A very important battle is being fought over the interpretation of a now infamous copyright statute that could possibly blur the line between government and the technology industry beyond the point of no return.
The anti-circumvention section of the Digital Millennium Copyright Act, 17 United States Code §1201(a)(1), prohibits the circumvention of “technological measure[s]” that “effectively control access” to copyrighted material. The statute also prohibits against, among other things, the manufacture of products “primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title”, where the product has “limited commercially significant purpose” and “is marketed [...] for use in circumventing a technological measure”. In short, the statute allows companies to criminalize the act of tinkering with the distribution methods of copyrighted works — making the mere act of playing around with the code on a DVD (or the selling of information on how to do so) a criminal offense.
In its application, 17 U.S.C. §1201 criminalizes not only garden variety copyright infringement, but it also has criminalizes the use of products in a way that could possibly facilitate copyright infringement, crafting a sort of “rights penumbra” around a copyrighted work that extends far beyond the traditional protections afforded copyright material. As noted above, §1201 does not merely apply to protecting copyrighted work itself — rather, it protects the copyrighted work’s access control measures from being circumvented. This “anti-circumvention” provision reflects a legislative desire to protect copyright owners from future copyright infringement — by criminalizing the methodology of copyright infringement itself, §1201 prevents the remotest possibility of copyright infringement. This protection comes at a price: it effectively sacrifices the interests of consumers and their right to their own property, making them pseudo-licensees of otherwise fairly purchased technological goods subject to the implied rights of copyright owners. Thus, in a way, the rights of consumers have been sacrificed to the corporate interest in copyright protection.
In my mind, the best way to understand the utter ridiculousness of §1201 is to apply it to the automobile industry. Were §1201 applied to vehicles, for example, Ford would not only have control over the copyrights typically involving their vehicles, but they would be given the right to restrict the use of their vehicles entirely. Ford could not only lock the hood of their car with a proprietary mechanism that only their authorized mechanics could open, but they could also use the criminal law to prosecute auto body shops, car modification shops, and even private parties that dared unlock Ford car hoods. Ultimately, Ford would gain an unqualified power to control the use and modification of their vehicles post-purchase, using the pitiful excuse of copyright law to criminalize private action — that is, unless the Library of Congress arbitrarily determined that Ford was being naughty and created an exemption for Ford car owners.
It almost goes without saying that §1201 is an extreme federal intrusion into commerce under the guise of copyright protection. The Constitution’s Copyright Clause states that Congress has the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Applying this provision, the Federal Government routinely grants copyrights and patents, which are in many cases the cornerstones of commercial innovation and competition. Unlike “normal” copyright law, however, §1201 has little to do with securing exclusive rights to writings and discoveries — rather, §1201 secures the “penumbral right” to control security measures surrounding these rights, in essence expanding copyright law not only to “Writings and Discoveries” but also to tangentially related access control measures. In a sense, §1201 is not about copyright law at all: it is a law, ostensibly created through the Commerce Clause, that grants companies the legal right to control post-purchase use of their goods.
A number of cases are being fought on the topic of §1201, though sadly few raise the issue of the validity of §1201 itself. Of particular note recently is the Playstation 3 hacking case, SCEA v. Hotz, which involves a lone hacker “jailbreaking” the Playstation 3 video game console, where “jailbreaking” allows users to run private software (and allegedly, illegally copied games) on their consoles. While the Defendant, George Hotz, contends that his hacking was for interoperability (that is, garden variety innocent use of unapproved programs that do not violate copyright), Sony Entertainment of America argues that Hotz’s hacking has enabled users worldwide to illegally copy video games, and thus contends that Hotz should be severely punished. What makes SCEA v. Hotz intriguing is that Hotz has a very legitimate defense to SCEA’s allegations: the modifications he provided may, in the future, allow other hackers to figure out how to violate copyright, but his hacks themselves did nothing to allow copyright violation. If SCEA wins their case, Hotz will essentially be punished for instigating a long series of events that may lead to copyright violation — and thus, §1201 will become even more extreme in its power.
The largely unrestricted grant of power given copyright holders via §1201 is incredibly worrisome because it jeopardizes the concepts of fair use and fair competition. In allowing copyright owners the right to create inviolate access control measures, Congress essentially demanded that purchasers of copyrighted work subject themselves to whatever arcane or unfair access control measures that the copyright owner places on his or her work, lest they be punished by extreme sanctions. This extreme grant of power not only nearly destroys the idea of the “fair use” of a product, but it allows companies to immunize their products from distributional competition through federal law. Moreover, given the incredibly tenuous Copyright Clause basis upon which §1201 relies, §1201 itself appears to be an overly broad extension of Congressional power, even if modern interpretations of the Commerce Clause allow Congress virtually unlimited power.
One can only hope that courts, such as the court in SCEA v. Hotz, identify the many issues of §1201 and limit it — if not invalidate it — accordingly. §1201 is an overly broad, unjustified, ill-applied, and patently unfair mess of legislation that, as some allege, indicates that Congress myopically focuses upon the interests of companies before it does the rights of Americans. Congress, by enacting §1201, has turned the government into an enforcement tool for copyright owners, which sets a very dangerous precedent: where copyright holders have absolute power over their creations, innovation and competition all but grind to a halt. The rights of individuals to use what they legally purchase — as well as the right of Americans to freely and fairly compete in the marketplace — should always trump the alleged needs of monopolistic copyright owners.
