March 28, 2000
David O. Carson, Esq.
General Counsel
Copyright GC/I&R
Southwest Station
Washington, DC 20024
Re: Section 1201(a)(1) of The Digital Millennium Copyright Act (Docket #7M99-7)
Dear Mr. Carson:
The comments favoring exemptions submitted in response to the Notice of Inquiry
ignore or misapprehend two fundamental and important propositions that must
underpin any discussion of the question raised by the Notice of Inquiry.
The first is that the enactment of the anticircumvention provisions of The Digital
Millennium Copyright Act (DMCA) is responsive to an understanding by
Congress and the Executive that digitization presents enormous risks to copyright.
It is, of course, common ground that digitization offers great economic and social
benefits but those benefits can be wiped out by the looming dangers of easy, cheap
and perfect quality reproduction, easy, cheap and perfect quality distribution and
the ability to make changes in the digitized work be it text, audio or video.
Problems of unauthorized reproduction and distribution, and to a slight extent,
modification existed and still exist with respect to works in the analog format.
The economic losses caused by the first two of those activities were and are very
significant. Digitization, however, leads to much more than just a quantitative
increase in such consequences. The ability to make perfect copies (and copies of
copies) and to transmit them on a worldwide basis has such a great potential for
destroying copyright protection as to require qualitatively different approaches to
stem the possibility that copyright owners would lose their rights as a result of
illegal activities all over the world.
The need for a new and stronger approach to copyright protection was appreciated
by the international community. Under the aegis of the World Intellectual
Property Organization, two treaties were agreed at the end of 1996 by
2
approximately 160 countries. Each of those treaties provides that the “Contracting
Parties shall provide adequate legal protection and effective legal remedies against
the circumvention of effective technical measures that are used…” by authors in
connection with the exercise of their rights. The United States, in implementation
of that requirement in the treaties, enacted Section 1201 of the DMCA.
The second fundamental proposition to which the comments pay little or no heed
is that the subject of this Inquiry has to do with access to copyrighted works and
not with the exclusive rights given to copyright owners by the Copyright Law.
This distinction flows from the important differences between the provisions of
Section 1201(a)(1)(A) and Section 1201(b). The former deals with circumvention
of technological measures that control access to works protected under the
Copyright Law; the latter deals with circumvention of technological measures that
protect the rights of copyright owners under the Copyright Law.
With respect to both provisions, trafficking in circumventing devices is, in certain
circumstances, prohibited. It is only with respect to the former provisions (dealing
with access), however, that the act of circumvention is prohibited.
The Copyright Office, in its summary of the DMCA, explains the reason for that
distinction:
“This distinction was employed to assure that the public will
have the continued ability to make fair use of copyrighted
works. Since copying of a work may be a fair use under
appropriate circumstances, section 1201 does not prohibit the
act of circumventing a technological measure that prevents
copying. By contrast, since the fair use doctrine is not a
defense to the act of gaining unauthorized access to a work,
the act of circumventing a technological measure in order to
gain access is prohibited.”
Furthermore, many of the comments consist of attacks of varying degrees of
vituperation on the Digital Millennium Copyright Act or, at least, the
“anticircumvention” provisions thereof. That position is, of course, beyond the
scope of this inquiry. The DMCA has been enacted into law including the
provision for this Inquiry and that provision is not asking about the wisdom of
such enactment.
Many of the commentators assert that the legal proceeding brought by a number of
motion picture producers and distributors complaining that DeCSS (the program
hacking CSS) and the injunction entered by the United States District Court in that
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action are not justified. The purported basis is that CSS prevents lawful
purchasers of DVDs from playing them on Linux and probably other operating
systems. This is offered in support of the argument that DVDs should be a “class
of works” for which circumvention should be permitted.
There is no basis for that argument. A license to implement the copy control
system (CSS) is available on a non-discriminatory basis to all hardware and
software manufacturers.1 In fact, at least one CSS licensee, Sigma Designs,
produces a DVD player that permits DVDs to be played on the Linux operating
system.
Some of the commentators assert that technological protections prevent a user
from making any sort of non-infringing use except for what may be allowed by the
producer of the content. This assertion is not true. Using, once again, DVDs as an
example and assuming that showing a movie on DVD in a classroom is fair use,
the technological measures used to protect DVDs would not prevent such a
showing. Also, the technological measures would not prevent a student from
recording a portion of a movie soundtrack or using a camcorder to copy a segment
of the movie as it plays on the screen of a DVD player.
