DMCA Discord

Jon Lech Johansen was only 15 years old when he became the movie industry's greatest nightmare. The Norwegian teenager created a software program, DeCSS, that broke the copy protection on movie DVDs. He then distributed it for free on the Internet.

Now 22, Johansen has turned his sights on the music industry. And his latest effort seems likely to upset the titan of online music distribution, Apple Computer Inc.

Apple's iTunes is responsible for 88 percent of all legal song downloads in the U.S., and its iPod commands more than 60 percent of the digital music player market.

One reason Apple holds such a commanding market presence is that the company's proprietary digital-rights management software (DRM) only allows customers to play music purchased from iTunes on the iPod. Conversely, the iPod won't play songs that customers purchase from non-Apple online music services.

Johansen wants to change that. He's writing software that will allow iTunes' competitors to sell DRM-protected songs that will run on iPods. And his software also will allow songs purchased from iTunes to run on other digital music players. It will do this while keeping intact the songs' DRM protections.

In the process, Johansen is walking into the midst of a dispute over the interpretation of the Digital Millennium Copyright Act (DMCA), which Congress passed in 1998 to stop copyright infringement on the Internet. Because the DMCA offers protections that go beyond existing copyright law, a growing number of companies are using the statute in a way that Congress never intended: to keep competitors at bay.

"It is somewhat common to use [the DMCA] to stifle competition," says Jessica Litman, a professor at the University of Michigan Law School.

Fair-Use Controversy

Eight years after its enactment, the DMCA remains controversial and the scope of its protections unclear. Congress passed the statute to provide special protections to copyright owners against the fast, cheap and perfect copying that digital technology enabled.

"Prior to the Internet ?? 1/2 copying was done on a small scale by individuals," says Adam Kessel, an IP litigation associate with Boston's Wolf, Greenfield & Sacks. "Then it became essentially costless to copy and distribute works."

Copyright owners feared their works would be copied and shared for free over the Internet on a massive scale. Thus they began putting technological measures in place to prevent unauthorized reproduction of copyrighted works.

They then asked Congress to pass a law to defend these protections. Congress responded with the DMCA, which makes it illegal to circumvent technological protections or to distribute methods of circumvention.

At the time Congress passed the statute, its backers said the DMCA wouldn't interfere with the traditional fair-use rights copyright law grants. The notion of fair use makes it legal to copy a work (or a portion thereof) for such purposes as commentary, scholarship and parody. Indeed, the DMCA contains a provision stating, "Nothing in this section shall affect ?? 1/2 defenses to copyright infringement, including fair use, under this title."

Some courts, however, have narrowly construed this language, ruling it reaffirms fair use as a defense only to copyright infringement claims, not to alleged violations of the DMCA. As a result, behavior that is permissible under copyright law can violate the DMCA.

"If you circumvent a technological measure for the purpose of doing something that would otherwise be lawful, that is still a violation of the DMCA," says Seth Greenstein, a partner at Constantine Cannon.

Infringing Activity

Some courts construe the statute rather differently. For instance, the Federal Circuit, in its 2004 decision in Chamberlain Group Inc. v. Skylink Technologies Inc., held that the DMCA prohibits circumventing a technological protection only if such circumvention leads to infringement.

In that case, a leading maker of garage-door systems, the Chamberlain Group, used software to control its garage-door motors. The company used technological protections to restrict access to this control software. A rival, Skylink, made transmitters that worked with Chamberlain's system. In order for these transmitters to work, however, they had to circumvent the protections on Chamberlain's control software.

Chamberlain asserted this violated the DMCA, but the Federal Circuit disagreed. The court held the DMCA is violated only if the circumvention results in activity that "infringes or facilitates infringing a right protected by the Copyright Act ?? 1/2 ." The circumvention here didn't result in copyright infringement, so the Federal Circuit threw out the suit, thus limiting the scope of the DMCA.

"The court said Congress couldn't possibly have meant [to ban circumvention that is otherwise lawful], so the only way to read this statute is to conclude that Congress only intended to stop circumvention that facilitates infringement," says copyright attorney Jonathan Band.

Under this reading of the DMCA, Johansen's new software might be lawful. The application reportedly wraps around Apple's DRM and allows interoperability, but doesn't disturb the protections against unauthorized copying. If the software works this way, its use wouldn't facilitate infringement, so its distribution wouldn't violate the DMCA under the Federal Circuit's reasoning in Skylink.

Competitive Spirit

Despite the Skylink ruling, some companies are using the DMCA to prevent interoperability with competitors' products. "It is becoming increasingly common to use encryption handshakes to make approved devices work with only approved parts," Kessel says.

In addition, many of these companies are using the threat of litigation to keep competitors from trying to circumvent their technological protections.

"The threat of litigation is in many cases sufficient to prevent people from engaging in the behavior that the [copyright owner] doesn't like," Kessel says.

Critics claim the main purpose of Apple's DRM is to suppress competition by making songs downloaded from its iTunes marketplace compatible only with its iPod. The DRM does little to prevent copyright infringement, according to skeptics, because it permits users to burn iTunes songs to CDs, and then the songs can be copied from the CDs an infinite number of times.

"Apple is using DRM to protect its competitive position, not its songs," says Fred von Lohman, senior staff attorney at the Electronic Frontier Foundation, a non-profit digital rights advocacy group that is advising Johansen.

Apple hasn't indicated whether it will haul Johansen into court. But if he overcomes the legal hurdles, he could give a boost to competition in the markets for online music and digital audio players.

"Consumers would have more choice," von Lohman says. "That would be the foremost consequence."

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Steven Seidenberg

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