EFF: 7 Years Under the DMCA Report

The EFF have released version 4 of Unintended Consequences: 7 Years Under the DMCA.

"1. Executive Summary

Since they were enacted in 1998, the “anticircumvention”
provisions of the Digital Millennium
Copyright Act (“DMCA”), codified in section 1201
of the Copyright Act, have not been used as Congress
envisioned. Congress meant to stop copyright
infringers from defeating anti-piracy protections
added to copyrighted works and to ban the “black
box” devices intended for that purpose.1
In practice, the anti-circumvention provisions have
been used to stifle a wide array of legitimate
activities, rather than to stop copyright infringement.
As a result, the DMCA has developed into a serious
threat to several important public policy priorities:

The DMCA Chills Free Expression and
Scientific Research.

Experience with section 1201 demonstrates
that it is being used to stifle free speech and
scientific research. The lawsuit against 2600
magazine, threats against Princeton
Professor Edward Felten’s team of
researchers, and prosecution of Russian
programmer Dmitry Sklyarov have chilled
the legitimate activities of journalists,
publishers, scientists, students, programmers,
and members of the public.

The DMCA Jeopardizes Fair Use.

By banning all acts of circumvention, and all
technologies and tools that can be used for
circumvention, the DMCA grants to
copyright owners the power to unilaterally
eliminate the public’s fair use rights.
Already, the movie industry’s use of
encryption on DVDs has curtailed
consumers’ ability to make legitimate,
personal-use copies of movies they have
purchased.

The DMCA Impedes Competition and
Innovation.

Rather than focusing on pirates, many
copyright owners have wielded the DMCA
to hinder their legitimate competitors. For
example, the DMCA has been used to block
aftermarket competition in laser printer
toner cartridges, garage door openers, and
computer maintenance services. Similarly,
Apple invoked the DMCA to chill
RealNetworks’ efforts to sell music
downloads to iPod owners.

The DMCA Interferes with Computer
Intrusion Laws.

Further, the DMCA has been misused as a
general-purpose prohibition on computer
network access which, unlike most computer
intrusion statutes, lacks any financial harm
threshold. As a result, a disgruntled
employer has used the DMCA against a
former contractor for simply connecting to
the company’s computer system through a
VPN."

Highly recommended. All the important overreaching DMCA cases are covered with neat summaries.