Opinion: The DMCA's anti-circumvention provisions have failed to reduce the unauthorized trafficking of copyrighted works on the Internet. But worse than the DMCA's failures are its perverse successes.
Intellectual property regulation in the United States is out of control. The thicket of legislation, policy and precedent through which we grant private monopolies on ideas has become, in many places, disconnected from its Constitutional mandate of promoting the progress of science and useful arts.
Weve taken the U.S. patent system to task in this space previously, but equally suspect in our view is the DMCA (Digital Millennium Copyright Act). We take particular note of the provisions of the act that outlaw efforts to circumvent the digital locks that content distributors place on their copyrighted workseven though no copyrights are infringed in the process.
Click here to read about Lexmarks failed attempt to accuse a printer chip maker of violating the DMCA.
The DMCAs anti-circumvention provisions have failed to reduce the unauthorized trafficking of copyrighted works on the Internet. Peer-to-peer networks are pumping as many bits as ever, and virtually all users who obtain unauthorized copies of content or software obtain those copies precracked.
Worse than the DMCAs failures are its perverse successes. The law has been used as an anti-competitive bludgeon with which entrenched businesses have beaten back potential rivals with threats of lawsuits, which small businesses, developers and researchers cannot afford to combat.
For instance, Lexmark used the DMCAs anti-circumvention provisions to keep the printer cartridge refilling services of third-party rival Static Control Components off the market for 19 months before the much smaller company eventually prevailed in court.
In addition, Adobe Systems used the DMCA to throw Russian programmer Dimitry Sklyarov in jail for daring to develop software that enabled blind people to access encrypted e-books with their screen readers. And, recently, fear of DMCA-driven retribution forestalled the outing of Sonys harmful CD rootkit DRM (digital rights management) scheme.
As if things werent bad enough, theres talk of a new law, the Intellectual Property Protection Act of 2006, that would bolster the anti-circumvention provisions of the DMCA, expand government wiretapping and seizure powers for investigating IP crime, and lengthen jail terms for noncommercial copyright infringement.
Click here to read Sonys CD rootkit DRM scheme.
Its time to stop the multiplication of regulations designed to defend vested interests and return to the concept of individual rights. We call on enterprises and the IT vendors that serve them not only to stand against the Intellectual Property Protection Act of 2006 but also to work to repeal the DMCAs misguided anti-circumvention provisions.
A good start would be to demand the resurrection of the Digital Media Consumers Rights Act, which decriminalizes DRM circumvention for legal, noninfringing purposes. Technology freedoms are as important as other civil rights. The restrictions that the DMCA puts on these freedoms ought not to stand.
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eWEEKs Editorial Board consists of Jason Brooks, Larry Dignan, Stan Gibson, David Morgenstern, Scot Petersen and Matthew Rothenberg.
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