Introduction
In 1998 the United States Congress passed the Digital Millennium Copyright Act (DMCA). This act strengthened the position of copyrightholders by, amongst others, the prohibition "to circumvent a technological measure that effectively controls access to a work" (see Section 1201 (a)(1)(A) DMCA). Rightsholders can implement technological measures to prevent infringing uses of their copyrighted works and set the conditions under which consumers may access and use these works.

There has been considerable critique of this anti-circumvention provision of the DMCA, notably of its broad scope. It prohibits the circumvention of an (effective) technological measure that protects any work, whether or not the work is copyrighted and whether or not the envisioned use of the work would constitute a copyright violation. Consequently, the anti-circumvention provision also prohibits consumers to circumvent technological measures of a copyrighted work if they want to make a fair use of that work.

Fair use doctrine
The fair use doctrine is comparable to, though not to be equated with the system of copyright exemptions in European copyright law. It is comparable in the sense that both the fair use doctrine and the system of copyright exemptions determine that for certain uses of copyrighted material the user does not need to have authorization of the rightsholder beforehand. Both US and European copyright are said to seek a balance between rightsholders’ interests on the one hand and the interests of users and society as a whole on the other hand (see, for example, Recital 31 European Copyright Directive (EUCD)). The fair use doctrine and the copyright exemptions represent the second part of this balance: the users' interests. Examples of fair uses of copyrighted material, and which may also be exempted under European copyright law, are quotation for critique and news purposes, use for scientific or scholarly research, and private use.

While the object of the fair use doctrine and the copyright exemptions is comparable, their regulation differs. Where the copyright exemptions are exhaustively numerated in national and European copyright laws (for example see Article 5 EUCD), the fair use doctrine is less clearly defined and more open to (juridical) interpretation. The boundaries of fair use, its scope, are fuzzy and hotly debated, as will be seen hereafter. However, it has been clear that technological measures do prevent fair uses of copyrighted works. For example, the DMCA forbids a teacher to circumvent a Digital Rights Management system (DRMs) on a DVD to show extracts of it in his class. The DMCA also prevents a visually disabled person from circumventing the DRMs on an e-book so he can use a technical fix that reads the e-book aloud. Any circumvention, even if the subsequent use of the technologically protected material is fair, is prohibited. Consumers need to get permission from the copyrightholder for a use that was historically allowed without authorization. This is what has been called the creation of a "permission culture" (see Lessig 2004, pp. 173, 192-193). The fair use of information by consumers, but also by scholars and news providers, becomes more and more dependent of the permission of rightsholders.

Four pillars of the DMCRA
The rise of a permission culture, or more specific the decline of the ability of consumers to make fair uses, has led to a reassessment of the DMCA. Five years after its enactment a new bill has been introduced in the US Congress to modify the DMCA and strengthen the position of consumers: the Digital Media Consumers' Rights Act (DMCRA). The DMCRA has four pillars: three that relate to fair use and the anti-circumvention provisions of the DMCA, and a fourth that seeks to augment the transparency for consumers towards the use of technological measures. Each pillar will be analysed in light of the Congressional Hearing on the DMCRA (see Hearing DMCRA 2004). This Hearing showed a great divide on the meaning of fair use between proponents (Consumer Electronics organisations, libraries, consumer organisations, academics) and opponents (the record and movie industry). Fair use, the ground on which the greater part of the DMCRA is founded, seems all but rock solid.

1. Reaffirms fair use
The most fundamental modification the DMCRA would bring to the DMCA is that the circumvention of a technological measure is deemed legitimate as long as the purpose of the circumvention is legitimate. A consumer, who circumvents a technical protection to make a fair use of the protected copyrighted work, shall not violate the anti-circumvention provision of the DMCA. This would be, for example, the teacher who circumvents a DVD encryption to show extracts in class for scholarly purposes. However, if that same teacher were to circumvent the DVD encryption and distribute the content of the DVD without a legitimate purpose, he would be punishable for both the act of circumvention and the act of copyright infringement. As such the DMCRA does not provide a legal tool in the hands of copyright infringers, stress the drafters of the bill. The content industry, a strong opponent of the bill, has a different view.

