The Digital Millenium Copyright (Holders) Act : an explanation of the current balance of power in digital copyright law (2011).

Jacob Ratliff
University of Denver
Denver, Colorado, United States

Library Student Journal,
June 2011

Abstract

The Digital Millennium Copyright Act (DMCA) was a modification to the Copyright Act of 1976 that was implemented in 1998 in the United States. The DMCA was implemented with the intention of creating amplified protections for copyright holders because of the threat of increased Internet piracy. This paper will show that with the enactment of the DMCA, however, the United States saw a transfer of power within the realm of copyright to the copyright holder. The copyright holder was able to gain power because of the changes made regarding fair use and the availability of digital encryption. These changes have a significant impact upon the library world, especially libraries that deal with digital items. In addition, this paper also gives some suggestions as to how libraries can be copyright-compliant in the digital world.

Introduction

The Digital Millennium Copyright Act (DMCA) grew out of the Copyright Act of 1976. The Copyright Act of 1976 was developed to update copyright law to reflect current technology, which at that time was the photocopy machine (Bernfield, 2006, p.3) Copy machines were seen as a threat to copyright, especially within libraries, because of the unlimited number of copies of protected materials that an individual could make. The same threat to copyright infringement was perceived with the advent and growth of the Internet. Digital objects could be copied and shared without the knowledge or consent of the copyright owner, similar to the copy machine, but on a much larger scale. Because of the rampant piracy that became more prevalent with the advent of the Internet, "copyright seemed meaningless" (Akhil and Aditi, 2008, p. 2). The development of the DMCA was meant to counter this threat.

Since its passage, the DMCA has limited how users can access digital copyrighted content, especially through libraries. While this is a positive move in combating piracy and illegal copyright infringement, it has also begun to intrude upon the use of copyrighted works. The passage of the bill was intended to extend the usage and protection of copyright into the digital realm, but it has also resulted in upholding the rights of copyright holders above those of users. This essay will examine two key aspects of the DMCA, fair use and encryption, and the ways in which they have served to shift the copyright balance of power.

It should be noted at the outset that the Copyright Act of 1976 was never supposed to address copyright in regard to specific technologies. Within the United States, "copyright law was designed to be technologically neutral. Its principles, such as fair use… are designed to apply regardless of the technology used" (Lipinski, 2003, p.825). With that concept in mind, copyright law should be applied without regard to technology, protecting the rights of all parties involved. The use of copyright should not be changed depending upon the medium in which an object exists; a digital object should not have increased copyright restrictions compared to an analog object. The implementation of the DMCA, however, has done just that.

Fair Use and the DMCA

Fair use is a copyright concept that is argued most heatedly. Black's Law Dictionary (6th edition) defines fair use as:

A reasonable and limited use of copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in a parody. Fair use is a defense to an infringement claim, depending on the following statutory factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the economic impact of the use. (p. 598)

The significance of fair use is that it allows researchers, scholars, educators, and libraries to use portions of copyrighted works. Fair use is important "for researchers and scholars… [and] access to such works from the library's collection are important and no limitation should be made on such noncommercial uses" (Lutzker, 1999, p.24). The copyright holder loses nothing when researchers and scholars use a work for study, reference, or citation. In fact, using copyrighted works for these purposes increases the visibility and utility of a copyrighted work, increasing its commercial appeal.

Libraries are one of the core entities that rely upon fair use for their existence, no matter the scope or purpose of the library. As a fair use industry, the library, even within a for-profit model, is still contributing because, according to the Computer and Communications Industry Association (CCIA), "gross revenue from fair use industries was $4.5 trillion, employment in fair use industries was 10.8 million with a payroll of $1.2 trillion, and exports related to fair use were $194 billion" (Pike, 2007, p. 20). This statistic, from 2006, demonstrates the impact that fair use industries, including libraries, have on the United States, even if it is an indirect one.

Interlibrary loan (ILL) is a good example of how fair use is relied upon by libraries, and of how the DMCA has curtailed libraries' ability to function. ILL permits patrons to borrow materials from libraries that are out of geographic reach; under the DMCA, this practice is not allowed for copyrighted digital objects. A library "may loan [a] digital copy to another library which has lawful possession of the original. However, neither library may allow a member of the public to take the digital copy away from the library" (Lutzker, 1999, p. 23). This results in different rules for ILL, limiting how libraries can serve the public. As a result of the DMCA's provisions, libraries are limited in how specific types of materials can be used, thus eliminating the concept of technological neutrality within copyright law.

