It’s easy to understand why the Digital Millennium Copyright Act caused an uproar when it was enacted twelve years ago. Nominally in the name of deterring piracy, Congress acted directly to regulate the creation, use, and distribution of the sorts of tools that potentially could be used to infringe copyright. As written, however, the statute seemed not to require proof that anyone’s copyright actually had been infringed in order to make out a DMCA violation. This was widely seen as a major shift in the balance of power between content owners on the one hand, and computer users and technology companies on the other: for the first time, content owners could bring suit to stop dissemination of a technology that could be put to both infringing and non-infringing uses, and the famous Sony doctrine no longer operated to shield technology providers from liability.
Dire predictions followed about how the DMCA would restrict fair use, distort competition, erode privacy, and jeopardize academic research. In the early years of the statute’s existence, these predictions appeared to be fully justified: the DMCA was invoked to attack a DVD player for the Linux operating system; to imprison a Russian programmer transiently present in the United States based on conduct that was lawful in Russia where it occurred, and to harass and threaten an American computer scientist in an attempt to deter him from publishing his academic research, among other things. Cases like these appeared to substantiate the view that the DMCA had fundamentally upset the historical balance between the rights of owners and the rights of users of copyrighted works.
I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.
Two recent developments have me wondering whether the trend towards limiting the DMCA’s overreach has reached a point where it’s now possible to declare victory of a sort. First, two Circuits—the Fifth and the Federal—are now on record as essentially requiring a plaintiff in a DMCA case to prove copyright infringement, and a third court, the Sixth, is not far behind. The Federal Circuit in StorageTek remarked that “[t]o the extent that [defendant’s] activities do not constitute copyright infringement or facilitate copyright infringement, [plaintiff] is foreclosed from maintaining an action under the DMCA” (421 F.3d at 1318), and more recently, the Fifth Circuit’s MGE decision reasoned that “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” (Manuscript op. 6). The concurring judge in Lexmark was ready to go this far, too, I think, even if the rest of the court couldn’t quite get there.
Second, each recent round of the Librarian of Congress’s triennial DMCA rulemaking incorporates stronger and stronger protections for users. The 2006 rulemaking allowed DVD access controls to be circumvented by some users; the 2009 rulemaking (which was delayed until just last month) dramatically expanded this to include virtually all noncommercial users, so long as not too much of the underlying copyrighted content is taken (which looks an awful lot like a fair use type of inquiry). The latest rulemaking also preserves or extends some other exemptions that were aimed at maintaining fair uses of protected works, such as the provision allowing users to bypass the functionality that prevents e-books from being read aloud. The rulemaking further reinforces the connection between the DMCA and copyright by expressly exempting a number of activities that don’t have anything to do with copyright infringement, such as jailbreaking your smartphone or doing security testing on video games. The Librarian’s latest set of DMCA exemptions have won some favorable early reviews.
The courts’ newfound sensitivity to the risk of DMCA overreach, and the Library of Congress’s efforts to keep the statute confined to the purposes that actually prompted its enactment, have me wondering whether the DMCA controversy is now behind us; whether the worst of the statute’s sharp edges haven’t now been effectively worn away.