Content-Type: text/html Circumventing Copyright with Controlling Technology Matt Jackson Assistant Professor College of Communications Penn State University 219 Carnegie Building University Park, PA 16802 (814) 863-6419 [log in to unmask] March 30, 2000 Submitted to the Law Division of the Association for Education in Journalism And Mass Communication Circumventing copyright with controlling technology Abstract The Digital Millennium Copyright Act added a new chapter to Copyright Act that protects the anti-circumvention technology used by copyright owners to restrict access to their content. In Universal City Studios v. Reimerdes, the first case involving these new provisions, the district court held that traditional defenses to copyright infringement did not apply to some violations of the anti-circumvention provisions. The DMCA and the Reimerdes case are evidence of a paradigm shift in copyright from a legal concept to a technological concept. One outcome of this shift is that copyright owners can now use technology to increase the scope of their rights beyond the statutory and constitutional limits of copyright law. Circumventing Copyright with Controlling Technology "In every context that it can, the entertainment industry is trying to force the Internet into its own business model-the perfect control of content. From music (fighting MP3) and film (fighting the portability of DVD), to television, the industry is resisting the Net's original design. It was about the free flow of content; Hollywood wants perfect control instead."1 The Internet provides a delightful conundrum for communication and legal scholars. How does one limit content distribution on a multipoint-to-mulitpoint network whose sole purpose is the distribution of content? Answers range from the rule of law to the rule of technology to no rule at all.2 Copyright owners are not waiting for the academic debate to subside. They have adopted a two-pronged strategy: tougher laws and better technology. The No Electronic Theft Act of 1997 (NET)3 and the Digital Millennium Copyright Act of 1998 (DMCA)4 are indeed tougher laws. At the same time, the copyright industries, particularly the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), are working to develop anti-circumvention technology to prevent unauthorized access to their content.5 Major copyright owners have also become extremely aggressive in enforcing their new legal rights granted by the DMCA. Examples of this include recent lawsuits against MP3.com, Napster, iCraveTV.com, and DeCSS.6 Some commentators argue that the expanded legal protections granted by the DMCA are giving copyright owners power that goes beyond the purpose of the copyright statute.7 One of the key components of the DMCA is the anti-circumvention provisions codified in chapter twelve of the Copyright Act. These provisions are crucial to copyright owners' two-pronged strategy to control content on the Internet. The new provisions essentially make it illegal to circumvent any of the technological measures copyright owners use to control access to their content. The law contains exceptions for when users circumvent these measures for permissible purposes, such as fair use, reverse engineering, and encryption research. However, the new law effectively outlaws the development of the circumvention tools that users would need for these permissible purposes. Without access to circumvention technologies, users will find it difficult to gain access to content even for a legitimate, noninfringing purpose. The DMCA thus signals a paradigm shift from copyright as a legal concept to copyright as a technological concept. This shift has enormous implications for society. Three likely outcomes of this shift include: (1) technological measures are effective regardless of the location, partially "solving" many of the problems of international copyright by imposing technological harmonization where legal harmonization does not exist; (2) technological measures allow for harsher penalties, effectively criminalizing much of copyright law-since courts are more willing to enforce criminal penalties where the issue involves tampering with technology; and (3) technological measures give copyright owners extralegal controls over their work, increasing the scope of protection significantly beyond the bounds of the statute. This paper provides an example of this third outcome by analyzing Universal City Studios v. Reimerdes, one of the first cases addressing the new anti-circumvention measures of the DMCA.8 The paper begins with a discussion of the constitutional and statutory purpose of copyright law. Part Two briefly highlights the mechanisms by which the statute maintains the balance between monopoly privilege and public access to content. Part Three discusses the anti-circumvention provisions of the DMCA, and Part Four analyzes the Reimerdes case, which is the first decision that has been issued relating to the anti-circumvention provisions. The Conclusion then places the Reimerdes case and the DMCA within the larger context of recent trends in copyright law. I. The purpose of copyright One of the key principles of copyright is that the law protects only expression, not the ideas being expressed. In the United States, courts have long held that ideas are ineligible for copyright protection,9 and the Copyright Act of 1976 specifically precludes copyright protection for ideas, procedures, and discoveries.10 The reason for this distinction between ideas and their expression goes to the heart of the purpose of the law. The purpose of copyright is 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 Dicoveries."11 According to this view, society as a whole benefits from an author's creative effort. Therefore, the author should be given control over her work only to the extent that such control provides the necessary incentive for the author to create the work in the first place. This justification assumes there will be more creation and dissemination of expression (and therefore more benefit to the public) if the author can recoup the investment in her work. The Supreme Court has stated: The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.12 This economic model includes assumptions about information which make the granting of property rights necessary. The two most important characteristics of information are nonexclusivity and nonexcludibility. These characteristics are most commonly associated with public goods.13 Nonexclusivity means that one person's use of the good does not detract from another's use of it. Nonexcludibility means that it is extremely difficult to prevent someone from using the good. Typical examples of public goods are a lighthouse and national defense. When one person uses a lighthouse for navigation, he does not "use it up." Anyone else can still use the same light for navigation. Likewise, everyone within a nation is protected by national defense. Nonexclusivity is generally considered to be a positive attribute of public goods. Nonexcludibility is another matter altogether. If someone were to set up a "private" lighthouse and attempt to charge users, it would be almost impossible to prevent its use by someone who refuses to pay. Nonpayers are known as "freeriders." Most economists agree that nonexcludibility makes it difficult for