Sues Movie Studios To Defend DVD-Copying Software,"
Newsbytes, April 23, 2002. http://www.newsbytes.com/news/02/176080.html
Advanced e-Book Processor and e-Books
The future of fair use for books is at issue in the criminal prosecution of Dmitry Sklyarov and
ElcomSoft. As discussed above, ElcomSoft produced and distributed a tool called the Advanced e-Book
Processor, which translates e-books from Adobe's e-Book format to Adobe's Portable Document Format
(" PDF"). This translation process removes the various restrictions (against copying, printing, text-to-speech
processing, etc.) that publishers can impose on e-Books. The program is designed to work only with
e-Books that have been lawfully purchased from sales outlets.
The Advanced e-Book Processor allows those who have legitimately purchased e-Books to make fair uses
of their e-Books, which would otherwise not be possible with the current Adobe e-Book format. For
instance, the program allows people to engage in the following activities, all of which are fair uses:
. read it on a laptop or computer other than the one on which the e-Book was first
downloaded;
. continue to access a work in the future, if the particular technological device for
which the e-Book was purchased becomes obsolete;
. print an e-Book on paper;
. read an e-Book on an alternative operating system such as Linux (Adobe's format
works only on Macs and Windows PCs);
. have a computer read an e-Book out loud using text-to-speech software, which is
particularly important for visually-impaired individuals.
EFF, Frequently Asked Questions re U. S. v. Sklyarov.
http://www.eff.org/IP/DMCA/US_v_Sklyarov/us_v_sklyarov_faq.html
Time-shifting and Streaming Media
As more consumers receive audio and video content from "streaming" Internet media sources, they will
demand tools to preserve their settled fair use expectations, including the ability to "time-shift"
programming for later listening or viewing. As a result of the DMCA, however, the digital equivalents of
VCRs and cassette decks for streaming media may never arrive.
Start-up software company Streambox developed exactly such a product, known simply as the Streambox
VCR, designed to time-shift streaming media. When competitor RealNetworks discovered that Streambox
had developed a competing streaming media player, it invoked the DMCA and obtained an injunction against
the Streambox VCR product.
RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311 (W. D. Wash. Jan. 18, 2000).
The DMCA has also been invoked to threaten the developer of an open source, noncommercial software
application known as Streamripper that records MP3 audio streams for later listening.
Cease and desist letter from Kenneth Plevan on behalf of Live365. com to John Clegg,
developer of Streamripper, April 26, 2001. http://streamripper.sourceforge.net/dc.php
embed and Fonts
In January 2002, typeface vendor Agfa Monotype Corporation threatened a college student with DMCA
liability for creating "embed," a free, open source, noncommercial software program designed to
manipulate TrueType fonts.
According to the student: "I wrote embed in 1997, after discovering that all of my fonts disallowed
embedding in documents. Since my fonts are free, this was silly— but I didn't want to take the time to…
change the flag, and then reset all of the extended font
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properties with a separate program. What a bore! Instead, I wrote this program to convert all of my fonts
at once. The program is very simple; it just requires setting a few bits to zero. Indeed, I noticed that other
fonts that were licensed for unlimited distribution also disallowed embedding…. So, I put this program on the
web in hopes that it would help other font developers as well."
Attorneys for Agfa Monotype nevertheless have threatened the student author with DMCA liability for
distributing the program. According to Agfa, the fact that embed can be used to allow distribution of
protected fonts makes it contraband under Section 1201, notwithstanding the fact that the tool has many
legitimate uses in the hands of hobbyist font developers.
Tom Murphy, "embed: DMCA Threats." http://www.andrew.cmu.edu/~twm/embed/
dmca. html
5. A threat to innovation and competition
The DMCA is being used to hinder the efforts of legitimate competitors to create interoperable products.
For example, Vivendi-Universal's Blizzard video game division invoked the DMCA in an effort to
intimidate the developers of a software product derived from legitimate reverse engineering. Sony has used the
DMCA to threaten hobbyists who created competing software for Sony's Aibo robot dog, as well as to sue
makers of software that permits the playing of Playstation games on PCs. In each of these cases, the
DMCA was used to deter a marketplace competitor, rather than to battle piracy.
Sony Sues Connectix and Bleem
Since the DMCA's enactment in 1998, Sony has used DMCA litigation to pressure competitors who created
software that would allow PC owners to play games intended for the Sony Playstation video game console.
