TABLE OF CONTENTS INTRODUCTION I. AUDIO HOME RECORDING ACT (AHRA): 1987 TO 1992 A. Legal Threats and a Legislative Compromise B. The AHRA's Effects and Political Significance II. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA): 1995 TO 1998 A. Addressing the Looming Internet Threat B. Crafting the DMCA C. DMCA: Impact and Political Significance III. INTERLUDE: 1999 to 2002 A. The Peer-to-Peer Explosion B. Senator Hollings's Proposal C. NGOs Take a Central Role D. Scholars Step into the Spotlight IV. DMCA REFORM A. Reform Proposals B. Outcome and Significance V. BROADCAST FLAG A. Bottling Digital Broadcasts B. Lowering the Broadcast Flag C. Few Salute the Audio Flag VI. AFTER DRM: FROM THE DISC TO THE WHOLE WIDE WEB A. Boucher's Efforts End B. Domain Seizures: COICA, ICE, and SOPA/PIPA C. The Legacy of the SOPA Blackout CONCLUSION
The industries that produce and distribute copyrighted works have a long, well-documented history of fearing new media technologies. The best-known example came in a congressional hearing in 1982, when Motion Picture Association of America (MPAA) chief Jack Valenti proclaimed, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." (1) While not matching Valenti's hyperbole, Jason S. Berman, President of the Recording industry Association of America (RiAA), expressed the same concern in a 1990 hearing. "[F]or many years, the music industry has been gravely concerned about the devastating impact of home taping ... [which] presently displaces about one third of the industry's sales ... [at a cost of] nearly $1 billion per year." (2) Berman predicted the negative economic impacts from new digital audio tape (DAT) systems would be even stronger. (3) Even these were hardly the first protests against new media. Mark A. Lemley writes, "I sometimes suspect there was an association of monastic scriveners who protested the printing press." (4) He then ticks off several examples in the series of allegedly threatening new media technologies of the twentieth century, from the player piano and the gramophone to radio broadcasting, cable television, and the photocopier. (5)
The standard lesson from these examples is that each new technology became either a minor nuisance to the incumbent content providers or--as has been the case more often--an important development that actually expanded the market for licensed works. The more recent deluge of digital technologies, including especially the internet, may well present an exception to this rule, but along with many others, I am quite skeptical. (6) The standard lesson provides a valuable backdrop for those who contend that the internet should be allowed to grow without copyright-minded regulations; after all, if the "content industry ... has a Chicken Little problem," (7) the sky is probably not falling this time, either.
While the standard lesson about the shortsightedness of the content industries is a valuable one to draw from this history, there is another lesson as well--a story about the political trajectory of copyright that helps us in our role as political observers rather than as gladiators. Here, the lesson focuses on which of two broad fates greets each new technology: whether the law accepts each new technology into the mix, or the law becomes a tool to limit, ban, or otherwise render each harmless. Here, the recent past really is different. Until the 1980s, new technologies were either accommodated via minor changes in copyright law or begrudgingly accepted despite some marginal infringement. Phonographs and radio airplay became and remain lucrative sources of mechanical royalties for composers. TV broadcasters moaned when pioneer CATV systems retransmitted their signals, but, in the decades since, retransmission fees have added substantially to the bottom lines of broadcasters; they are expected to reach $3 billion per year by 2015. (8) Photocopiers, viewed with trepidation by book and periodical publishers, were accommodated by adjustments to the copyright statute and the creation of a new organization for collecting royalties, (9) and, rather than shrinking profits, journal publishers have seen their profits balloon. (10) "The VCR made possible the home video market, a market which today generates more than double the revenues collected at the box office--at a time when box office admissions have also shown strong growth." (11) It is easy to paper over the acrimony, including lawsuits and lobbying, that greeted these formerly new technologies, but still, each of these stories ultimately ended with content companies accepting the new technology.
The movie industry's strategic response to the VCR, however, represents something of an inflection point in content industries' strategies. If they had followed the previous historical examples, the motion picture industry would have sought a modest change in the copyright statute, for instance by collecting royalties on machines and blank tapes. Instead, they went to court to have the VCR effectively banned, and in the case that resulted--Sony v. Universal City Studios--four members of the Supreme Court were ready to do just that. (12) Jack Valenti was not just expressing concern about infringing uses of a new technology; he was attacking the technology itself. This attack failed--barely--but it put technology innovators on notice that the content industries would try to act as gatekeepers not only at the box office and record store, but in the electronics shop as well. This focus on technology and technological innovators has continued to this day, and the copyright lobby has continued to adopt an aggressive stance toward each new technology. The Sony decision was a setback to this agenda; as the majority famously wrote, "the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." (13) Yet the content industries were not to be dissuaded, and their efforts have eroded Sony to the point that media technologies are developed amidst a fear of legal liability. (14) Copyright has shifted from a law that regulated only copying behavior into a system that regulates copying technology, driven by content industry fears that new technologies--especially the Internet--will effectively destroy their business models. (15)
Spearheading this effort to ban or neuter new media technologies via stronger copyright law are the media conglomerates that dominate the entertainment industry. The lobbying groups for the movie studios (MPAA) and record companies (RiAA) are the best-known and most active, but other content producers such as print publishers, music publishers, sports leagues, and some in the software and video game industries also lend their efforts. Along with their political allies, such as many members of Congress and other government officials, I call this group the "strong copyright" (or SC) coalition. (16)
While the SC coalition had faced little organized resistance before, the dawn of the twenty-first century saw the growth and flourishing of a coalition deliberately designed as a political counterweight. This coalition generally argues against the expansion of copyright and for the broadening of exceptions, limitations, and affirmative defenses, especially fair use; thus, I call this coalition the strong fair use (or SFU) coalition. (17) The SFU coalition is not merely anti-copyright, however. its rallying cry is two-fold: freedom of expression and freedom to tinker. (18) SFU advocates argue that copyright has grown to a degree that it has fundamentally compromised these freedoms, leaving our society with less speech and less innovation as a result. With these powerful motivating ideals in hand, the SFU coalition rose from virtual nonexistence to serious political impact in under a decade. That transition is an important inflection point in the political history of copyright law.
