The following summarizes the key sections of the DMCA that relate to libraries. For more in-depth analysis of the DMCA and its impact on libraries:. Five years after passage, the DMCA continues to be a controversial act with far-reaching impact that is supporting the attempts of copyright holders to control access to and downstream use of their content. The doctrine of "fair use" has never more been threatened than it is now.
There have been several important court cases based on challenges to provisions in the DMCA and some new legislation is under consideration to redress the balance some believe has been undermined by this law. ALA has contributed "friends of the court" briefs in some of the legal cases Universal v. Remeirdes, a. The controversy surrounding the DMCA continues also in attempts to pass legislation that seeks to protect fair use in the digital environment and to extend the control of copyright owners.
It was noted that when Congress was presented with concrete evidence of harm to independent service organizations after the MAI v. Peak decision, Congress took steps to remedy the situation. Similarly, section of the DMCA created limitations on the remedies available against Internet service providers for incidental copying that is essential to the operation of the Internet.
The other major concern involving section concerned the scope of the archival exemption. Proponents of amending section raised two primary points. First, they argued that the policy behind the archival exemption needs to be updated to encompass all digital works rather than just computer programs.
Since computers are vulnerable to crashes, viruses, and other failures, downloaded music, electronic books and other works face the same risks that precipitated the exemption for computer programs. Some argued that all digital media is susceptible to accidental deletion or corruption. Consumers should be permitted to protect their investments in works. Proponents of expansion of the archival exemption offered another argument - section does not comport with reality.
Systematic backup practices do not fit the structure of section , which is limited to making a copy of an individual program at the time the consumer obtains it. It was argued that such a discrepancy between the law and commonly accepted practices undermines the integrity of the law. Such a fundamental mismatch creates the perception that the law need not be literally followed, thereby creating a slippery slope.
Opponents of an expansion of the archival exemption countered that the justification behind section no longer exists. Consumers need merely retain the original CD as a backup, since it is a simple operation to reinstall software that is compromised. In addition, these opponents argued that there is currently an inaccurate public perception of the scope of the backup copy exception.
These commenters argue that many invoke the archival exception as a shield to commercial piracy. Opponents of an amendment to section asserted that even if there is a mismatch between actual backup practices and the current exception, no one has been harmed by it.
Commenters noted that no one has been sued as a result of backing up material outside the scope of section , and no one has stopped performing backups.
It was also argued that if a particular activity does not fall within the terms of section , it may nevertheless be privileged under the fair use doctrine. There were assorted other comments and testimony on a range of issues. There were concerns raised about the potential adverse effects of sections and on the traditional concepts of first sale, fair use, and the archival and preservation exemptions. It was argued that these prohibitions are likely to diminish, if not eliminate, otherwise lawful uses.
It was asserted that copyright management information may also have the capacity to reveal user information in a manner that would chill legitimate uses of copyrighted works.
Another prevalent concern was that licenses are being used increasingly by copyright owners to undermine the first sale doctrine and restrict other user privileges under the copyright law.
These commenters argue that this trend is displacing the uniformity of federal copyright law with a wide variation of contract terms that must be evaluated and interpreted. This poses a particular challenge to large institutions, such as universities and libraries, in determining legal and acceptable use in any given work. A number of commenters argued that federal copyright law should preempt such license terms.
Other commenters argued that Congress did not intend copyright law broadly to preempt contract provisions. They argue that the freedom to contract serves the interests on both copyright owners and the public by allowing greater flexibility in determining pricing, terms and conditions of use, and other options.
We are not persuaded that title I of the DMCA has had a significant effect on the operation of sections and of title The adverse effects that section , for example, is alleged to have had on these sections cannot accurately be ascribed to section The causal relationship between the problems identified and section are currently either minimal or easily attributable to other factors such as the increasing use of license terms.
Accordingly, none of our legislative recommendations are based on the effects of section on the operation of sections and The arguments raised concerning the adverse effects of the CSS technological protection measure on the operation of section are flawed. The first sale doctrine is primarily a limitation on copyright owner's distribution right.
Section does not guarantee the existence of secondary markets for works. There are many factors which could affect the resale market for works, none of which could be said to interfere with the operation of section The need for a particular device on which to view the work is not a novel concept and does not constitute an effect on section A plausible argument can be made that section may have a negative effect on the operation of the first sale doctrine in the context of works tethered to a particular device.
In the case of tethered works, even if the work is on removable media, the content cannot be accessed on any device other than the one on which it was originally made. This process effectively prevents disposition of the work. However, the practice of tethering a copy of a work to a particular hardware device does not appear to be widespread at this time, at least outside the context of electronic books.
