May 30, 2024

DMCA Week: A second orphan works problem?

The orphan works problem in copyright is real and serious. Several congressional hearings and a Copyright Office inquiry that drew hundreds of thoughtful comments—not to mention countless articles and blog posts—attest to that fact. This attention is heartening, and while orphan works legislation seems to have died this year, I’m optimistic that the next Congress will address the issue. As is often the case in Washington, however, such a victory might only mark the beginning of the next battle. The way I see it, the DMCA might create a second orphan works problem.

As you may know, an orphan work is a work under copyright the owner of which cannot be found. For example, say you come across a self-published political manifesto from 1967 in a Berkley archive or garage sale. You’d like to excerpt extensively from it in a book you’re writing about the Summer of Love. You try every possible avenue to locate the pamphlet’s author to get persmission, but you fail. That manifesto is an orphan work: it’s under copyright, but you can’t find the copyright’s owner.

The problem with orphan works is that if you nevertheless use the work without getting permission from the owner, you expose yourself to an infringement lawsuit if the owner later appears. Because statutory damages can run as high as $150,000 per infringing use, most orphan works go unused. This is a loss not only to the potential user, but also to society at large because it will be deprived of the promotion of science that would have resulted from a derivative work. Perhaps worse, an orphan work might be lost altogether because making an archival copy—say from fragile film to a more stable digital format—can be considered an infringement.

I have previously proposed a solution to the orphan works problem that would create an orphan works affirmative defense to infringement similar to fair use. Under this scheme, if you could show that you took every reasonable step to find a copyright owner and came up empty, you would not be liable for infringement. The Copyright Office made a similar recommendation, but instead of serving as a defense, showing a reasonable search for the copyright holder would merely limit the possible penalties for infringement. A bill based on that recommendation passed the Senate in September but never got a vote in the House before it adjourned earlier this month.

So what does this all have to do with the DMCA? My concern is this: Even if a strong orphan works bill were to pass Congress so that one would no longer have to worry about liability for copyright infringement, the work might still be unusable if in order to gain access to it one had to circumvent a technological measure in violation of the DMCA.

This is not a far-fetched idea. The Internet Archive has already successfully argued for a DMCA exemption for “Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive.” It needed this exemption to legally preserve legacy software stored on fragile floppy discs. Without that exemption, it would violate the DMCA even if it did not violate copyright.

You can see this problem presenting itself again. For example, the Prelinger Archive serves to collect and preserve ephemeral films of historical significance. According to its web site, “Included are films produced by and for many hundreds of important US corporations, nonprofit organizations, trade associations, community and interest groups, and educational institutions.” Today its collection is composed largely of videotapes and films, but there will come a time when one-of-a-kind movies will be on CSS-protected DVDs. Similarly, Amazon recently introduced its Digital Text Platform, which allows users to self-publish books that can be purchased and read on the Kindle. This means that there will soon be many books that will exist only as DRM-protected e-books. Therefore, even if we address the orphan works problem so that a user must no longer fear a surprise infringement suit from a previously impossible-to-find copyright holder, the user might still fear a DMCA suit.

The triennial exemption process provided in the DMCA will likely not provide sufficient relief because the Copyright Office is limited to exempting particular “class[es] of copyrighted works.” Just as it has refused to exempt “fair use works” because that is not a “sufficient” or “cognizable” class, the Copyright Office probably won’t recognize orphan works as a class that can be exempt. The sort of classes it will recognize will be very narrow, such as the one in the “obsolete video game or software” exemption. Not only is this exemption for one particular type of work, but it only applies to circumventions made for archival purposes.

Additionally, as Tim Lee points out to me, another way the DMCA might exacerbate the orphan works problem is by preventing the conversion of works into open and widely supported formats—the digital equivalent of what Prelinger is trying to do with film. Most of the proprietary DRMed formats we see around us today are likely to drop out of commercial use within the next couple of decades. As a result, people will gradually forget how to read those formats at all. By 2108, even if the DMCA has been reformed, no one may have any clue how to decrypt a PlaysForSure-encrypted audio file from 2002. Digital libraries in the near future need to be able to say “Boy, this format isn’t commercially supported any more, we’re going to convert it to MP3/MPEG/PDF so our patrons can continue enjoying it.” If they’re not allowed to do that, DMCA reform in the distant future may not matter.

I’m afraid I don’t have a ready solution short of abolishing or limiting the DMCA. One approach might be to include a limit to DMCA liability in the proposed orphan works legislation. However, I wouldn’t want to endanger that legislation’s political viability to address what is still a speculative problem. It won’t be long, however, before we find out if DMCA protections cause a second orphan works problem, metastasizing the harm visited on culture and society by that regrettable law.

DMCA Week: Where's My DVD Jukebox?

A difficult challenge in thinking about public policy is understanding which innovations have not happened as a result of bad government policies. For example, it’s generally believed that the Bell phone monopoly stifled innovation in the telecommunications sector during the 1950s and 1960s. But if we had been assessing things from the standpoint of the mid-1960s, it would have been hard to say exactly which innovations were missing. It wasn’t until after the Carterfone decision in 1968, and further liberalizations in the 1970s and 1980s, that we started to see just how many innovations could be unleashed by a competitive market: modems, answering machines, fax machines, competitive long distance service, etc.