The content industries, on the other hand, have looked at digital technology with trepidation, seeing not a vehicle for greater speech and innovation, but a threat to their business models. As a key component of their strategic response, the SC coalition has sought to use digital technology to prevent unauthorized access to and use of copyrighted works. These digital technologies collectively referred to as Digital Rights Management (DRM), include techniques such as encryption and watermarking that can keep works locked in a technological box, branded with ownership identity, or otherwise distributed in such a way as to slow or discourage unapproved uses.
While working on a study (19) of the representations of the DRM policy debate across congressional hearings, newspapers, and the web--including an exploration of the SFU coalition's heavy use of internet advocacy--I was surprised to find no previous research tying together the political histories of these very related debates. This study does just that, exploring the twists and turns that characterized each of what I consider the 4 major DRM policy debates of the past 25 years. it examines the debates leading up to the passage of the Audio Home Recording Act (AHRA) (20) and the Digital Millennium Copyright Act (DMCA), (21) as well as stalled efforts to mandate a DRM technology called the "broadcast flag" and attempts to reform the DMCA. I explore each of these debates in detail, laying bare the technological, economic, and political background, the specific policy proposals advanced, and some of the political forces that helped shape each outcome. Because these DRM debates have also been shaped by and have helped to shape other key developments in the politics of copyright, I also have two additional sections, one exploring the key years between the passage of the DMCA and the beginning of the later debates, and the other discussing important developments in the last five years.
By looking at these milestones in the evolution of digital copyright in one place, this study tells an as-yet untold story about the trajectory of copyright advocacy in general. it also sets out a roadmap for observers to better understand the contemporary copyright debate, as well as to be better equipped for anticipating where it is headed. in particular, it is only by understanding the coalitions that are party to the debate, as well as their evolving political and communication strategies, that one can have a full grasp of the significance and likely future direction of copyright in the digital era. While this understanding carries several lessons, the emerging significance of nonprofit actors such as NGOs and scholars is an under-appreciated phenomenon that bears special emphasis. These actors have fundamentally reshaped the politics of copyright, making possible what was formerly impossible and making far more difficult what was once taken for granted.
I. AUDIO HOME RECORDING ACT (AHRA): 1987 TO 1992
in the early 1980s, electronics manufacturers began developing devices to record and play Digital Audio Tape (DAT). DAT promised consumers the ability to make their own recordings with the fidelity of compact discs (CDs)--the latter being a read-only medium at the time. Yet not everybody was excited by the prospect of consumers having the capacity to make perfect digital copies--let alone copies of copies.
A. Legal Threats and a Legislative Compromise
The music industry, already having advanced the complaint that "Home taping is killing music," (22) was quite scared of DAT.
As the New York Times observed:
[T]he president of the Recording Industry Association of America, Stanley Gortikov, ... characterized the Japanese-dominated audio hardware industry as an "assassin" bent on destruction of the largely American recording industry. "We are already losing billions to home taping," Mr. Gortikov said recently ... "Imagine what it will be like if the tape copy is equal to the original." (23)
DAT decks were expected to arrive on U.S. store shelves by 1987, (24) but the recording industry used lobbying, threatened and actual litigation against Sony, and market pressure to stop the manufacturer from importing DAT machines. (25) The recording industry was far better prepared for a court fight. "The RIAA held a million dollars in readiness for legal fees and let it be known that it was financially girded for battle.... [Also,] Japanese manufacturers of DAT recorders, mindful of already strained trade relations with the United States, wanted to avoid the publicity resulting from a lawsuit, even one they would likely win." (26) Additionally, record labels could and did refuse to release music in DAT format, greatly diminishing the potential demand for the machines. (27)
Starting in 1987, the recording industry supported legislation to require that DAT recorders sold or imported into the U.S. include copy-control technologies. (28) CBS Records developed a system that depends on very minor changes to the audible sound. The change likely would have been inaudible to most listeners--but audible for the very audiophiles who were the primary target market. (29) Congressional hearings considering early legislation met substantial electronics industry resistance, (30) and the lack of inter-industry consensus around a workable technology kept these proposals from serious consideration. Tensions between the recording industry and electronics manufacturers eased when Sony purchased CBS Records in January of 1988. (31) Still, the legal threats kept DAT decks out of U.S. stores.
In 1989, the industries came to terms, apparently clearing the legal cloud around DAT. (32) The terms of the agreement required DAT decks to include a different copy control technology. This system, the Serial Copy Management System (SCMS), does not alter the audible sound of recordings; rather, it adds an inaudible, one bit signal that indicates whether the tape is an original or a copy. Using SCMS-equipped recorders, consumers can make a perfect digital copy of an original recording but cannot make copies of copies. Allowing only first-generation copies represented a compromise between the industries; in return for this limitation, record labels agreed not to sue DAT manufacturers or users over home recording. (33)
Both industries sought legislation codifying this deal. (34) However, record companies were not the only music industry group with a legal threat in store; songwriters and music publishers were not satisfied by the proposed accord and used their own legal threat against DAT:
The National Music Publishers Association [NMPA], a New York group representing music copyright holders ... thinks [SCMS] does not restrict copying enough and can be circumvented easily. The organization favors charging buyers of tape machines and blank tapes a royalty fee that would go to compensate the songwriters and music publishers. (35)
Backed by the NMPA, (36) songwriter Sammy Cahn filed a lawsuit accusing Sony of contributory infringement. (37) Had it gone to court, the case would have faced long odds; the parallel with Sony v. Universal (38) was almost exact. Despite the weakness of the Cahn suit, Sony decided against another extended legal fight and "settled about a year into the litigation" (39) in June of 1991. (40) In addition to implementing SCMS, the manufacturers agreed to pay a copyright royalty on DAT decks and blank tapes. Further, they agreed to support new legislation that would require SCMS and the collection of royalties for all digital audio recording devices. (41) in return for the electronic industries' support, the music industry agreed to statutory language that, first, gives consumers the explicit legal right to make noncommercial recordings for personal enjoyment, and, second, gives manufacturers the legal right to help them do so. (42)
There were voices of resistance during the legislative process, and some of their reasons for opposing the bill were insightful or even prescient. (43) Well-reasoned though they were, however, these opponents were not part of any substantially mobilized resistance and thus went unheeded. For instance, consumer groups expressed their doubts but participated with resignation; rather than opposing the bill outright, they described it as a regrettable necessity in the face of the music industry's legal threats. The National Consumers League appeared at one hearing and backed the bill on these terms. (44) Consumers Union representatives appeared in two Washington Post articles, describing the royalty as unfair but assessing the bill as the only means to get DAT into the market. (45) Scholarly opposition was more genuinely against the bill as drafted, but their participation was also light; law professor Jessica Litman opposed the bill, (46) as did Philip Greenspun, then a research assistant at MIT--though he was also serving as president of a small technology company. (47) With such minor resistance and all the major affected industries signing on, the bill sailed into law in 1992. (48)
B. The AHRA's Effects and Political Significance
The AHRA was outdated quickly after it became law. In order to avoid royalties on their products, computer companies had helped to make sure that the act did not regulate general-purpose computers, software, or blank computer media. (49) As today's consumer well knows, this demarcation between personal media equipment and computing equipment did not hold for long. By the mid 1990s, computer CD burners allowed music fans to engage in unlimited serial copying without paying royalties, and the PC as home entertainment center was already becoming a reality. (50) The courts also found that the act does not regulate MP3 players, (51) a ruling that helped keep costs low for the iPod and all its progeny.