In 1999, Sony sued Connectix Corporation, the manufacturer of the Virtual Game Station, an emulator
program which allowed Sony Playstation games to be played on Apple Macintosh computers. Sony also sued
Bleem, the leading vendor of Playstation emulator software for Windows PCs.
In both cases, the Sony competitors had created their products by engaging in legitimate reverse engineering,
which has been recognized as noninfringing fair use in a series of Ninth Circuit cases. Connectix, in fact,
ultimately won a Ninth Circuit ruling that its reverse engineering was indeed fair use. 7 Both Connectix and
Bleem, however, were unable to bear the high costs of litigation against Sony and ultimately were forced to
pull their products off the market. Whatever the merits
of Sony's position may have been under copyright, trademark, patent, or other legal theories, the
competitive efforts of Connectix and Bleem certainly were at a far remove from the "black box" piracy
devices that Congress meant to target with section 1201.
Pamela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention
Regulations Need to be Revised," 14 BERKELEY TECHNOLOGY L. J.
519, 556 (1999) (discussing the Connectix case).
http://www.sims.berkeley.edu/~pam/papers.html
Testimony of Jonathan Hangartner on behalf of Bleem, Library of Congress, Hearing on
DMCA, Stanford University, May 19, 2000, pp. 221-28.
http://www.loc.gov/copyright/1201/hearings/1201-519.pdf
Sony Threatens Aibo Hobbyist
Sony has also invoked the DMCA against a hobbyist who developed custom programs for Sony's Aibo
robotic "pet" dog. The hobbyist cracked the encryption surrounding the source code that manipulates the Aibo
to reverse engineer programs that allow owners to customize voice recognition by their Aibos. The
hobbyist revealed neither the decrypted source code nor the code he used to defeat the encryption, freely
distributed his custom programs, and made no profit. Nevertheless, Sony claimed that the act of circum-venting
the encryption surrounding the source code violated the DMCA and demanded that the hobbyist
remove his programs from his website.
Responding to public outcry, Sony ultimately permitted the hobbyist to repost some of his programs
(on the understanding that Sony will have the rights of commercial development in the programs). The
incident, however, illustrated Sony's willingness to invoke the DMCA in situations with no relationship to
"piracy."
David Labrador, "Teaching Robot Dogs New Tricks," SCIENTIFIC AMERICAN, Feb. 12,
2002. http://www.sciam.com/explorations/2002/012102aibo/
Blizzard Pursues bnetd. org
Section 1201 has been brandished by Vivendi-Universal's Blizzard Entertainment video game division
in an attempt to intimidate a group of volunteer game enthusiasts who created open source server software
called "bnetd" that provides Internet gaming
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enthusiasts with an alternative to the servers operated by Blizzard.
The bnetd software permits owners of Blizzard games to play multiplayer games against each other
over the Internet. Blizzard runs its own servers, known as "Battle. net," which it makes available free of charge
to allow its games to be played across the Internet. The group of volunteer programmers decided to create
bnetd to overcome difficulties that they had experienced in attempting to use Battle. net. The bnetd
software is freely distributed, open source, and non-commercial.
In February 2002, Blizzard invoked the DMCA in an effort to have bnetd pulled off the Internet. Blizzard
sent a "cease and desist" letter to the ISP that hosts the bnetd website, claiming that the bnetd software
violated section 1201.
Blizzard contends that the bnetd software has been used by some to permit networked play of pirated
Blizzard games. Whether or not that contention is true, the developers are not using the software for that
purpose, nor was the software designed for such a purpose. The software has numerous legitimate uses
for owners of Blizzard games. As a result, whatever else may be said about the bnetd software, it is plainly not a
"black box" piracy device.
Ultimately, Blizzard filed suit in St. Louis to bar distribution of bnetd. Tellingly, however, Blizzard
chose not to press a DMCA claim in the lawsuit, opting instead for traditional copyright and trademark claims.
(EFF is representing the bnetd developers.) Blizzard's willingness to use the DMCA in pre-litigation threats,
however, demonstrates its chilling potential in the hands of copyright owners intent on hindering
competitors, rather than stopping piracy.
David Becker, "Group Backs ISP in Online Gaming Dispute", CNET NEWS, March 12,
2002. http://news.com.com/2100-1040-858414.html
Legal correspondence on bnetd website. http://www.bnetd.org/case_letters.php
Sony's Attack on Playstation "Mod Chips"
Apart from using the DMCA against vendors of personal computer emulators of Sony's Playstation,
Sony has sued a number of manufacturers of so-called "mod chips" for alleged circumvention under the
DMCA. In doing so, Sony has been able to enforce a system of geographical regional restrictions that raises
significant anticompetitive issues.