We face a somewhat analogous situation with the Digital Millennium Copyright Act. Like a lot of other people, I’ve made the argument that the DMCA has stifled important high-tech innovations. And the DMCA has been on the books long enough that if we’re right, then we’re probably missing out on some important innovations. But it’s difficult to say exactly what they are; they’re what Bastiat called “what is not seen”, and what Don Rumsfeld called unknown unknowns.

But while we can’t say for certain which innovations have been precluded by the DMCA, we can find plenty of hints. Just last week, Apple CEO Steve Jobs commented that “the whole category [of ‘digital living room’ video devices] is still a hobby right now. I don’t think anybody has succeeded at it. And actually the experimentation has slowed down. A lot of the early companies that were trying things have faded away.”

What’s striking about this is how different the evolution of digital home video products is from the explosion of digital audio products a decade ago. The period between the introduction of the first MP3 players in 1998 and the release of the iPod in 2001 was a period of fevered innovation in both hardware and software. Numerous companies, some of them fairly small, introduced music players. By the time Apple entered the scene in 2001, it was entering an already-crowded market. In contrast, we’ve seen only a trickle of new digital video devices. The Video iPod, Slingbox, and YouTube were all introduced in 2005. These are all great products, but they’re also curiously limited. We haven’t seen general-purpose video devices that replace DVD players and cable boxes the way the iPod has largely replaced CD players and is gradually replacing the radio. Today’s home video experience would be completely unsurprising to someone from 10 years ago.

How is the video market different from the audio market was? There are obviously a lot of factors, but it seems to me that the DMCA is one of the most important ones. It has made it effectively illegal to rip video from their DVDs the way people ripped audio from their CDs a decade ago. And the ability to rip CDs into MP3 files created the foundation on which the digital music device market was built, eventually leading to the iPod.

Consider two products that have not been widely adopted, due largely to DMCA-related legal problems. One is the XBMC Media Center, which used to be known as the XBox Media Center before Microsoft’s lawyers came knocking. Two years ago, I pointed out that the XBMC had significantly more functionality than a lot of “legitimate” media players. I think that’s still true today. One of the most important features was the ability to rip DVDs and store them on your hard drive for later playback. Unfortunately, the DMCA makes it essentially impossible for mainstream technology companies to duplicate this functionality.

XMBC, or other software like it, could have been the WinAmp of video, allowing law-abiding people to build libraries of legitimate video in an open format. That, in turn, would have created a market for digital video hardware to store, play, and manipulate these files, just as WinAmp and other MP3 software made the MP3 player market possible. But because the DMCA makes DVD-ripping effectively illegal, there is no legal way for people to get their existing DVD libraries into an open format, which drastically reduces the demand for open video devices.

Or consider Kaleidescape, an innovative, and very expensive, DVD-jukebox device that was introduced almost five years ago and has faced legal trouble almost from its inception. As Ed put it back in 2004:

DVD-CCA [the cartel that controls the DVD standard] is trying to maintain its control over all technology related to DVDs. In the good old days, copyright law gave copyright owners the right to sue infringers but gave no right to stop noninfringing uses just because the copyright owner didn’t like them. These days, copyright interests seem to want broad control over technology design.

Kaleidescape ultimately won its lawsuit, but the decision turned on fairly narrow contractual grounds that don’t provide much room for others to enter the market. The bottom line is that it’s still effectively illegal to sell a product that will rip DVDs to an open video format.

It’s not like Hollywood hasn’t been trying to produce a viable video platform. Way back in 2003, Hollywood had two proprietary download services called MovieLink and CinemaNow. Unfortunately, they crashed and burned. This part of the story is actually strikingly similar to the music industry, which had a proprietary download services of its own that did just as poorly.

What’s different is that video entrepreneurs don’t have the freedom that audio entrepreneurs did to opt out of the incumbents’ preferred platforms and build their own. It’s worth remembering that the recording industry tried to sue the first MP3 players out of existence. What we’re seeing in the video market is what the digital audio marketplace would have looked like if the recording industry had won its lawsuit against the first MP3 players. The recording industry lost that lawsuit, and entrepreneurs went on to build products that were much better than the “official” ones being pushed by the labels. Unfortunately, entrepreneurs in the digital video market don’t have that same option.

If the DMCA were not on the books, it seems likely that products like Kaleidescape and the XBMC would be growing rapidly in popularity. Many of us would have set-top boxes with 500 GB hard drives capable of ripping dozens of DVDs to an open, standard format for subsequent streaming to any display in the user’s house. The existence of those boxes would spur the creation of a wider market for other digital video products designed to interoperate with the emerging open video standard.

Unfortunately, that’s not how things have gone. Hollywood has managed to do what the recording industry was unable to do: to ban users from converting their legally-purchased content to open formats. As a result, the market for open digital video devices is a pale shadow of what it would be in a competitive market. We’re stuck with clunky, proprietary, and non-interoperable products like Apple TV that require users to re-purchase their existing movie collections in order to watch them on the new device. I think everyone would agree that it was a good thing that the courts didn’t let the recording industry shut down the MP3 player market a decade ago. So why do we tolerate a law that effectively shuts down the analogous market for DVD jukeboxes?

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.