in 1992, policymakers and interested industries envisioned a future for digital music that looked like a higher-fidelity version of what was then the present--one in which media consumption was tethered to standalone media players playing special-purpose media. What happened instead was nothing less than a home entertainment revolution based around computer-based copying and consumption, all of which falls outside the act's regulatory bounds. it began with computer-based, royalty-free burning of CDs for playback on home and car CD players. Then the invention and explosive adoption of peer-to-peer systems such as Napster put the PC squarely in the center of music consumption. (52) By persuading the record labels to sign on to the iTunes music store in 2002, (53) Apple provided the first commercially successful means of collecting on the internet distribution of music, but there was no putting the internet genie back into the bottle--and certainly no going back to the era of the standalone music player.
Because policymakers and the electronics and music industries understandably did not foresee this revolution in how music would be acquired, distributed, and consumed, the AHRA was drafted in such a way that it quickly became irrelevant. DAT decks and other regulated technologies, such as the Sony MiniDisc, never caught on with consumers; consumers greatly preferred unregulated computer-based CD burners. (54) Since AHRA-regulated technologies never achieved widespread adoption, the legislative history of the act has received light treatment by legal scholars, and commentators who do discuss it have dismissed it as a minor step on the route to more substantial DRM regulation. (55)
The AHRA is historically significant as the first DRM regulation of any kind, as well as the first copyright law mandating the adoption of a specific technology. (56) On both counts, the AHRA thus represents the first step in copyright's transition into a vehicle for regulating devices. After the AHRA, it became illegal to make and sell stand-alone digital audio recording devices with unrestricted functionality--this even though unrestricted devices would have had the kinds of substantial noninfringing uses that the Supreme Court ruled as exculpatory in Sony. (57)
The passage of the AHRA also shows how DRM policy debates through the end of the twentieth century continued to follow the industry-led legislation process that Jessica Litman identifies in copyright generally. (58) As in other instances, Congress urged the affected industries to reach a generally acceptable compromise and, once one was reached, passed it as law. The motivation for record companies and music publishers was clear enough; the former wanted to reduce the number of illicit digital copies competing with their official recordings, and the latter wanted another source of licensing revenues. Technology companies supported the bill--not on principle, but because they wanted to design and sell their products without being sued. Even though Sony and others disliked the need for protective legislation, they grudgingly accepted it as better than unending litigation. By the early 1990s, the electronics industry was practically begging for the AHRA's passage so they could finally import DAT decks--a technology that had already been available abroad for years by that point. (59)
Finally, the debate also foreshadowed the battle lines that would be hardened in later debates. The AHRA is the first effort to use copyright law to shape product design, growing from supporters' belief that if technology can cause them problems in the form of easier copying, other technology--backed by law--can also solve that same problem. in contrast, opponents argued that DRM and a law against its circumvention would inconvenience customers, drive up prices, and prevent noninfringing uses, all while failing to prevent infringement to any significant degree. These battle lines grew more entrenched during the debate leading up to and following the passage of the DMCA.
II. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA): 1995 TO 1998 (60)
The Digital Millennium Copyright Act, or DMCA, (61) is the most sweeping revision to copyright law of the last 30 years "and arguably represents the most dramatic change in the history of U.S. copyright law." (62) The Act was an effort "to bring U.S. copyright law 'squarely into the digital age,' ... [and] [t]he primary battleground in which the [Act] achieved this goal is its first title." (63) This title (64) was billed as an implementation of two World Intellectual Property Organization treaties, (65) which the United States signed in 1996.
A. Addressing the Looming Internet Threat
The story of this law begins with what James Boyle describes as the "Internet Threat." (66) Copyright holders view the internet as a substantial technological challenge that cannot be addressed through AHRA-style legislation. By 1994, the World Wide Web was spreading into broader use, (67) and, over the next few years, users started going online by the tens of millions. In light of this growth, copyright holders came to fear the internet and developed policy proposals to address the threat of online infringement. Media companies threatened that, unless Congress made the internet safe for content via stronger copyright protection, copyright holders would not put their works online, depriving the new medium of attractive content. Policymakers generally had little online experience, leaving them open to the myth that the internet needed content--even at a time when the content online was growing exponentially without major media participation. (68)
The content industry sought to tame Internet distribution via DRM systems backed by the force of law, and Bruce Lehman is the policy actor who gets the most credit for advancing the legal part of the equation. Lehman was Patent Commissioner from 1993 to 1998. Lehman also headed the White House Information Infrastructure Task Force, which released a White Paper (69) that encouraged copyright holders to deploy DRM systems. Because DRM can be circumvented, the White Paper also called for laws that would prohibit the circumvention of DRM and ban the tools of circumvention.
