Yes, The DMCA Is Still Quite Controversial

Copyright

from the anti-circumvention? dept

Michael Scott points us to an interesting blog post by law professor Tim Armstrong wondering if the DMCA is still controversial, noting that while many of the biggest fears associated with the DMCA when it was first passed did, in fact, come true, many of them were cut back by court decisions that limited the interpretations of the DMCA away from the most dangerous ones.

Dire predictions followed about how the DMCA would restrict fair use, distort competition, erode privacy, and jeopardize academic research. In the early years of the statute’s existence, these predictions appeared to be fully justified: the DMCA was invoked to attack a DVD player for the Linux operating system; to imprison a Russian programmer transiently present in the United States based on conduct that was lawful in Russia where it occurred, and to harass and threaten an American computer scientist in an attempt to deter him from publishing his academic research, among other things. Cases like these appeared to substantiate the view that the DMCA had fundamentally upset the historical balance between the rights of owners and the rights of users of copyrighted works.

I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.

He notes some more recent court cases, and the fact that the Library of Congress is finally approving consumer-friendly DMCA exemptions.

I don’t buy it, however. There is still plenty that is highly controversial about the DMCA, and the fact that producers are relying less and less on DRM doesn’t fix the massive problems that the law has created with its anti-circumvention provisions, that still make perfectly non-infringing activities illegal for no good reason at all. Separately, there’s a rather important lawsuit going on right now questioning the limits of the DMCA’s safe harbors, which could have tremendous chilling effects on internet services if the district court’s ruling is not upheld. And while it may be amusing that some of the DMCA’s biggest supporters are now complaining about the aspects they don’t like, that doesn’t make the overall law any less controversial for those who feel that it has always been a massive and dangerous overreach.

Unfortunately, it does seem like most people have accepted that the DMCA will not be fixed any time soon, but to claim that things are fine and dandy since we avoided the worst of the worst, seems to miss out on many of the ongoing concerns.

Filed Under: copyright, dmca