In the perspective of the Motion Picture Association of America (MPAA) the DMCRA would legalize hacking and, states the MPAA: "once a copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original" or "distinguish between a 'fair use' circumvention and an infringing one" (see Hearing DMCRA 2004, p. 31). Both opponents and proponents of the DMCRA acknowledged that there are no such technologies at this moment. What is more, the Hearing showed that while there may be no technology that can determine what a fair use is, neither could the attendees. That is, there were conflicting views on what the scope of fair use entails. For example, is it a fair use to make a complete (back up copy) of a DVD or CD? Do consumers have a right to do so? No, said the MPAA. Yes, said legal scholar and copyright activist Lawrence Lessig. He relied on historic argumentation by referring to the tradition of US copyright and pointed to a US Supreme Court decision to underscore his claim. This last action revealed precisely one of the problems with the fair use doctrine: it is an open norm applied by judges to determine whether there is a case of copyright infringement in a specific context. While section 107 of the US Copyright Act provides four factors that should be considered while determining if the use made of a work is a fair use, this is still a matter of interpretation that proves difficult for skilled lawyers. For technology, such as DRMs, this determination is even harder to make.

However, the claim Lessig and other proponents of the bill made, was that the DMCRA is not about the scope of fair use, but "whether you should have fair use despite the fact somebody has used a technology to take it away" (see Hearing DMCRA 2004, p. 56). Whatever the scope may be, if consumers can claim a fair use, they should be able to enforce it. Technological restrictions, backed by the DMCA, would make this enforcement impossible, and thus the notion of fair use effectively becomes obsolete. The DMCRA would provide a much needed and legitimate remedy.

The strategy of the content industry was to take the focus away from this argumentation, and question fair use and its enforcement as such. It stirred up the existing legal debate about the nature of fair use: if it is a user’s right or not more than a defense to a copyright infringement claim. Proponents of the DMCRA stress the first, opponents the second interpretation. No consensus on this question has been reached. But by questioning the nature of fair use the content industry tried to point out that the main foundation of the DMCRA, on which three of its pillars are built, is not as rock solid as thought. Moreover, technological enforcement of copyrights through, for example, DRMs, would be impossible and bring considerable harm to the industry, so it was claimed.

2. Reestablishes the Betamax standard
In December 2004 the US Supreme Court agreed to hear the MGM v. Grokster case. Twenty-one years after the groundbreaking Sony v. Universal Studios case, the Supreme Court can again decide to what extent technology providers are liable for the (copyright) infringing uses third parties may make with their products, so-called contributory infringement. From the Sony v. Universal Studios ruling followed the Betamax standard, which established that technology providers would have a defense against liability claims if the technology in question is "merely capable of substantial noninfringing uses". The VCR had this capability, according to the Supreme Court, and this year a lower court determined that p2p network Grokster had too, and could rely on the Betamax standard against claims of contributory infringement.

The DMCRA seeks to reestablish the Betamax standard for devices that can facilitate the circumvention of technological measures for legitimate purposes. Under Section 1201 of the DMCA the manufacturing or selling of these devices is currently prohibited. As a result a consumer cannot legitimately acquire hardware or software that would enable him to circumvent technological restrictions to make a fair use. Under the DMCRA consumers would actually be able to purchase the tools to enforce a fair use of a copyrighted work, or manufacture these tools themselves.

Proponents of this specific provision have not only stressed the consumers' interests, but also the more societal interest of flourishing technological innovation. This might be hampered if manufacturers live in a fear of liability for putting certain devices on the market, as noted by the President of the Consumer Electronics Association during the Hearing. For technological innovation the upcoming Supreme Court case MGM v. Grokster will be of great importance: the Betamax standard may be revised, even before the DMCRA finds its way into law, if at all.