This was before there was a well-organized and identifiable SFU coalition, but the White Paper caused "dismay among libraries, composers, writers, online service providers ... and the makers of consumer electronic devices and computer hardware." (70) Several law professors also opposed the White Paper proposals. Immediately following its release, American University law professor Peter Jaszi "held informal consultations with like-thinking law professors and representatives of library organizations to see whether there was any possibility of mounting an effective opposition to the White Paper's proposals." (71) Jaszi recruited other White Paper opponents, including "library organizations, online service providers, telephone companies, computer hardware and software manufacturers, consumer electronics companies, and civil rights and consumer protection organizations." (72) This group of interests agreed to work together, calling themselves the Digital Future Coalition, or DFC. (73) The DFC succeeded in mobilizing substantial--and, from the standpoint of Lehman and the content industries, unexpected--opposition to Lehman's suggested changes. Nonetheless, this was the first effort at a substantial multi-sector coalition opposed to the interests of the SC coalition. Thus, Jaszi and company were not well positioned to stop these proposals.
The bill contained a categorical ban on the importation, development, and distribution of tools to circumvent DRM. (74) it also contained bans on the removal or alteration of copyright management information--data that identifies the copyright holder and related information. (75) The legislation also contained civil penalties of up to $2,500 per violation of the section 1201 ban on trafficking in tools that circumvent DRM and up to $25,000 per violation of the section 1202 ban on removal or alteration of copyright management information. (76) Finally, the bill stipulated criminal penalties of up to $500,000 or five years in prison for anybody convicted of violating "section 1202 with intent to defraud." (77)
All DFC members saw this bill as a bad policy idea that would have a net negative effect on society. Many also feared it as a looming legal liability that could threaten them directly, so they mobilized enough constituents to stop the bill's easy passage. This development surprised Lehman, who was so confident of domestic passage that he had already begun pushing for an international treaty with similar provisions via the appropriate United Nations agency, the World Intellectual Property Organization (WIPO). Yet Lehman used the international momentum to his advantage. (78) Supporters were able to secure the passage of two related treaties through WIPO (79) even as the domestic legislation stalled. U.S. delegates advanced a proposed treaty that looked much like the proposed domestic legislation: ban circumvention and ban the tools that make circumvention possible. A critical mass of the negotiators from other countries rejected this proposal--like Jaszi and the DFC, who saw a lot to oppose in such a strong ban. The resulting compromise led to a treaty with much weaker language than the US proposal; it requires only that countries discourage the act of circumvention, and it does not require a ban on circumvention tools or services. on this count, the treaties are much closer to the traditional contours of U.S. copyright than is the U.S. legislation that passed; before the 1990s, U.S. copyright had regulated copying behavior but not copying technologies. (80)
In a second important compromise with critics, the treaties impose a rather low standard for implementing legislation. A signatory must only "provide adequate legal protection and effective legal remedies" against circumvention of DRM and removal of copyright management information. (81) U.S. law arguably met the treaties' standard before the DMCA's passage. It was already illegal to circumvent DRM to conduct copyright infringement, and manufacturers of "black box" devices that only served to circumvent DRM had already been subjected to legal liability for facilitating infringement. (82) The "Clinton Administration initially considered sending the WIPO Copyright Treaty to the Senate for ratification 'clean' of implementing legislation." (83)
Rather than merely supporting simple treaty ratification, SC advocates--including congressional allies--made a more sophisticated use of the treaties. They engaged in "policy laundering," or the use of international law-making bodies to advance one's domestic agenda. (84) As Oscar Gandy and I argue elsewhere:
Congress used the [WIPO Copyright] Treaty as an excuse to implement a much more sweeping ban on circumvention. In short, Lehman and the bill's congressional supporters used WIPO to launder their own interests, running their political capital through the bank of international credibility and treating the final bill as something required by international law. (85)
Despite the SC coalition's disappointment with the relative weakness of the final treaty language, they took advantage of the documents' relative vagueness, urging passage of much stronger legislation in the name of compliance with treaty obligations. in congressional hearings in 1997 and 1998, at least 10 witnesses made this argument. (86) Several even praised the stronger legislation for its likely effect of getting legislation passed in other countries that would similarly exceed the minimum threshold of WIPO treaty compliance. For instance, Representative Bart Gordon argued, "once we pass something here, it has to go to the international community.... They are really waiting for us to see what we are going to do. So whatever we do is the ceiling, not the floor." (87) Thus, while the patina of compliance with the treaty gave the bill some extra credibility, even supporters agreed that the bill exceeded what was required.
B. Crafting the DMCA
The final legislation is built around the kind of strong regulation Lehman sought. Section 1201 implements three different bans. The first ban (or the "basic ban") prohibits circumventing DRM to gain unauthorized access to copyrighted works. It reads, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." (88) For example, if a computer program requires a unique serial number during installation, this makes it illegal for a technically sophisticated user to defeat or hack this requirement and install the software without such a serial number. While doing so for the purpose of infringing copyright was already illegal, this clause bans it for nearly any reason--even if one has misplaced the serial number for a legally purchased software package and intends to install it on just one computer. The statute itself makes few allowances for even the most benign of uses, such as efforts to preserve the data on a decaying disk.
The second ban prohibits manufacturing, importing, and trafficking in tools that would help circumvent access-controlling DRM. (89) A technology is covered by this ban if it is developed, marketed, or primarily used for such circumvention. This ban (the "access trafficking ban") prohibits computer-repair services from assisting a librarian in the preservation of software stored on decaying media, and it prohibits librarians from developing a technology to facilitate circumvention.
