DMCA Week, Part I: How the DMCA Was Born

Ten years ago tomorrow, on October 28, 1998, the Digital Millennium Copyright Act was signed into law. The DMCA’s anti-circumvention provisions, which became 17 USC Section 1201, made it a crime under most circumstances to “circumvent a technological measure that effectively controls access to” a copyrighted work, or to “traffic in” circumvention tools. In the default case, the new law meant that a copyright holder who used DRM to control access to her copyrighted material could exercise broad new control over how her material was used. If an album or film were distributed with DRM allowing it to be played only on alternate Tuesdays, or only in certain geographic regions, then these limits enjoyed the force of law–to go around them might not involve a a violation of copyright per se, but it would involve circumventing the access control, an activity that the DMCA made a felony.

Over the course of this week, Freedom to Tinker will be taking stock of the DMCA. What do ten years’ experience tell us about this law in particular, and about technology law and policy more generally?

Today, I’ll focus on the law’s creation. It passed in the Senate by unanimous consent, and in the House by a voice vote. But as Jessica Litman, among others, has pointed out, there was a lively debate leading up to that seemingly consensus moment. As a starting point for discussion, I’ll briefly summarize chapters six through nine of her 2001 book, Digital Copyright: Protecting Intellectual Property on the Internet.

In the early days of the Clinton administration, as part of a broader effort to develop policy responses to what was then known as the “Information Superhighway,” a working group was convened under Patent Commissioner Bruce Lehman to suggest changes to copyright law and policy. This group produced a 267 page white paper in September 1995. It argued that additional protections were necessary because

Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems — both in the U.S. and internationally — are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII [National Information Infrastructure] environment.

In its section on Technological Protection (from pages 230-234), the white paper offers the meat of its recommendation for what became section 1201, the anti-circumvention rules:

Therefore, the Working Group recommends that the Copyright Act be amended to include a new Chapter 12, which would include a provision to prohibit the
importation, manufacture or distribution of any device, product or component incorporated into a device or product, or the provision of any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive rights under Section 106. The provision will not eliminate the risk that protection systems will be defeated, but it will reduce it.

In its prediction that anti-circumvention law would “reduce” “the risk that protection systems will be defeated,” the white paper offers a concise statement of the primary rationale for section 1201. That prediction hasn’t panned out: the anti-circumvention rules were enacted, but did not meaningfully reduce the risk of defeat faced by DRM systems. The defeat of such systems is, despite the DMCA, a routine eventuality following their introduction.

As Professor Litman tells the story, the Lehman white paper’s recommendations met with domestic resistance, which prompted Lehman to “press for an international diplomatic conference in Geneva hosted by the World Intellectual Property Organizaton (WIPO).” The upshot was a new treaty incorporating many of the white paper’s elements. It required participating nations to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors… [to] restrict acts… which are not authorized by the authors concerned or permitted by law.”

Did this treaty actually require something like the DMCA? Before the DMCA’s passage, copyright law already included secondary liability for those who knowingly “induce, cause, or materially contribute to” the infringing conduct of another (contributory infringement liability), or who have the right and ability to control the infringing actions of another party and receive a financial benefit from the infringement (vicarious infringement liability). Clear precedent, and subsequent decisions like MGM v. Grokster confirm that creators of infringement-enabling technologies can be held liable under copyright law, even without the DMCA. Nonetheless, the treaty’s language was clearly intended by its American framers and promoters to provide a rationale for the DMCA’s anti-circumvention provisions.

One impact of this maneuver was to allow the DMCA to be promoted under the rubric of harmonization—aside from its merits as policy, DMCA proponents could claim that it was necessary in order to meet American treaty obligations. The fact that Clinton administration negotiators had been instrumental in creating the relevant international obligations in the first place was lost in the noise. And overall, America’s interest in meeting its international obligations in the intellectual property arena is quite strong. The economics of patents, rather than of copyright, dominate: U.S. patent holders in pharmaceuticals, high technology and elsewhere find themselves fighting foreign infringement. U.S. legislators are therefore apt to assign very high priority to encouraging global compliance with the intellectual property treaty regime, regardless of concerns they may have about the details of a particular measure.

A second long term impact was to lead to DMCA-like laws around the world. Other countries often took a narrow reading of the treaty obligation and declined, based on it, to adopt anti-circumvention rules. But, perhaps emboldened by the success of the international-negotiations-first approach to copyright, the U.S. executive branch has used free trade negotiations as a wedge to force other countries to adopt DMCA-like statutes. Anti-circumvention requirements make surprising cameos in the United States’s bilateral free trade agreements with Jordan, Singapore, Chile, Australia and several other countries (more information here).

What lessons can we draw from this experience? First, it is a cautionary tale about international law. One often hears appeals to international law, in domestic political debates, that attach special normative value to the fact that a given provision is required by a treaty. These appeals may be generally justified, but the DMCA/WIPO experience at least argues that they deserve to be evaluated critically rather than taken at face value. Second, it serves as a powerful reminder that the unanimous votes leading to the passage of the DMCA mask an intricate series of negotiations and controversies.

Thirdly, and most importantly, the globalized birth of the DMCA provides a cautionary tale for the future. The currently proposed ACTA (Anti-Counterfeiting Trade Agreement), is a next-generation treaty that would cover online piracy, among other matters. Its exact contents are under wraps–the public outcry and litigation that have surrounded the measure stem mostly from a leaked memo outlining possible principles for inclusion in the treaty. Proposals include creating or strengthening penalties for those who promote infringement non-commercially, and enhanced ability to seize and destroy infringing media at international borders. Absent the text of a proposed agreement, it’s hard to respond in detail to ACTA. But if the genesis of the DMCA teaches us anything, it is that these international agreements deserve close scrutiny. When an agreement is created in opaque, closed-door negotiations, and then presented to the legislature as a fait accompli, it deserves close and skeptical scrutiny.