Unintended Consequences: Twelve Years under the DMCA
Fred Von Lohmann
Electronic Frontier Foundation
February 2010
This document collects 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. Previous
versions remain available.
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 infringers from defeating
anti-piracy protections added to copyrighted works and to ban the
"black box" devices intended for that purpose.
In practice, the anti-circumvention provisions have been used to
stifle a wide array of legitimate activities, rather than to stop
copyright infringement. As a result, the DMCA has developed into a
serious threat to several important public policy priorities:
* The DMCA 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.
* The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools
that can be used for circumvention, the DMCA grants to copyright
owners the power to unilaterally eliminate the public's fair use
rights. Already, the movie industry's use of encryption on DVDs has
curtailed consumers' ability to make legitimate, personal-use copies
of movies they have purchased.
* The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, some have wielded the DMCA to hinder
legitimate competitors. For example, the DMCA has been used to block
aftermarket competition in laser printer toner cartridges, garage
door openers, and computer maintenance services. Similarly, Apple has
used the DMCA to tie its iPhone and iPod devices to Apple's own
software and services.
* The DMCA Interferes with Computer Intrusion Laws.
Further, the DMCA has been misused as a general-purpose prohibition
on computer network access, a task for which it was not designed and
to which it is ill-suited. For example, a disgruntled employer used
the DMCA against a former contractor for simply connecting to the
company's computer system through a virtual private network ("VPN").
...
http://www.eff.org/wp/unintended-consequences-under-dmca
http://www.eff.org/files/eff-unintended-consequences-12-years.pdf
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