Some DRM systems do not prevent unauthorized access but instead prevent certain uses of copyrighted works, especially unauthorized copying. The third ban (the "additional violations ban") prohibits trafficking in tools to facilitate the circumvention of DRM if that DRM protects any copyright holder's right. (90) For example, the music industry had briefly experimented with DRM-restricted CDs. These discs are not easily copied by computers, but the DRM systems do not prevent access; CD players require no access key or code to play them and thus generally play them without problems. This provision would ban a technology designed or marketed to circumvent this DRM system--for instance, a tool that would allow a consumer to convert the audio files from this CD into MP3 format on her hard drive. The proposed bills and final legislation all left untouched the right to circumvent use-controlling DRM such as this. Thus, a determined end user would be well within her rights to circumvent the DRM on a music CD, but it would be illegal for her to develop, sell, or market a service or software program that did so.
The 105th Congress added a number of amendments to the bill. in the House bill as introduced, (91) a very brief section 1201 lays out the three bans with no explicit exceptions. It contains the following caveat, which is also included in the final legislation: "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." (92) While this may seem like a large caveat, the DMCA does not change the definition of infringement; it simply adds an additional set of prohibitions. Thus, most of the limitations, exclusions, and affirmative defenses built into copyright law do not limit the DMCA's reach. Most importantly, fair use is not a defense against charges of circumvention or trafficking in circumvention devices. The language in the 1997 bill also applies criminal penalties of up to a million dollars in fines and up to ten years in prison for violating section 1201 or 1202 "willfully and for purposes of commercial advantage or private financial gain." (93) These penalties remained in the final legislation as enacted. (94)
Facing mobilized opposition--including librarians, privacy advocates, encryption researchers, and computer industry representatives--the bill's supporters made several narrow concessions, each creating a limited reprieve from one or more of the three bans. These caveats are clear attempts to address the concerns of a specific sector without much reduction in the bill's reach. Librarians opposed the bill and got a very limited exception; they may circumvent DRM "to make a good faith determination of whether to acquire a copy of that work," (95) but not to preserve works they have already purchased. (96) Software designers and information technology researchers spoke in opposition and got some more substantial breathing room to do their jobs, (97) though not enough to prevent some major professional headaches for some bona fide researchers doing legitimate work, as discussed below. The Electronic Privacy information Center testified in opposition, so they won the right to circumvent DRM in order to protect their personal information. (98) Each opposition group got a concession in rough proportion to its political capital. For the bill's backers, this was vastly preferable to permitting a general-purpose exemption for otherwise noninfringing uses--let alone an exception for technologies that are capable of substantial noninfringing uses.
The basic ban is also subject to additional, temporary exemptions. Every three years, under the supervision of the Librarian of Congress, the U.S. Copyright Office holds hearings to consider proposed exemptions from the ban on circumventing access-controlling DRM systems. (99) The procedure moves questions of fair use away from relatively fair use-friendly federal courts and into the hands of the Register of Copyrights, a clear member of the SC coalition--a shift of venue that substantially favors the SC coalition. (100) Though several exemptions have been granted in each rulemaking, the statute and the Register of Copyright's interpretation of the rules for determining exemptions are heavily stacked against proposed exemptions. (101) Changes introduced in the 2006 rulemaking make it somewhat less objectionable in terms of both procedure and outcome, though the whole procedure remains deeply flawed. (102)
Ironically, the bill's opponents might have been better off had they allowed the original bill to pass without the explicit exemptions that were later added. As Jessica Litman explains:
The original Lehman bill granted copyright owners sweeping new rights, but its silence on available exceptions invited the courts to apply copyright's traditional limitations [such as fair use]. The DMCA also grants copyright owners sweeping new rights. its laundry list of narrow exceptions, however, discourages the inference that the classic general exceptions and privileges apply. (103)
This inapplicability of general exceptions became the cause for much political wrangling later, as discussed below.
C. DMCA: Impact and Political Significance
Compared with the AHRA, the passage of the DMCA represented a much more significant shift in copyright law as a vehicle for the regulation of technology. The AHRA regulates only one small class of technologies--stand-alone digital audio recording devices. in contrast, the DMCA regulates a potentially infinite number of devices, including computers. Every copyrighted work that can be digitized can be wrapped in encryption and flagged by copyright management information. Those who design and manipulate technologies to handle such copyrighted works are on thin legal ice. This discourages even legitimate academic encryption research, despite the exception for encryption research. (104) Unauthorized but legal uses of DRM-protected works are also discouraged, both by the ban on circumvention and the ban on tools of circumvention. (105) This is a substantial departure from prior copyright law, sharing "neither the logic nor the strategy of copyright." (106)
Like the debate around the AHRA, the process leading up to the DMCA also says a great deal about the politics of copyright--though while the AHRA debate was more of an extension of the previous politics of copyright, the run-up to the DMCA sowed the seeds of a major change. Before Lehman began advancing his ideas, there was still no cohort of policy actors that advanced an agenda directly opposed to that of the SC coalition. Lehman's proposal, however, scared opponents into coordinated action. Starting with Peter Jaszi and other like-minded law professors, opponents began recruiting others to the cause in the hopes of stopping or amending the proposal before it could become law. importantly, they successfully recruited new coalition members that policymakers could not ignore--that is, not just law professors and librarians--including especially industry groups. Weighing in to express concerns about the bill were computer and electronics industry trade groups such as the Home Recording Rights Coalition, Consumer Electronics Manufacturers Association, and the Computer & Communications industry Association. Another notable opponent was the institute of Electrical and Electronics Engineers, which functions like an academic body and has many academic members but is also substantially populated by and representative of industry professionals. With the AHRA debate being just the most recent example, Congress was not used to legislating copyright law in the face of opposing industries. The addition of genuinely opposed industries slowed down what Lehman expected would be easy passage for the bill.