Fair use rights were originally instituted to balance the rights of copyright holders and copyright users. Before the DMCA, copyright was balanced using a "first sale doctrine" system that transferred the copyright of an item (not the work, just the item) from the copyright owner to the copyright user when the object was bought. For example, when an individual buys a book, he or she has the ability to give the book to a library or sell it at a used book sale without consulting the original copyright holder. The issue that has arisen regarding fair use in the digital world is that "these counterbalancing rights get all out of balance when you introduce concepts like 'pay per read,' 'pay per view,' and 'digital encryption' — all of which reduce 'fair use' rights" (Van Horn, 2002, p. 1). Under the DMCA, buying a copyrighted digital object does not transfer the copyright, allowing the user to do with that object as he or she sees fit. The object cannot be passed along to another user or a copy made as a backup. The copyright remains with the copyright owner for that object, unlike in the analog world, thus limiting the purchaser's rights. In the analog world, purchasing a book allows for the customer to have ownership of that particular book; the opposite is true within the digital world. By buying a digital copy of a book, (e.g. for a Kindle), the purchaser does not gain the rights to that object; rather, they are retained by the copyright owner, generally through an End User License Agreement (EULA).

Libraries were granted a few concessions in the DMCA to balance the increased protection for copyright holders. The first is that libraries are permitted to make "up to three (3) copies [of an object]... one for archival purposes, one as a master, and one as a use copy from which other allowable copies may be made" (Allner, 2005, p. 183). This concession allows libraries to continue to act as repositories for information that the public can access, even though the DMCA will challenge how libraries are able to act in terms of the storage of recorded history (Lutzker, 1999, p. 27). Without this concession, libraries would have been relegated to acquiring only analog records due to the monumental costs that would have been associated with buying multiple digital copies of resources. Even with this concession, the DMCA is still not library-friendly, but does allow libraries to remain current with the technological times and advances.

The DMCA also granted libraries a "very limited 'browsing right' to circumvent a [Technological Protection Measure] TPM in order to review a work that they considered purchasing or licensing. However, once the review was completed, the work could not be re-accessed" (Lutzker, 1999, p. 9). This evaluation period is a money-saving concession within the DMCA for libraries. The money saved by allowing objects to be browsed once before purchase does not offset the power granted to copyright holders under the DMCA, but it allows libraries to have a place within the world of digital information.

Encryption and the DMCA

The provisions within the DMCA that relate to encryption technology have also served to throw the balance of fair use rights to the copyright holder, resulting in limitations of the uses of copyrighted material outside of the commercial world. Digital objects that have "encryption [deny] us the 'fair use' rights we have traditionally had to items we've lawfully purchased" (Van Horn, 2002, p. 1). This may help to decrease the rate of piracy, but it also restricts how law-abiding consumers can use copyrighted materials. Within the analog world, purchasing an item entitles the user to the copyright of that particular item, but that is not the case within the digital world. Buying a CD allows the user to play that CD on any technology that can play it, but "even if you legally own an audio CD that is copy protected, you cannot disable the copy protection to 'place shift' the music, say, to your MP3 player" because of the DMCA (Van Horn, 2002, p. 1).

The key point within that statement is the disabling of the copyright protection. Place shifting can be allowed, but disabling the copy protection violates the copyright. Rather than just owning the object outright, a user "must also have the permission to gain access to the work to make a fair use of it in the first instance. It would be like having a public park surrounded by private land" (Lipinski, 2003, p. 829). The public park is available to anyone; in other words, it is fair use. However, it is surrounded by the private land of encryption, and according to the DMCA, trying to develop or use any software that would build a path or bridge over that private land to the public park is illegal. The copyright holders are only acting in their interest to protect their copyrighted works, but, as is evident, the rights of copyright users have been eroded by the DMCA in favor of the copyright holders, circumventing the technological neutrality which copyright originally favored.

The Implications of the DMCA

With the advent of the internet, copyright holders were in need of increased protection for copyrighted works because of the increased threat of piracy. Because of the Internet, "'free content' has become the rule and the messy legal requirements are often ignored, to the detriment of writers ('content providers')" (Leddy, 2007, p. 8). Content providers have always had to deal with piracy, but Peer to Peer [P2P] Networks have

the effect which can be compared to the impact of malignant cancer on the body of the patient. Indeed, it has the potential to destroy the prospects of securing fair returns on labor… basically defeating the stimulus which motivated the creation (Akhil and Aditi, 2008, p. 2).

