Unintended Consequences: Twelve Years Under the DMCA

SAN FRANCISCO - Twelve years after the passage of the controversial Digital
Millennium Copyright Act (DMCA), the law continues to stymie fair use,
free speech, scientific research, and legitimate competition. A new
report from the Electronic Frontier Foundation (EFF) collects reported
examples of abuses of the DMCA and the ongoing harm the law continues
to inflict on consumers, scientists, and small businesses.

The U.S. Copyright Office is currently mulling proposed exemptions
to the DMCA's ban on "circumventing" digital rights management (DRM)
and "other technical protection measures" used to restrict access to
copyrighted works. The Copyright Office is empowered to grant
exemptions to the law every three years to mitigate the harms that DRM
otherwise would impose on legitimate, non-infringing uses of
copyrighted materials.

The triennial Copyright Office rulemaking, however, has not been
enough to prevent abuses of the DMCA. EFF's report details the numerous
harms stemming from the DMCA's ban on circumventing DRM, including
Apple's attempts to lock down the iPhone and force users into its App
Store. Also new in this year's report is the account of hobbyists
threatened by Texas Instruments for blogging about potential
modifications to the company's programmable graphing calculators as
well as the story behind the legal attacks on Real DVD and other
products that create innovative new ways for consumers to enjoy DVD
content they have legitimately purchased.

"The DMCA's ban on tampering with digital locks on content is a
dangerous anachronism, a holdover from a time when people thought DRM
could solve all of Hollywood's problems," said EFF Senior Staff
Attorney Fred von Lohmann. "The DMCA's ban on bypassing DRM has failed
to stem digital copyright infringement, but it has unfortunately been
repurposed as a cudgel to threaten legitimate research and competitors."

Among the DMCA exemption requests currently before the Copyright
Office are three from EFF. One asks for an exemption for amateur
creators who use excerpts from DVDs in order to create new,
noncommercial remix videos. Another would explicitly exempt cell phone
"jailbreaking," allowing iPhones and other handsets to run applications
from any source. EFF's third proposal asks for a renewal of an
exemption previously granted for unlocking cells phones so they can be
used with any mobile carrier. A final decision on these and other
requests is expected from the Copyright Office within the next few
weeks.

For "Unintended Consequences: Twelve Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-under-dmca

For more on EFF's exemption requests:
http://www.eff.org/cases/2009-dmca-rulemaking