Another important development was when Representative Rick Boucher joined the opposition. Over nearly three decades in service, Boucher earned a reputation as one of the most technologically literate member of Congress and an informed, thoughtful voice in technology policy discussions. (107) in expressing his own views in congressional hearings, he eloquently advanced the arguments of the bill's opponents. For instance, he argued that the bill would erode the Sony decision and that this would prevent legitimate technologies from coming to market. (108) He also proposed legislation with an alternate version of [section] 1201. (109) It read, in part:
No person, for the purpose of facilitating or engaging in an act of infringement, shall engage in conduct so as knowingly to remove, deactivate or otherwise circumvent the application or operation of any effective technological measure used by a copyright owner to preclude or limit reproduction of a work or a portion thereof. As used in this subsection, the term 'conduct' does not include manufacturing, importing or distributing a device or a computer program. (110)
If passed in this form, the DMCA would have tethered violations to the question of infringement; if a user's purpose was not infringing, circumvention would have been entirely legal. Thus, exemptions and affirmative defenses such as fair use would have limited the reach of the DMCA. in this bill, the basic ban is the only ban--there are no bans on developing or selling products or services that circumvent DRM, whether access controlling or use-controlling. instead, the language specifically exempts manufacturers and vendors of such devices and services. Unlike the DMCA that passed, the Boucher proposal would not have limited the reach of the Sony defense.
Obviously, members of Congress make for powerful political allies, and this represents Boucher's full-throated entree into the coalition opposed to copyright as a tool for regulating technology. Combined with the academic, librarian, and many technology industry actors (111) organized under the aegis of the Digital Future Coalition, this group now had a collective voice that represented substantial opposition that needed to be taken seriously. Because this coalition sprung into existence in response to Lehman's proposals, the bill's proponents were caught off-guard and needed to regroup. Fortunately for them, the WIPO treaties gave additional momentum to the proposal, and it passed anyway.
The SC coalition won passage of one part of the DMCA with remarkable ease. The DMCA contains a little-noticed, AHRA-like affirmative requirement that all VCRs sold in the U.S. implement a specific DRM technology. (112) The technology, developed by DRM vendor Macrovision, looks for a "do not copy" signal that movie studies can build into pre-recorded videos; if the signal is present, the VCR will not make a useful copy of the original. This provision was subject to no public scrutiny. Nothing like this section appeared in the versions that passed the House and the Senate; rather, it was "added during conference committee markup." (113) Thus, this AHRA-like mandate, of obvious benefit to Macrovision and also desired by the movie industry, was passed using a strategy designed to evade public input.
The most significant part of the anti-circumvention provisions, however, was and remains the three bans on circumvention and trafficking in circumvention devices. The law's passage was a wake-up call to those in the formerly cozy confines of the copyright debate. It saw the birth of the SFU coalition and its capacity to slow and even modify copyright industry-backed legislation. The SFU coalition was not yet powerful enough to stop the DMCA from passage, but catching Lehman off-guard and changing the bill was a promising beginning. In the years after, opposition to the DMCA became one of the main issues driving the growth of the SFU coalition. Before considering the efforts to reform the DMCA, however, the intervening years are worth brief consideration.
III. INTERLUDE: 1999 TO 2002
In the four years between the passage of the DMCA and the next major legislative fights over credibly advanced DRM proposals, several notable events happened that reshaped the playing field. The most visible events happened in technology and the courts, but some less widely discussed developments from that period have had comparable or even greater long-term political significance.
A. The Peer-to-Peer Explosion
Most visibly, 1999 was the year in which Napster first gave millions of users the ability to acquire nearly all of the world's recorded music for free. This represented a tectonic shift in the media industry; suddenly, the music industry wished that its biggest threat were from illicit cassette recordings (digital or otherwise) rather than the internet. Most readers will likely know at least the basics of the story, though of course there are more thorough examinations of the birth and early growth of Napster, (114) the record industry's reaction, (115) and the current state of the music industry in light of peer-to-peer (P2P) trading. (116)
Even during hearings leading up to the DMCA, the media industries were already expressing fears about the Internet. (117) If the untamed web of 1998 was scary, however, the explosive adoption of peer-to-peer software was mortifying. The record industry responded with a multi-pronged legal strategy. First, along with the motion picture industry, they sued the companies behind P2P technologies. They started by suing Napster, winning a finding that the company was liable for its users' widespread infringement. (118) After the 2001 Napster decision led to the service's shuttering, several newer companies sprung up to fill Napster's shoes; the recording and movie industries responded by suing these companies as well, resulting in the 2005 Grokster decision by the Supreme Court. (119) This decision substantially reduced the value of the Sony safe harbor, placing technology innovators in a much more precarious legal position. (120) Yet this strategy did not prevent the further development and adoption of still further P2P programs. (121) "In short, suing the technology hasn't worked," (122) as P2P software is still readily available and widely used for infringement.
The other part of the RIAA's legal strategy was suing thousands of users--approximately 35,000 from 2003 to 2008. (123) It was a public relations debacle, highlighted by lawsuits against "several single mothers, a dead person and a 13-year-old girl." (124) While the RIAA certainly embarked on this campaign with some reluctance and with a readiness to be subjected to some degree of public scorn, the suits did not even have the intended effect of discouraging P2P use. (125) The message that illicit P2P trading is illegal did get through to users, but peer pressure provided a far more powerful force in favor of continued use. (126) Beginning in 2008, the RIAA thus stopped pursuing new cases, though it continued with cases that had already begun. (127)
Even though the RIAA has stopped suing users and even scaled back its scorched-earth litigation against technological innovators, the group may never recover from the public relations damage. After its response to Napster, the trade group that had formerly had relatively little public visibility was suddenly the object of hatred by young people and technology enthusiasts across the country. While few of these people were being tapped for direct political action, their opposition to the RIAA's political agenda was suddenly boundless and effusive. (128) Even among the very substantial subset that do not trade illicit files, there has been little public support for the industry in its war against downloaders. This ethos of visceral resentment toward the RIAA and MPAA has also been reflected on and fueled by virtually every major technology website--from Wired to technology-themed blogs and user-generated content sites. on the rare occasions when high-profile sites do host a guest commentary from an SC ally, the stream of outraged user comments let the editors know that this viewpoint is not appreciated. (129) While the DMCA had passed in relative obscurity, the RIAA's actions quickly pushed copyright to the front page--while drawing millions to view the content industry as the enemy in a war between new technologies and copyright holders.
