A Political History of DRM and Related Copyright Debates, 1987-2012

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Especially in light of the Felten and Sklyarov cases, the budding SFU coalition quickly came to see the DMCA as an extremely objectionable law in need of reform. The stories of programmers who had been harassed and even jailed quickly galvanized academics, programmers, and inventors, adding thousands to the ranks of the newly or potentially mobilized. While the Felten and Sklyarov cases are just part of the DMCA reform movement's story--and efforts to reform the DMCA are just part of the intellectual property reform movement--these two stories served as a mobilizing wake-up call for untold thousands of new entrants into the copyright debate.

A. Reform Proposals

DMCA reform became a serious possibility once it attracted congressional allies. Most significant of these was Representative Rick Boucher, Democrat of Virginia. In the 108th and 109th Congresses, he introduced bills to curtail the reach of the DMCA. (164) Also in the 108th Congress, Representative Zoe Lofgren, Democrat of California, introduced a similar DMCA reform bill, cosponsored by Boucher. (165) These bills would have modified the basic ban on circumventing copy controls, allowing circumvention to aid otherwise legal activities such as fair use. They also would have scaled back the anti-trafficking provisions, allowing companies to develop and sell tools with substantial noninfringing uses. In short, the bills would have tethered charges of illegal circumvention to charges of infringement, and they would have applied the Sony standard (166) to the development and distribution of tools capable of circumvention. Like Sony's Betamax video recorder, companies would be able to develop circumvention devices that are capable of substantial noninfringing uses.

The DMCA would be quite different if such a reform passed. For instance, the law would still forbid hacking DVDs en route to selling bootlegged copies; in addition to the civil and criminal penalties for infringement, a would-be bootlegger could also face the DMCA's civil and criminal penalties. If reformed as Boucher envisioned, however, the DMCA would not prevent a consumer from hacking the DRM on a legally purchased DVD to transfer the film to her laptop--an activity that is illegal if common today.

Technology firms could also develop and sell circumvention devices under such a reform, as long as these tools were capable of substantial noninfringing uses. Since DRM systems generally prevent some noninfringing uses, (167) most circumvention tools are likely capable of substantial noninfringing uses. This would have been quite a legal shield for would-be makers of circumvention devices, spreading the tools to circumvent DRM from the dark corners of the Internet into the open--and even on to the shelves of big box retailers.

If these reforms had passed, the DMCA would be less frightening for the likes of Ed Felten and Dmitry Sklyarov. Legal threats against encryption researchers would be less frequent and less likely to succeed. This might not be enough to comfort researchers, however. Indeed, given the current law's exemption for encryption research, (168) Felten likely would have prevailed had the RIAA actually sued--rather than merely threatening a suit. Yet that is little comfort for an individual in the face of a legal threat from a major industry trade group. Since the court's dismissal of Felten's suit, no researcher has faced similar legal threats for academic encryption research. If passed, the reform would further increase any such researcher's odds of success in court, but even the threat of a suit is often enough to chill certain activities. As Felten explains, "For me and my colleagues, probably wasn't enough. Even a 99% chance of getting to keep our houses and savings wasn't enough. Nor should it be." (169)

If the potential difference for academic researchers is important but small, the impact of such a reform on for-profit activities would be enormous. …