Is the DMCA Still Relevant?

That’s the question I’ve been asking myself (and, occasionally, others) for most of the last year. (As some of you know, I’ve spent quite a bit of that time working on a new paper about the DMCA, and I’m not jaded enough yet not to feel a twinge of regret at the prospect that the point I’ve written about may be on its way to becoming moot). The DMCA (in relevant part, 17 U.S.C. § 1201) protects digital rights management (“DRM”) schemes against circumvention, and forbids the creation or distribution of circumvention tools. Do those protections still amount to much in the real world? Consider the state of play in the courts and in the market:

  • Reported decisions are down. The years 2000–2005 are beginning to look like the golden age of DMCA litigation. Big cases were litigated and important decisions rendered — Reimerdes and Corley, Chamberlain, Lexmark. Since then, what have we learned? By my reading, most of the more recent DMCA decisions are trial court opinions that mostly involve comparatively narrow, technical issues — the principal exception being last year’s Healthcare Advocates decision, which rejected a dubious attempt to portray a malfunction in an online archive as an incident of “circumvention.” We haven’t had an appellate court opinion on Section 1201 since 2005, and it’s difficult to spot really meaty issues in the current crop of district court decisions.
  • Public opposition to DRM has reached influential heights. The crude varieties of DRM that have dominated the marketplace so far have tended to alienate consumers, and word of their alienation has spread. Steve Jobs has suggested dropping DRM, and even Bill Gates has gone squishy. Online music sellers are complaining that DRM is bad for consumers and hurts their business, and even some recording industry executives may be coming around. It hasn’t helped the recording industry, either, that poorly engineered DRM systems have actually infected and damaged innocent purchasers’ computers.
  • Content providers are abandoning DRM. We are beginning to see more stories about former DRM advocates changing their stripes. Large audiobook publishers recently walked away from DRM, joining some of the major record labels. And heavily DRM-encumbered services, like Wal-Mart’s unlamented movie download site, have shut down.

So is the marketplace passing the law by? There’s precedent for this in copyright, most notably the 1992 Audio Home Recording Act, which mandated copy protections for digital audio tape (DAT) mini-cassettes. The impact of the AHRA’s technology mandate was, predictably, to kill the DAT market. DAT became a niche technology rather than, as planned, the successor to LPs and analog cassette tapes. The AHRA is still on the books, but has little real work to do any more, since the evolution of the market has taken a path that renders the statute mostly irrelevant. It’s surely too soon to declare the DMCA to be a dead letter, but developments in the market seem to suggest, at a minimum, a more circumscribed future role for the statute than in its early heyday.

4 Responses to “Is the DMCA Still Relevant?”

  1. Good observation. Just two things:

    1. A ton of content has already been shipped and will remain locked in DRM for future generations who will need to break the DMCA to use it (no matter how obscure the law becomes).
    2. Section 512 remains as potent as ever.

  2. Still very relevant for commercial video. Besides the obvious consumer (BluRay) AppleTV only works with very-much-protected HDCP-compliant TVs, which is why you can’t access AppleTV functionality from an apple laptop.

  3. Really good points, Kevin and Luis. Any diminution in the prevalence of DRM going forward doesn’t undo the fact that there is an awful lot of locked-down content already in the pipeline. Although, if I have my way, the courts will look differently at the § 1201 liability issues going forward even where circumvention of that “old” content’s DRM occurs.

    No doubt at all that there’s plenty to the DMCA other than § 1201, some of which is clearly going to remain highly relevant no matter what becomes of DRM. (Even § 1202 is showing signs of life; the very interesting IQ Group case from a couple of years back rejected an attempt to recast a claim for trademark infringement as a “copyright management information” violation.) The DMCA included lots of things besides the anticircumvention provisions — § 512, to be sure, but also new protections under § 117 for computer maintenance and repair, and the sui generis regime for boat hulls. It was a complicated (probably needlessly overcomplicated) statute. But it was the anticircumvention provisions that have drawn the most commentary — this is the part of the statute that everybody thought was going to kill fair use and lead to a technological lockdown. If changes in the marketplace are making DRM less attractive, they’re making those scenarios less plausible, notwithstanding the ongoing relevance of other portions of the statute.

    Luis, I take your point about digital video. (Berkman alum Derek Slater wrote me a terrific e-mail making basically the same point.) That has been a special case since even before the DMCA came along. We’ve never really known a time when commercial digital video content wasn’t at least nominally locked up — from CSS to AACS (both accompanied by region coding) for discs, to HDCP for HDTV. There’s surely no sign of weakening DRM in that context, if only because DRM has always been built into those technologies from the ground up (rather than bolted on as an ill-fitting afterthought in the world of audio CDs, for example).

  4. […] Donovan writes in to point to law professor Tim Armstrong wondering if the DMCA is still relevant at all, now that so many content providers are dumping DRM. He also notes that we’re seeing fewer […]