Given the relative infancy of digital rights management, it is premature to consider any legislative change at this time. Should this practice become widespread, it could have serious consequences for the operation of the first sale doctrine, although the ultimate effect on consumers is unclear.
We also find that the use of technological measures that prevent the copying of a work potentially could have a negative effect on the operation of section To the extent that a technological measure prohibits access to a copyrighted work, the prohibition on the circumvention of measures that protect access in section a 1 may have an adverse impact on the operation of the archival exception in section Again, however, the current impact of such a concern appears to be minimal, since licenses generally define the scope of permissible archiving of software, and the use of CD-ROM reduces the need to make backup copies.
Given the minimal adverse impact at the present time, we conclude that no legislative change is warranted to mitigate any effect of section on section There is no dispute that section applies to works in digital form. Physical copies of works in a digital format, such as CDs or DVDs, are subject to section in the same way as physical copies in analog form. The question we address here is whether the transmission of a work to another person falls within - or should fall within - the scope of section The first sale doctrine is primarily a limitation on the copyright owner's exclusive right of distribution.
It does not limit the exclusive right of reproduction. While disposition of a work downloaded to a floppy disk would only implicate the distribution right, the transmission of a work from one person to another over the Internet results in a reproduction on the recipient's computer, even if the sender subsequently deletes the original copy of the work. This activity therefore entails an exercise of an exclusive right that is not covered by section Proponents of expansion of the scope of section to include the transmission and deletion of a digital file argue that this activity is essentially identical to the transfer of a physical copy and that the similarities outweigh the differences.
While it is true that there are similarities, we find the analogy to the physical world to be flawed and unconvincing. Physical copies degrade with time and use; digital information does not. Works in digital format can be reproduced flawlessly, and disseminated to nearly any point on the globe instantly and at negligible cost. Digital transmissions can adversely effect the market for the original to a much greater degree than transfers of physical copies.
Additionally, unless a "forward-and delete" technology is employed to automatically delete the sender's copy, the deletion of a work requires an additional affirmative act on the part of the sender subsequent to the transmission. This act is difficult to prove or disprove, as is a person's claim to have transmitted only a single copy, thereby raising complex evidentiary concerns. There were conflicting views on whether effective forward and delete technologies exist today. Even if they do, it is not clear that the market will bear the cost of an expensive technological measure.
The underlying policy of the first sale doctrine as adopted by the courts was to give effect to the common law rule against restraints on the alienation of tangible property. The tangible nature of a copy is a defining element of the first sale doctrine and critical to its rationale. The digital transmission of a work does not implicate the alienability of a physical artifact. When a work is transmitted, the sender is exercising control over the intangible work through its reproduction rather than common law dominion over an item of tangible personal property.
Unlike the physical distribution of digital works on a tangible medium, such as a floppy disk, the transmission of works interferes with the copyright owner's control over the intangible work and the exclusive right of reproduction. The benefits to further expansion simply do not outweigh the likelihood of increased harm. Digital communications technology enables authors and publishers to develop new business models, with a more flexible array of products that can be tailored and priced to meet the needs of different consumers.
We are concerned that these proposals for a digital first sale doctrine endeavor to fit the exploitation of works online into a distribution model - the sale of copies - that was developed within the confines of pre-digital technology. If the sale model is to continue as the dominant method of distribution, it should be the choice of the market, not due to legislative fiat.
We also examined how other countries are addressing the applicability of the first sale - or exhaustion - doctrine to digital transmissions. We found that other countries are addressing digital transmissions under the communication to the public right and are not applying the principle of exhaustion, or any other analog thereof, to digital transmissions. We recommend no change to section at this time. Although speculative concerns have been raised, there was no convincing evidence of present-day problems.
In order to recommend a change in the law, there should be a demonstrated need for the change that outweighs the negative aspects of the proposal. The Copyright Office does not believe that this is the case with the proposal to expand the scope of section to include digital transmissions.
The time may come when Congress may wish to address these concerns should they materialize. Thus the safe harbors, while imperfect, have been essential to the growth of the Internet as an engine for innovation and free expression. EFF has fought hard against the DMCA circumvention provisions in the courts, Congress and other forums, and has fought equally hard to make sure the DMCA safe harbors shelter innovation and creativity. Learn more through the links below. Security research is vital to protecting the computers upon which we all depend, and protecting the people who have integrated electronic devices into their daily lives.
To conduct security research, we need to protect the researchers, and allow them the tools to find and fix vulnerabilities. The Digital Millennium Copyright
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