Enforcing the DMCA Internationally

[Lawrence E. Rosen]

I'm forwarding this article to license-discuss because of the important
policy implications of the DMCA for software development.  /Larry Rosen

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Enforcing the Digital Millennium Copyright Act Internationally: Why
Congress 
Shouldn't Lock in the Current DMCA By Approving the Current Version of
the U.S.-Singapore Free Trade Agreement

By BRANDY A. KARL
Monday, May. 19, 2003 writ.news.findlaw.com/student/20030519_karl.html

On May 6, President Bush and Prime Minister Goh of Singapore signed the
U.S.-Singapore Free Trade Agreement (the "FTA"). President Bush has
termed the FTA "the first of its kind" - apparently meaning that it is
the first free trade agreement between the United States and an Asian
nation.

But the FTA is also the first of its kind in another sense, as well. It
is the first international trade agreement to demand that the
signatories implement anti-circumvention provisions similar to those of
the hotly controversial Digital Millennium Copyright Act ("DMCA").

By pursuing anti-circumvention measures in a bilateral trade agreement,
the Bush Administration had taken a new step in the progression by which
the ownership and use of intellectual property have been increasingly
politicized in recent years.

This step will have international, as well as domestic consequences: If
Congress approves the FTA, it will not able to alter the DMCA without
violating its obligations to Singapore.

The Digital Millennium Copyright Act

On October 28, 1998, the DMCA was signed into law, as an amendment to
the Copyright Act. As a signatory to the World Intellectual Property
Copyright Treaty ("WCT"), the U.S. was obligated to provide legal
protection for authors "against the circumvention of effective
technological measures . . . that restrict acts . . . which are not
authorized by the authors concerned or permitted by law." However, the
DMCA went much further than what the WCT required. In part for this
reason, the DMCA became intensely controversial, as columns for this
site by Anupam Chander and Laura Hodes have chronicled.

The DMCA prohibits the circumvention of technological measures that
effectively control access to a copyrighted work. For instance, it
prohibits the use of software whose only purpose is to thwart "lockware"
or encryption meant to protect copyrighted material - such as DVDs,
eBooks, or music.

The DMCA additionally prohibits the manufacture of, and trafficking in,
such software - and other types of technology that are "primarily
designed or produced for the purpose of circumventing a technological
measure" controlling access to a copyrighted work.

The DMCA does contain some provisions exempting libraries and law
enforcement from liability. It also offers limited protection to certain
reverse engineering and encryption research activities. In addition, it
explicitly states that its anti-circumvention provisions shall not
affect substantive copyright rights and defenses to infringement,
including fair use. Nevertheless, it sweeps far more broadly than did
the prior copyright law that preceded it.

For one thing, despite its statement that fair use is preserved, it
appears to prohibit circumventing access control measures even on public
domain works. At least one decision construing the DMCA prohibits access
control circumvention with the intent of "fair use," as opposed to
copyright infringement.

Thus, while an English professor might photocopy a few pages of a book
for her class without risking liability, a music professor will risk
liability under the DMCA if she cracks the protections of an MP3 in
order to sample a few seconds of it for discussion in her music class.
Both are fair uses, but under the DMCA, the latter is apparently
illegal.

Two bills pending in the House would resolve any ambiguity, making clear
that circumvention of digital locks is legal for fair use or other
noninfringing uses.

The Mistake of Fast-Tracking the FTA

The FTA's language regarding copyright circumvention technology goes no
further than the DMCA's. However, its status as an international treaty
adds a new facet to the debate, especially as the FTA does not contain
any of the DMCA's exceptions to the scope of digital protections for
copyrighted works.

Unfortunately, in Congress, at least, the debate on the FTA is likely to
be limited. The FTA was negotiated by the President under the Trade
Promotion Authority (TPA) - formerly called "Fast Track" authority -
delegated to him by Congress. Accordingly, Congress may only consider
the FTA as an entire package - voting up or down on it as is, rather
than considering amendments.

In addition, expedited TPA procedures expressly limit floor debate, and
require Congress to make its "up or down" vote on a rapid timetable -
normally 90 days.

Fast-tracking this important intellectual property issue was a serious
error. Trade Promotion Authority is already a politically questionable
delegation of Congressional powers to the President. That delegation
becomes even more questionable when the issues are as weighty and
political as these are - political footballs like this should be
subjected to Congressional back-and-forth, and not simply dropkicked by
the President.

Arguably, it might be appropriate to fast-track some trade agreements,
but not this one - which would set in stone a highly controversial
domestic law that affects both the First Amendment and fair use. The
progress of technology and information, as well as free speech, is at
stake, making the inability to amend the FTA particularly troublesome.

The FTA's DMCA-like provisions deserve to be subjected to democratic
debate. Instead, closed-door trade negotiations have resulted in a
package - one bereft of the Congressional balance struck in the DMCA
between private rights and the public domain - submitted to Congress for
a mere "thumbs up" or "thumbs down." That's railroading by the copyright
industries, not democracy.

A Second Separation of Powers Problem Dogs the FTA

If the separation of powers problem with fast-tracking the FTA -
allowing the Executive to usurp Congress's prerogative of amendment -
wasn't sufficient, there's another separation of powers issue. This
time, the problem stems from separation of powers between the Executive
and the Judiciary.

Unless and until the FTA is enacted, courts will be able to narrow the
DMCA's scope to respect free speech and the public domain. After the
FTA, however, that will be impossible: it is not the judiciary's role to
decide whether the United States should honor its treaties.

If Congress promises, in the FTA, to stick to a harsh version of the
DMCA, the judiciary cannot renege on that promise. Again, this dynamic
would be less troubling if we were dealing with straightforward
legislation relating to ordinary products and goods - not legislation
that implicates serious constitutional issues because it relates to
intellectual property.

If the FTA is ratified, the judiciary will be out of options when it
comes to ameliorating the effect of the fair-use-stifling DMCA. Congress
will then have only one option: vote to override the treaty, a complex
and wide-ranging trade agreement that regulates commerce between two
nations.

The U.S.'s need for Singapore's cooperation in going after Al Qaeda only
makes the issue that much more sensitive, and makes an overriding vote
all the more unlikely. But absent such a vote, changes to the DMCA - for
instance, to allow certain fair use exemptions - would likely violate
the FTA, and thus will not be made by a conscientious Congress or
judiciary.

In sum, the passage of the FTA would tie both the judiciary's and
Congress's hands to protect consumers' long-established right to fair
use. Unless Congress forces the President to go back to the drawing
board and renegotiate the FTA to recognize fair use rights, both the FTA
and the DMCA are likely to be set in stone for a long time to come - to
the advantage of the copyright industries, and the detriment of free
speech and fair use.

Brandy Karl is a second-year student at Boston University School of Law.

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