Many of the baseless assertions in the comments flow from the false premise that
the purchase of a DVD or other copy of a copyrighted work entitles the purchaser
to exercise many, if not all, of the rights granted to the copyright owner by Section
106 of the Copyright Law. It should be common ground that the only right
relinquished by the copyright owner to a purchaser (as set forth in section 109) is
“…to sell or otherwise dispose of the possession of that copy…”.
Some of the commentators and, to a large degree, the Library Associations
complain of what is no more than inconvenience attributed to the use of
technological protections. For example, the Library Associations complain (page
20): “Many databases are available on only one computer in a library. As a result,
only one user can dial in at any one time” and (on page 21): “Because of
restriction of the number of users that can use a resource at any time, our students
and faculty are forced to do their research late at night during off-peak hours for
some of our resources”. Similar “inconveniences” would, of course, afflict library
users in a purely analog context in those situations where a library or school
purchases only one or very few copies of a book or other “resources”.
1
Contrary to assertions by some commentators, neither the Motion Picture Association of America nor any
of its member companies controls the licensing process or receives revenues from the CSS license.
4
More fundamentally, the kind of inconvenience about which the Library
Associations complain is not at all the “substantial adverse effect on noninfringing use” that would provide a rationale for exempting a “class of works”
from the prohibition against circumvention. The NOI itself makes the point and
quotes the House Manager’s Report that “mere inconveniences, or individual
cases…do not rise to the level of a substantial adverse impact”.
At bottom, the comments that favor the establishment of exemptions stand, either
explicitly or implicitly, on the proposition that exemptions will not adversely
affect the availability of works in digital format. This proposition not only has no
support but is contrary to the limited (fortunately) experience engendered by the
hacking of the CSS protection for DVD. This resulted in certain motion pictures
being withdrawn from availability in DVD format. What those commentators
should appreciate is that exemptions will almost certainly lead to unlawful uses.
This inevitable opening of the door to unlawful uses will, just as inevitably, lead to
publishers refusing to make their works available in digital format.
At this time when (i) many technical protections are still in their infancy, (ii)
technical protections have been subject to hacking, and (iii) piracy of copyrighted
works on the Internet is rampant, content owners would understandably be
reluctant to release their works in digital format if exemptions were granted.
The more rational premise is that effective technological measures will stimulate
rather than inhibit a wider distribution of content in digital format. The logic is
simple. Content owners will be willing to make their works available if they need
not fear the kind of piracy that digitization makes possible. One can use as an
example the Library Associations’ favorable references (page 24) to the LexisNexis Academic Universe which the libraries describe as “…a protected electronic
work that contains court cases, press releases, newspaper articles, among many
works. One would have to engage in an enormous amount of research to find all
of the collected material in any one place”. It does not take much imagination to
realize that the value thus provided by Lexis-Nexis would not exist if Lexis-Nexis
could not rely on technological protections in selling subscriptions to its service.
Not only are such controls vital to the continued availability of digitally formatted
works, such controls (that protect against unauthorized copying and distribution
even after a work has been lawfully acquired) have been with us for some time
without, so far as is known, any adverse impact on fair use and lawful uses.
Macrovision and SCMS are such technologies.
As to degrees of control over uses once access is obtained, most content owners
and their customers are quite used to that kind of practice. First run pictures cost
more to see than later runs. Hard cover books cost more than paperbacks. Early
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releases of phonograph records cost more than older ones. This, of course, is not
inflexible and that is one of the good things about control by the content owner;
the needs of a market operating free of piracy can be met so that, for example, a
rare recording or book, however old, will cost more than a contemporary issue.
Many of the commentators charge content owners with greedily seeking to control
all aspects of the use of their content. This is another irrational assumption. For
one thing, content owners are able to exist only in markets which allow and
encourage the distribution of their products. Secondly, as a matter of fact, content
owners do not control the manufacturers of hardware (both consumer electronic
and computer) on which the content owners’ works are carried and used. Content
owners must work with hardware manufacturers to implement technological
protections. This relationship insures that the technologies permit reasonable
access and use.
This very significant point is made in a recently published paper commissioned by
the World Intellectual Property Organization and written jointly by representatives
of content owners and consumer electronics manufacturers:
“… content owners reap value by having their works seen, heard and
read by audiences. Creators generally want people to experience
their works and investors and creators alike depend upon wide
audiences of legitimate, paying consumers to support the creation
and distribution of works. Creative works are not like gold; there is
no value in locking them away in a sealed vault. Therefore, copy
protection technology must be implemented so as not to interfere
with the legitimate distribution and communication of works to the
public. This imperative vastly increases the complexity of
developing and using copy protection technology. It means that for
all practical purposes copy protection measures cannot be unilateral.
Sound recordings and audiovisual works can only be enjoyed by the
use of receiving and playback devices, such as television sets, CD or
record players, videocassette players, personal computers, etc.