B. Senator Hollings's Proposal
Not content with the DMCA, the content industries and their allies in Congress soon advanced additional legislative proposals intended to limit internet users' ability to continue engaging in infringement. The most significant of these legislative proposals, if enacted, would have represented a change in copyright exceeding the significance even of the DMCA. That proposal, S. 2048, the Consumer Broadband and Digital Television Promotion Act, (130) "would have prohibited the manufacture, sale, import, or provision of any 'interactive digital media device' that didn't incorporate certain security technologies." (131) From computers to iPods to a good portion of today's advanced home audio/video equipment, the bill would have required government-specified copy protection to be built into each device.
Sponsored by Senator Fritz Hollings, S. 2048 created a firestorm. "Several consumer groups and electronics companies aligned themselves against" the bill. (132) A Salon headline warned, "U.S. Prepares to Invade Your Hard Drive," and noted that Hollings' sponsorship of the bill had moved him into the "axis of evil for technology." (133) Faced with this coordinated--and now predictable--resistance, the bill was unlikely ever to become law. As if this were not enough of an obstacle, the Hollings bill also ran into a problem of committee jurisdiction; by introducing this bill from the Senate Commerce Committee, Hollings stepped squarely on the Judiciary Committee's traditional domain of copyright legislation. This breach of jurisdiction upset Judiciary member Patrick Leahy, who is normally a reliable supporter of copyright industry requests but in this case actually threatened a filibuster. (134)
If the music and movie industries had wanted to give something like the Hollings bill a real shot at passage, they would have engaged the electronics and computer industries in the kind of negotiations that led to the passage of the AHRA. They also would have chosen the "right" committee to introduce the bill. Instead, Disney's then-CEO Michael Eisner, reportedly the industry voice who led to Hollings' sponsorship of the bill, (135) jumped several steps ahead in the process and moved forward with a sponsor that further reduced the odds of passage. There are a range of theories about why Eisner and Hollings teamed up on this effort, all the more so because the Hollings bill would have gone further than even other media companies and allied congresspersons supported, (136) meaning that the strategies they did choose sealed the bill's fate.
Rather than a sincere effort to change the law, the Hollings bill was far more likely intended as a rhetorical move--an addition to the conversation or an implicit threat to the technology sector, depending on one's perspective. It was reported as an effort to spur "Hollywood and Silicon Valley to redouble their efforts to find a technological fix to the problem of digital duplication.... In other words, think of Washington as a legislative cattle prod." (137) One could debate whether this prod was effective or counterproductive, though there is no clear link to any industry outcomes. The next April, Apple finally offered consumers a legitimate way to purchase most big-label music--contained within Apple's proprietary DRM scheme, FairPlay--with the iTunes Music Store. Many other stores soon cropped up selling their own packages of DRM-wrapped media. Yet it is not at all clear that the Hollings bill helped foster any of these outcomes. Instead, it took Apple--and even, to a large degree, Steve Jobs personally--to persuade a reluctant recording industry to embrace Internet distribution. (138) Once the money started rolling in from that agreement, deals with other companies became far more conceivable.
The Hollings bill did at least serve as a loud and clear threat to the technology industry: Make DRM systems that satisfy the content companies, or Congress might design and mandate one for you. It also made it quite clear to technology companies that they needed to pay more attention to the debate over copyright in DC. (139) This is especially significant because the technology sector is not united on copyright issues. Some are principled, permanent members of the SFU coalition; the clearest examples are nonprofits that support free (as in freedom) software and other copyrightable content, such as the Free Software Foundation (founded in 1985), the Mozilla project (created in 1998), and the Wikimedia Foundation (founded in 2003). In contrast, the commercial software industry (in particular, Microsoft and Adobe) and vendors of DRM technologies (e.g., Macrovision) are generally members of the SC coalition. The rest of the technology sector generally leans toward the SFU position but are better described as the "persuadable technology" (or PT) division or group. This division--which I do not label as a coalition since they do not necessarily act in coordination--is filled with very important potential allies for either the SC or the SFU coalition. Those in the PT group include the consumer electronics industry, makers of computer hardware, Internet service providers, web content companies, and online retailers. Collectively, these represent a significantly larger share of the economy than the SC-affiliated industries, (140) allowing them a real chance to swing the debate in either direction.
The bulk of the technology industry is persuadable on issues of digital copyright regulation. If proposed copyright legislation would drastically reduce consumer rights in a way that would sharply reduce the value of their wares, they will weigh in alongside the SFU coalition. Yet, as discussed herein in relation to the AHRA ([section] II), DMCA ([section] III), and broadcast flag ([section] VI), they are also willing to go along with increases in copyright as long as they can shape the legislation such that it reduces their liability or does not substantially reduce their profitability. Because of their substantial economic clout, the SFU and SC coalitions each spend a great deal of effort trying to draw this PT division to support their respective sides. To the extent the Hollings bill--as well as the suits against P2P companies--pushed the PT division closer to the SFU coalition, it probably had the ironic effect of harming the SC coalition's interests. Regardless of whether its impact led to any actual business decisions, then, the bill's political significance is hard to ignore.
C. NGOs Take a Central Role
In addition to rousing the slumbering giant of the technology sector, aggressive copyright industry litigation and lobbying helped spark the permanent involvement of nonprofit groups. Leading up to the passage of the DMCA, the Internet and media policy NGOs had little to say by way of opposition. The Electronic Frontier Foundation (EFF), which was founded in 1990 as roughly the online equivalent of the ACLU, could have joined as an opponent of the DMCA's anti-circumvention provisions. Instead, in 1995, the Washington Post quoted then-chair Esther Dyson as supporting Lehman's proposal. (141) The Digital Future Coalition was really just an umbrella group for other actors, and it was conceived, founded, and run by people who had day jobs other than as full-time policy advocates. While this was an important start, there were no NGOs dedicated to the public's side in the copyright debate.