The DMCA was enacted to help provide some protection to content providers within the digital world. Copyright provides protection for content creators so that there is an incentive to create and distribute works. Piracy takes that safety away and harms content creators. Without content creators there would be no need for fair use, because there would be no libraries, no Internet; there would be nothing to fill books or the web. Because of piracy, "creators aren't just competing with millions of their peers to see who can produce and deliver the best content. They must now also compete against the pirates who feel entitled to something for nothing" (Carnes and Hudgins, 2009). The entitlement that Carnes and Hudgins speak of is not just affecting the legal system; as they imply, it is also a statement of the morality of pervasive piracy plugging away at culture. Standler (2008) believes that

This culture is accurately described by: "I want it. I can make a free copy without being caught or punished. Therefore, I am entitled to a free copy for myself." When expressed in such stark terms, the brazen lack of morality and appalling lack of respect for property of others is exposed. (p. 55)

Beyond the legal and moral ramifications, piracy can lead to detrimental economic effects, because the copyright industries, such as TV, movies, and the music industry, "account for almost 5% of the U.S. gross national product" (Lewis, 2007, p. 147). In addition, these copyright industries, in 2007 alone, contributed "$126 billion in foreign exports, more than 11 million jobs and $1.5 trillion in yearly economic growth" to the United States (Carnes and Hudgins, 2009). Allowing piracy to continue without any steps to curtail it would severely harm the economy of the United States. Without the economy surrounding the buying and selling of different types of media, there would be a large shift in where money in the United States goes.

With all of the evidence against piracy presented (legal, moral, and economic), "[we] don't have to guess who's right about the effect of copyright on culture. History offers a clear answer: Well-defined and defended intellectual-property rights have resulted in tremendous access to culture and economic growth" (Carnes and Hudgins, 2009). This is why the DMCA was considered necessary for the United States. The trouble is that it is difficult to restrict how pirates can gain copyrighted materials without harming non-pirate consumers at the same time, so the rights of all consumers, legal or illegal, are decreased.

This is primarily due to the fact that the burden of protecting a copyrighted work has shifted to the copyright user, rather than remaining with the copyright holder. If a user or an Online Service Provider (OSP), such as a library, has the use of copyrighted material, it is up to that user or OSP to protect the copyright. Additionally, "if a content owner reasonably believes that a site misuses copyrighted matter," the content owner can send a notice to the user or OSP to remove the content (Lutzker, 1999, p. 17). This changed the burden of proof for copyright infringement from the copyright holder to the copyright user. The copyright holder does not even have to be correct in the assumption of how the copyright is being infringed to send the takedown notice. Van Horn (2002) states that "in the past, a copyright owner had to go to court to prove infringement; today, copyright owners can simply contact the online provider if they believe there is an infringement" (p. 1). While this may save the time and money of the copyright holders, copyright users and OSPs now bear the burden of copyright protection rather than the copyright holder. According to Lipinski (2003), "this is the triumph of technological control over public access rights" (p. 830). While takedown notices do not always have to be immediately complied with, not complying with the takedown notice requires legal action to be taken, which is expensive and time consuming; it is not something that many can afford.

Meanwhile, the burden of cost for proving fair use is now in the hands of the user, providing the copyright holders with the legal power to dominate in the realm of copyright. Users that do not have the legal or monetary backing to prove fair use can be easily bullied by copyright holders (e.g., with takedown notices). As stated earlier, Van Horn (2002) believes that

The burden of proof is shifted to the provider or user. Thus, somebody else — the online providers — has to do the policing for the copyright owners. This makes the Recording Industry Association of America, the Motion Picture Association of America, Disney, and lots of big content owners very happy. As you might guess, the powerful "Hollywood lobby" or "copyright cartel" managed to persuade Congress to look out for its interests. And many of our rights were given away by our elected representatives. (p. 2)

The copyright balance has shifted. While the threat of piracy is very real and tangible, the DMCA focused on upholding the rights of the copyright holders, not providing ease of access and use for copyright users. The American Library Association, in the voice of Arnold P. Lutzker Esq. (1999), summed up this idea by stating that "[the drafters of the DMCA] suggested that the new law should protect 'investment,' not reward 'creativity'" (p. 6). Concepts such as this only help to support the ideas that Van Horn proposed above: that big corporations were behind the design of the DMCA.

Takedown notices were just one part of the DMCA that favored copyright owners rather than individual users. The DMCA also limited access to copyrighted materials, not just through restrictions in fair use, but through technological means as well. Digital objects are encrypted to travel in a digital world, and "those who have control of a technologically dependent medium, the digital medium for example, in fact control both the ownership and the access to the work, without heed to users' rights" (Lipinski, 2003, p. 825). As a result, user rights are non-existent because the control has been given to the copyright holder as a type of a gatekeeper or prison warden. Users can still access the information, but it requires the supervision or permission of the copyright holder.