3. Restores valid scientific research
Under the DMCA scientific researchers may only circumvent technological protection measures for encryption research under specific circumstances. Infamous is how Princeton University Professor Ed Felten was threatened with a DMCA lawsuit when he wanted to publish his research on weaknesses in a certain digital music security system (the Secure Digital Music Initiative). Felten initially withdrew his research. As a result both the academic freedom of speech and the progress of science were hindered by the (mis)use of a DMCA provision. The DMCRA would provide that researchers can analyse other technological protection measures than encryption and allows them to manufacture the circumvention tools to do so. Valid scientific research would be restored, bringing more security, and presumably also more secure technological measures.

4. Transparency through labeling
A fourth pillar of the DMCRA stands alone from the previous three, which are connected to the fair use principle. It seeks to enlarge the transparency for consumers on the use of technological measures. It may not be clear to consumers that, for example, CDs or DVDs are unplayable on certain devices due to technological measures. The DMCRA would add to the DMCA that adequate labeling of copyrighted material should occur to the benefit of consumers. This would enable them to make a more informed choice in the purchases they make. Also, the sale and advertising of mislabeled CDs would be prohibited. This was the least controversial provision during the DMCRA Hearing.

In short: While the scope of fair use may be questionable, it seems uncontested that the anti-circumvention provisions of the DMCA have prevented consumers from actively making a fair use of content protected by technological measures. Consumers, but also scholars, libraries and consumer electronic device manufacturers may be hurt in their interests by the DMCA. Not the least because of the strong objections and lobbying of the content industry, it is all but certain that the DMCRA or a comparable proposal will make it into law.

European analogy
Like the DMCA the EUCD offers a double-edged sword to rightsholders: circumvention is forbidden, and even if it were for a legitimate purpose, the manufacturing and sale of circumvention tools is also prohibited. The anti-circumvention provision of article 6 EUCD tends to overshadow the consumers' interests and related copyright exemptions, as laid down in article 5 EUCD.

Disagreement over the nature and scope of fair use in the US is mirrored in the confusion of European consumers over the private copying exemption. As such the EUCD does not provide a right to make a private copy, as recently underlined by several European court cases (see Helberger 2004). This shows an important difference to US legislation: many of the copyright exemptions that would be considered fair use, are not mandatory under the EUCD and left to the determinant of Nation States to guarantee and facilitate.

No proposal comparable to the DMCRA is pending on a European Community level. The European Nation States may take different regulative approaches to the subject matter. German copyright law, for example, does provide a transparency provision (Article 95(d)) that can be compared to the fourth pillar of the proposed DMCRA. Likewise technologically protected content should be sufficiently labeled as such under the German provision. That insufficient labeling could lead to a misleading practice was outlined in the aforementioned European court cases (see Helberger 2004).

In short: An explicit incentive to label products, and an attempt to restore copyright limitations, might also be beneficial to consumers in the EU community, complementary to existing consumer protection provisions (cf. Helberger et al 2004, p. 56). Complementary to consumer protection provisions, since the EUCD does not provide a private copying right. The DMCRA might serve as paragon.

Bottom line
Restriking of the historical balance between rightsholders and consumers is overdue. It is time that the R of Rights is put (back) in the DMCA and equivalents.

Sources

About the author: Rik Lambers is an associate INDICARE team member and wrote the legal chapter of INDICARE's State-of-the-art report. He specialises in internet regulation, freedom of expression and intellectual property law. For the INDICARE project he follows current DRM developments and writes about them at the INDICARE Blog. More of his technology and law related musings can be found at the CoCo weblog (lambers.org). Contact: rik@lambers.org

Status: first posted 20.01.2005; included in INDICARE Monitor, Vol. 1, No 8, 28 January 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=70