In the early 2000s, however--especially in 2001--NGOs got heavily involved, and computer science researchers became the cause celebre that helped spur such heavy involvement. First, in 2001, a team of computer scientists at Princeton faced legal threats for their study of a DRM system then in development. The Secure Digital Music Initiative (SDMI), a coalition of recording industry and technology firms, was developing the DRM system, and the RIAA caught the researchers utterly off-guard with surprisingly stark legal threats. Lawrence Lessig tells the story:
Using encryption, SDMI hoped to develop a standard that would allow the content owner to say "this music cannot be copied," and have a computer respect that command. The technology was to be part of a "trusted system" of control that would get content owners to trust the system of the Internet much more. When SDMI thought it was close to a standard, it set up a competition. In exchange for providing contestants with the code to an SDMI-encrypted bit of content, contestants were to try to crack it and, if they did, report the problems to the consortium. [Princeton Professor Ed] Felten and his team figured out the encryption system quickly. He and the team saw the weakness of this system as a type: Many encryption systems would suffer the same weakness, and Felten and his team thought it worthwhile to point this out to those who study encryption. ... And though an academic paper describing the weakness in a system of encryption should ... be perfectly legal, Felten received a letter from an RIAA lawyer that [threatened legal action]. (142)
The RIAA invoked the DMCA in its threats to Felten's team. Of course, it is a rare event when scholars are threatened with legal action for attempting to share their research results at an academic conference. This drew substantial publicity--and much of it negative--for the DMCA. The researchers were able to attract substantial donations of money, pro bono legal work, and favorable publicity to support their case, all of which led the SDMI attorneys to drop the suit--though not before the ordeal wreaked professional havoc for the researchers. (143) The Electronic Frontier Foundation, which had not previously been a major player in copyright politics, went to work pro bono on Felten's behalf. The EFF gave Felten's team the kind of legal and public relations resources that led the RIAA to drop its suit. (144) Even after the immediate legal threat was withdrawn, Felten and the EFF still wanted a court precedent to create a legal umbrella over his research and work like it, so they filed a suit seeking such a ruling. Since the recording industry had backed down, however, the New Jersey Federal District Court dismissed the case, and Felten's side declined to pursue an appeal. (145)
Also in 2001, Russian programmer Dmitry Sklyarov faced his own, even more serious legal problems. During a visit to the United States, he was arrested and jailed for nearly a month, charged with criminal violations of the DMCA. Sklyarov was a PhD student researching cryptography and an employee of Russian software firm Elcomsoft. He had helped create a program called the Advanced eBook Processor, which removed the restrictions in Adobe Systems' eBook software. After he gave a presentation about the software at the 2001 DEF CON hacker (146) convention in Las Vegas, FBI agents arrested him and charged him with trafficking in a circumvention device for profit, a criminal offense under [section] 1204. After several weeks in jail, Sklyarov was released on the condition that he testify against his employer Elcomsoft. In 2002, the jury found the company not guilty; they believed the company's defense of not knowingly violating the law. (147) Again, the EFF worked on behalf of the defendant, and again they were able to leverage the case into substantial negative publicity against the DMCA. While the EFF had not previously been involved in copyright litigation or advocacy to any substantial degree, the Felten and Sklyarov cases drew them immediately into the very center of the fray. As I discuss elsewhere, this entry was not temporary, but is still reflected by their central place in the copyright debate. (148)
Likewise, in 2001, the D.C.-based NGO Public Knowledge was born. (149) The group was founded largely to serve as a permanent D.C. presence to counterbalance the content industry's lobbying efforts--or, as they put it more positively on their site, the group "preserves the openness of the Internet and the public's access to knowledge, promotes creativity through balanced copyright, and upholds and protects the rights of consumers to use innovative technology lawfully." (150) As discussed elsewhere, (151) Public Knowledge plays an absolutely central role in the SFU coalition's DC presence. During congressional hearings on copyright, they are often the only NGO present. By 2002, Public Knowledge President Gigi Sohn was already appearing in the national media as a voice for moderation in copyright law. (152)
D. Scholars Step into the Spotlight
Finally, the period from 1999 to 2002 was the beginning of a period of major public outreach by scholars. Peter Jaszi might have put the Digital Future Coalition in motion, but most outside the world of copyright are (unfortunately for them) not familiar with Jaszi or with the other key scholars who were the heart of the DFC. (153) In sharp contrast, by the early 2000s, law professor Lawrence Lessig had appeared in public so often that he became known to millions as the face of a growing movement to reform copyright. He published several books aimed at non-lawyers, (154) helping to raise a high degree of public consciousness around questions of Internet design and regulation. Lessig also served as the attorney for Eric Eldred in Eldred's eponymous case, argued in 2002 and decided in 2003. (155) They asked the Supreme Court to overturn the 1998 Copyright Term Extension Act, (156) which extended copyright terms by 20 years--even retroactively. They failed to get their desired ruling, but the case helped bring additional attention to the fair use coalition's message on copyright law. (157) While Lessig's role has been singular, many other scholars have also taken the SFU coalition's message to the public--not only legal scholars, (158) but also scholars in fields such as communication (159) and computer science. (160) Once copyright became a hot issue--especially, as in Ed Felten's case, once it became a hot issue in some researchers' laps--these scholars were happy to help spread the agenda of copyright moderation, not only writing volumes online, but also appearing in newspapers and on radio and TV news.
The combination of all these events turned the period from 1999 to 2002 into an inflection point in the history of copyright. Before that point, copyright was perceived as a topic of little interest to the general public, but the subject suddenly captured the public's attention. (161) For a brief window, it seemed like the Internet might destroy the media industry's business model of large, centralized distribution systems; the future of music, movies, publishing, and news media seemed to hang in the balance. Digital utopians like John Perry Barlow promised that the Internet would remove the need for centralized media industries and for copyright protection in general. (162) Meanwhile, some agreed with Barlow's contention in fact, but took up a wholly different estimation of that outcome's desirability--promising doom and gloom for the future of cultural creativity. (163) In hindsight, the debate of ten years ago seems radically overstated, but at the time, many believed we had to choose between continued Internet freedom and the continued existence of the entertainment industries. While the same tension remains today, and though Manichean rhetoric is still not hard to find, everyone knows the policy trade-off between digital freedom and industry profits are a matter of degree rather than an either-or choice. One good example of this later debate was the proposal to reform the DMCA.…