So-called "mod chips" are after-market accessories that modify Playstation consoles to permit games
legitimately purchased in one part of the world to be played on a games console from another geographical
region. Sony has sued mod chip manufacturers in the U. S., the U. K., and Australia. In the U. S., Sony sued
Gamemasters, Inc., distributor of the Game Enhancer peripheral device, which allowed U. S. Playtstation users
to play games purchased in Japan and other countries. Although there was no infringement of Sony's
copyright, the court granted an injunction under the DMCA's anti-circumvention provisions, effectively
banning the use of a technology that would permit users to use legitimately-purchased non-infringing
games from other regions.
Recognizing the anti-competitive potential of the region playback control system, the Australian anti-trust
authority, the Australian Competition and Consumer Commission (ACCC), has intervened in a
lawsuit that Sony is pursuing against an Australian mod chip manufacturer under the Australian equivalent of
the DMCA's anti-circumvention provisions. The ACCC argues that Australian consumers should be
permitted to use personally imported games discs not otherwise available in Australia, or available only at a
significantly higher price.
Sony has argued that mod chips can also be used to enable the use of unauthorized copies of Playstation
games. But most Playstation mod chips are not "black box" devices suitable only for piracy. The potential
illegitimate uses must be weighed against legitimate uses, such as defeating Sony's region coding system to
play games purchased in other countries.
"Sony Playstation ruling sets far-reaching precedent," NEW SCIENTIST, Feb. 22, 2002
(http://www.newscientist.com/news/news.jsp?id=ns99991933).
Sony Computer Entertainment America Inc. v. Gamemasters, 87 F. Supp. 2d 976 (N. D. Cal.
1999).
Australian Competition and Consumer Commission Press Release, "ACCC Defends
the Rights of Playstation Owners," Feb. 8, 2002.
(http://203.6.251.7/accc.internet/digest/view_media.cfm?RecordID=595).
6. Conclusion
Three years of experience with the "anti-circumvention" provisions of the DMCA demonstrate
that the statute reaches too far, chilling a wide variety of legitimate activities in ways Congress did not intend.
As an increasing number of copyright works are wrapped in technological protection measures, it is
likely that the DMCA's anti-circumvention provisions will be applied in further unforeseen contexts,
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Unintended Consequences: Three Years Under the DMCA 9
hindering the legitimate activities of innovators, researchers, the press, and the public at large.
1 For examples of Congress' stated purpose in enacting the DMCA's anti-circumvention provisions, see 144 Cong. Rec.
H7093, H7094-5 (Aug. 4, 1998); Senate Judiciary Comm., S. Rep. 105-190 (1998) at 29; Judiciary Comm., H. Rep. 105-551 Pt 1 (1998) at 18; House Commerce Comm., H. Rep. 105-551 Pt 2 (1998) at 38.
2 See WIPO Copyright Treaties Implementation Act and Online Copyright Liability Limitation Act: Hearing on H. R. 2281 and H. R.
2280 before the House Subcomm. on Courts and Intellectual Prop., 105th Cong., 1st sess. (Sept. 16, 1997) at 62 (testimony of Asst. Sec. of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman admitting that section 1201
went beyond the requirements of the WIPO Copyright Treaty).
3 For a full description of the events leading up to the enactment of the DMCA, see Jessica Litman, DIGITAL COPYRIGHT
89-150 (2000).
4 See Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised,
14 BERKELEY TECHNOLOGY L. J. 519, 537-57 (1999) (http://www.sims.berkeley.edu/~pam/papers.html)
5 See Professor Ross Anderson, Cambridge University, Declaration in Felten v. RIAA (Oct. 22, 2001), describing ways in
which the DCMA is suppressing research into security weaknesses in SDMI watermarking technology: (http://www.eff.org/IP/DMCA/Felten_v_RIAA/20011022_anderson_decl.pdf).
6 111 F. Supp. 2d. 294 (S. D. N. Y. 2000), aff'd 273 F. 3d 429 (2d Cir. 2001).
7 Sony Computer Entertainment, Inc. v. Connectix Corporation, 203 F. 3d 596 (9th Cir. 2000).
9