Extra protection for digital media: Digital Millenium Copyright Act

Short version: The easier it is to make a copy, the more rules there are to outlaw doing so.

The DMCA was the U.S. response to the treaties of the UN's World Intellectual Property Organization (WIPO).

The most interesting and controversial part of the DMCA is the section which deals with circumventing technological access controls on digital media. This is detailed in Chapter 12 of Title 17. Like other sections, it was an attempt to bring U.S. laws up to WIPO speed and comply with its provisions. Language includes:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title...; to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.

Copy Protection

Digital media are cheap and easy to copy with no loss of quality at all. CDs and DVDs are susceptible to being "ripped" into other digital formats for easy distribution, and copies can be burned in computers or other devices. Software and digital files, and web-based materials, are reproduced in some sense the minute one opens them, as caching takes place, and are easy to move or copy onto various devices.

Technological measures which the law prohibits media owners from circumventing include the following types of DRM (Digital Rights Management) technology:

Court cases have affirmed that it is not legal to distribute unauthorized means of decrypting DVDs, in particular, for purposes of copying them.

Perceived problems with the DMCA are noted in the March 2010 article, "Unintended Consequences: Twelve Years under the DMCA."

Region Coding

Region coding (RPC) is a problem language centers and media collections are familiar with. This is a type of encryption specific to DVDs, usually DVDs of theatrical films. It is certainly an "access control" like the others mentioned above. The coding allows a DVD to be played only on a player set to one of six "regions" in the world. DVD players normally are set to the region in which they are sold. Computer DVD drives, however, can usually change region several times; at the end of the allowed number of changes, the region is permanently set.

Note that region coding is different from the multiple systems (NTSC, PAL, and SECAM) which evolved as different countries adopted different broadcasting systems--and hence different playback and recording systems in the days of VCRs. The quality of a PAL video is better than that of an NTSC video, and they require different hardware for playback. Region coding controls access to a DVD, but does not affect its content or quality, and in fact most DVD players have firmware settings that can be changed from one region to another (hacked).

The purpose of this encryption is to contravene the rights of a purchaser in order to reserve the right to distribute DVDs of particular films in various countries. If, for example, X is the copyright holder of a successful French film, which is released on DVD in Europe, X wants to be able to release the film in the US as well, and if possible sell the rights to make and distribute a DVD in the US. These rights would be weakened if the European DVD were widely available in the US soon after its release. The region coding system was originally devised by Hollywood, however, and is usually seen primarily as protecting American films.

Hacking a DVD player to play any region, or manufacturing or purchasing a region-free DVD player, are situations in a legal twilight in the US. The point of these activities is circumventing access controls. Manufacturers may be violating contracts with the DVD Copy Control Association, which mandates that RPC be installed along with the CSS decoding keys. On the other hand, region coding in itself may be seen as violating various international trade laws.

In both the 2000 and 2003 Rulemaking, citizens petitioned for the right to circumvent RPC. This exception was denied in both cases. In 2000, those who wished to view foreign DVDs were urged to use VHS tapes or to purchase a foreign DVD player set to the desired region. In 2003, the use of a computer DVD drive was suggested as a good solution for those wanting to view non-region 1 DVDs. She also noted that regionless or multi-region players "appear to violate the prohibition on circumvention" but are "widely available." See 2003 Rulemaking (pp. 120ff) .

Although over 100 comments supporting the circumvention of region codes were received in 2003, all of them were requests from individuals wanting to view DVDs from a single region other than Region 1 (US). There has been no assessment of the situation of institutions--such as language labs--wishing to provide playback facilities for DVDs from multiple regions.

The Rulemaking of 2008-2009 allowed "circumvention of technological measures that control access to copyrighted works" in order to extract short clips (fair use) for "Educational uses by college and university professors and by college and university film and media studies students." Presumably RPC as well as CSS encoding can be circumvented for this purpose.

Library of Congress petitions for exceptions

Short version: there is a process for legalizing common-sense procedures which are made illegal by the DMCA. It takes several years.

Congress, in passing this law, hesitated to ban circumvention completely. Many exceptions had to be made immediately--for example, for computer repair requiring copying of materials, for routine caching, and so on. Provision was made for the Register of Copyrights to collect comments every three years and post the exceptions that had been approved.

The Rulemaking has taken place four times and one can read the petitions, comments, and decisions online: 1999-2000, 2002-2003, 2005-2006, 2008-2009 . For the last 3 of these, one can also read statements analyzing the arguments and discussing the rights of various parties (Recommendation of the Register).

Under "region coding," above, one attempt to create an exception is discussed. Successful exceptions in the academic world included a petition to circumvent encryption in order to make clips usings DVDs, in order to present compilations in the classroom. This was first proposed by film and media professors in the 2005-2006 Rulemaking, and there were many restrictions and discussions of alternatives before this exception was awarded. In the 2008-2009 Rulemaking, the right to circumvent encryption was extended to all academics and to a broader range of DVDs.

Successful challenges tend to be presented, not by individuals, but by groups. For example, the American Association for the Blind won an exception allowing circumvention of access controls to e-books so that visually disabled users could have them read aloud by software programs.