Additionally, "copyright owners who choose to make available their works in digital formats and… assign technological protections measures to them are granted additional enforcement rights under the copyright law; moreover, this is an enforcement schema that operates independent of any copyright infringement" (Lipinski, 2003, p. 830). These enforcement rights come in the form of terms of use statements, which are created by the copyright holder, are not associated with copyright law, and need to be accepted by the user before the digital object can be accessed. The difficult part is that "the line between copyright and terms of use statements is fuzzy" (Schlosser, 2009, p. 382). While associated with each other, there is not always a requirement for terms of use, and the terms of use can extend beyond what is required by the copyright. This extension allows copyright holders to gain more rights beyond what the DMCA has already granted. Because of this, Schlosser (2009) postulates that "statements that explicitly mention copyright… are often used to convey terms of use information as well. Users are unlikely to recognize that these terms are not based in copyright law and that they may, in fact, conflict with it" (p. 382). The bad news is that even if terms of use statements conflict with copyright law, there is no way to avoid them without a legal battle, because "the use of equipment or services that circumvents technology limiting access to copyrighted works is prohibited" (Allner, 2005, p. 183). This even includes developing technology that would be used in this way. As a result, the DMCA was a victory for copyright holders, limiting the access and fair use that copyright users had.

What can Libraries and Librarians Do?

Because the DMCA and how it affects libraries do not exist within a vacuum, it is important to understand the DMCA and its provisions. Standler (2009) states that "the cliché 'ignorance of the law is no excuse' is a valid statement of law" (p. 61). Because of this, libraries, librarians, and other information institutions must be prepared to know and understand the different provisions of copyright law to protect the institution, the library, the workers within the library, and the libraries' patrons. Workers within libraries can do plenty to educate themselves and others and prevent copyright infringement. While larger institutions may be able to fight the DMCA directly, smaller institutions need to take smaller steps to protect themselves from violating the new copyright restrictions that have come with the DMCA.

To an individual or small institution, managing copyright may not seem like a big problem because of a misunderstanding about how the litigation for copyright could proceed. However, if this lackadaisical approach to copyright infringement is taken, and "significant violations were found... the plaintiff would sue the faculty member, the library, and the institution in order to reach the parties with the deepest pockets" (Malamut, 2000, p. 6). Education about copyright infringement is then a matter of protecting the entire institution, rather than just the library, the individual library worker, or the patron. If notices about copyright are prevalent in the library, and attached to all copyrighted materials, this helps to educate everyone connected to the library about copyright, as well as providing firm reminders to all individuals involved of what constitutes copyright infringement. While libraries have always had to worry about copyright, the added depth and complication of the DMCA means that libraries and librarians need to attend to copyright more diligently. The digital world is much more difficult to control, so it is up to libraries and librarians to educate patrons about copyright to protect all of the users, the institution, and the library itself.

Beyond simple education, libraries and librarians can take proactive steps to decrease the chance or opportunities for copyright infringement within institutions. As was decided with the Texaco case (American Geophysical Union v. Texaco, Inc., 60 F. 3d 913 2d Cir. 1995), fair use allowances can be exceeded when an individual or institution creates a personal or smaller library from copies of copyrighted works. To prevent this, Burke and Heron (2005) suggest that libraries "circulate table of contents, in lieu of complete issues, to researchers, allowing them to designate articles of interest for possible photocopying" (p. 19). A step like this, as opposed to simply providing full text to all users, may seem to be just additional work, but if users begin stockpiling the full text of all articles, they are in direct violation of copyright. This is true for both photocopies and digital copies of materials.

Discussing photocopies in the digital world may seem outdated, but the problem is the same: creating multiple copies from a single source. The distribution of these copies is much easier in the digital age, so libraries and librarians must be increasingly careful to not violate copyright. This is not a new problem; it has just become more rampant with the ease of distribution of resources in the digital world.

While the DMCA was implemented to help bring piracy under control within the realm of copyright, it has added significant measures that have restricted the freedom of information. The increased digital protection for copyrighted works was viewed as a needed protection for copyright holders and content creators because of the rampant piracy that had been amplified with use of the Internet. However, the DMCA resulted in copyright users losing many of their rights, including fair use. At the same time, copyright holders, including large corporations, had their rights protected above and beyond even what the DMCA provisions. Ultimately, "this is the triumph of technological control over public access rights" (Lipinski, 2003, p. 830).

References

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Author's Bio

Jacob Ratliff is a graduate of Metropolitan State College of Denver with a Bachelors in History and English Literature. He graduated from the University of Denver's Library and Information Science program with concentrations in Knowledge Management and Information Science and Technology.

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