Content owners thus cannot apply technical measures to their works
that will cause all receiving and playback devices to be unable to
receive or play the works. Equally important, the goal of protecting
works cannot be achieved if receiving, playback and recording
devices do not recognize and respond to copy protection
technologies, but simply ignore them. Therefore, to work properly
copy protection technologies must be bilateral – the technologies
applied by content owners need to function with consumer
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electronics and computer devices used by consumers and these
devices need to respect and respond to the technologies applied.
This bilateral requirement means that solutions are not simply a
matter of technological innovation. Rather, effective copy
protection technology requires a high level of agreement and
implementation by both content providers and manufacturers of
consumer electronics and computer products. This can be achieved
by legislation, whereby certain types of devices are required to
respond to a particular copy protection technology, or by negotiated
cross-industry agreements.” 2
Some commentators, particularly the Library Associations, express concern that
the anticircumvention provisions will inhibit the ability of libraries and schools (as
well as other institutions) to archive works protected by copyright. There is very
little basis to this concern. For one thing, there is no reason why such institutions
should not acquire archival copies – other than unsupported conjecture by such
commentators, there is every reason to believe that publishers would make such
copies available. Secondly, as technology develops, it very likely will provide for
various levels of access to works and various kinds of permitted uses. Thus, free
and flexible markets can develop for the benefit of users, publishers and society at
large. Third, whether in an analog context or a digital context, no publisher is
required to create or supply succeeding volumes or updates. The fears expressed
that there will be a significant reduction in publishers keeping archival materials
current has no basis in fact and is clearly contrary to publishers’ self interest.
Fourth, the anecdotal complaints in this area are almost all contingent; they are put
in terms of, for example, “little or no real assurance”, “if the library
discontinues…”, “one can simply not be sure…”. This does not begin to provide a
basis for a “determination that the prohibition has a substantial adverse effect”.
Some of the commentators take the position that DVDs should be a “class of
copyrighted works” exempt from the application of Section 1201(a)(1)(A). This
proposal seems not to contend with the fact that DVDs are not a “class of works”
or even “works” within the meaning of the Copyright Law. DVDs are storage and
playback media, something like recording tape and CDs. This problem is but one
aspect of the larger definitional problem referred to in Time Warner’s original
comments. It is also but one aspect of the overriding problem of the impossibility
of limiting uses to non-infringing uses once an exemption is granted to any work
or “class of works”.
2
Technical Protection Measures: The Interaction of Technology, Law and Commercial Licenses by
Dean S. Marks and Bruce H. Turnbull, Journal of the Copyright Society of the U.S.A., Vol. 45 No. 4,
563, 567.
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Perhaps the most basic and all-pervading misconception that infects most of the
comments is the implicit view that the “problems” assertedly created for users are
as real as those that copyright owners face from digitization. The facts are to the
contrary.
The concerns expressed about users’ ability to make non-infringing uses of
copyrighted works are not only dealt with in the DMCA but, very importantly to
the point made here, they are purely speculative. Indeed, Section 1201(a)(1)(A)
has not yet become effective. The dangers to copyright, on the other hand, are real
and have already manifested themselves as in the DeCSS situation described in
Time Warner’s original comments and referred to by many commentators.
Napster is another example of a newly developed technology directed to
destroying copyright.
Even these destructive technologies may pale before a new development
announced in the Wall Street Journal for March 27, 2000. According to an article
therein (page B1), “a new technology [called Gnutella] sweeping through
cyberspace promises to unleash an entirely new wave of anarchy onto the Web,
making it impossible for anyone to protect intellectual property online or shut
down a rogue Web service”.
These very real dangers require that the protective provisions of the DMCA be
interpreted broadly and generously in support of protection else they will not be
able to serve their office of protecting copyright.
The view expressed in Time Warner’s original comments still appears accurate:
there has been no showing that the users of any “class of works” are likely to be
adversely affected in their ability to make non-infringing uses of those works by
the coming into force of Section 1201(a)(1)(A). There is certainly no basis at this
time to attempt to define such a “class of works” and any effort to do so should be
postponed at least to the end of the 3-year period referred to in Section
1201(a)(1)(B) so that the provision of Section 1201(a)(1)(A) will have an
opportunity to operate.
Respectfully yours,
The preceding is a Reply that is being submitted by:
Bernard R. Sorkin, Esq.
Senior Counsel
Time Warner Inc.
75 Rockefeller Plaza, 24th Floor
New York, NY 10019
Tele: (212) 484-8915
Fax: (212) 258-3006
e-mail: Bernard.Sorkin@twi.com
BRS:sib