a private investor to recoup her investment in a public good since she can't charge all users. Because of nonexcludibility, public goods will tend to be underproduced in the private marketplace. To achieve the optimal production of a public good requires some form of governmental or public support.14 Copyright attempts to deal with the problem of nonexcludibility by essentially outlawing freeriding. Copyright law grants the author a property right in the work both to discourage freeriders and to give the author legal remedies against freeriders who infringe on the author's rights. Intellectual property is particularly susceptible to freeriders since a disproportionate share of the expense involved in creating intellectual property goes toward the creation of the first copy. These first-copy costs can only be recouped if the creator can control the distribution of successive copies.15 When determining the proper level of incentives necessary to encourage the creation of new copyrighted works, it is important to remember that from the firm's perspective, merely covering the first-copy costs in not adequate. Risk is an important factor because the demand for any given work is unknown. So the revenue must cover both the cost of the work and the risk of failure. In essence, uncertainty generates an additional disincentive to create new works.16 The conundrum for copyright is how to create the appropriate level of incentives. If too much protection is given, access to the work is unduly restricted. If too little protection is given, the optimum amount of works might not be created. As Landes and Posner note: "For copyright law to promote economic efficiency, its principal legal doctrines must, at least approximately, maximize the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection."17 Maintaining this delicate balance has become increasingly difficult as new means of producing and distributing information have developed. Digital communication in general, and the Internet in particular, have dramatically reduced production and distribution costs. Unlike previous reproduction technologies that were either capital-intensive (a printing press) or labor-intensive (a copy machine), the Internet allows for cheap and effortless reproduction and distribution. Copyright holders have argued vigorously that increased protection is necessary-that the increased ease of infringement outweighs their own cost savings through use of this new technology.18 The copyright industries are now the largest exporters in the United States, giving them significant political power in an era when the U.S. trade deficit is measured in billions of dollars each month.19 Trade organizations representing software developers, motion picture studios and the music recording industry wield enormous influence in the halls of Congress. In February of this year, more than thirty different trade groups, including the MPAA, RIAA, NAA, NCAA, SAG, NAB, and major professional sports leagues formed the Copyright Assembly "to preserve, protect, and defend the sanctity and concept of copyright from all intruders."20 Arrayed against these copyright interests are entrepreneurs seeking to exploit new technologies to deliver content to consumers. Recent notable examples of this trend include MP3.com and Napster, two companies that facilitate the sharing and use of MP3 audio files. As Jessica Litman has noted, copyright revision is a process of compromise among these special interests with the government taking on the role of mediator rather than the role of the public's advocate.21 This legislative process puts the statutory purpose and constitutional limits of copyright at risk since most of the participants are interested in private gain rather than societal benefits. II. Copyright and the Constitution The courts normally have the authority and duty to ensure that the copyright law does not exceed the restraints imposed on it by the Constitution. Indeed the statute contains numerous provisions restricting the ability of copyright holders to enforce their monopoly, both to serve the constitutional mandate of "promoting progress in science and the useful arts," and to ensure the statute does not trample on First Amendment protections for free speech. Even with the limited duration of the copyright term and the idea/expression dichotomy, policymakers have acknowledged that the rights granted to the copyright holder are extremely broad and potentially counterproductive. Thus, the copyright law includes a number of exceptions to the copyright holder's monopoly. Many of these exceptions have been carved out for powerful special interest groups. For example, there are numerous provisions that benefit educators and librarians throughout the statute. In addition to these specific exceptions, there are some broad limits on the copyright holder's monopoly. The most important limitation is that of fair use. Fair use furthers the goals of copyright by limiting the monopoly power of the copyright owner. As the Supreme Court noted in Campbell v. Acuff-Rose Music: "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts...'"22 The statute offers a nonexclusive list of potential fair uses of copyrighted works, including: "criticism, comment, news reporting, teaching...scholarship, or research..."23 All of these uses benefit society by propagating the ideas expressed in the copyrighted work. In addition, fair use plays an important role in protecting free speech by allowing individuals to quote directly from the works they are debating, thus supporting an "uninhibited, robust, and wide-open" debate. Fair use also allows citizens to regain control over their culture in an era when the copyright industries have commodified much of the cultural landscape.24 Thus, fair use operates as a "safety valve" to prevent the copyright statute from trampling First Amendment rights.25 Today copyright law is being supplanted with technological measures developed by the copyright industries to provide extralegal protection for their works. Thus copyright owners can use technological measures not only to prevent infringement, but also to avoid the limitations that the copyright statute places on their monopoly privilege. Congress extended protection to these extralegal measures for the first time when it passed the Audio Home Recording Act of 1992 (AHRA).26 The AHRA required that all consumer-grade digital audio recording devices come equipped with the Serial Copy Management System (SCMS) or some other system that prevents consumers from making serial digital copies.27 In addition, the law banned the distribution of devices that were designed to circumvent the SCMS. The AHRA created, for the first time in copyright law, a cause of action separate from copyright infringement. However, the AHRA was narrowly tailored to prevent serial digital audio copying only. The Digital Millennium Copyright Act of 1998 (DMCA) extended legal protection to the technological measures that copyright owners use to safeguard their monopoly privilege.28 In doing so, Congress went significantly beyond the narrow provisions in the AHRA. The DMCA protects technological measures that control all access to a work, rather than measures that prevent only serial copying. Congress enacted the DMCA provisions without connecting them to the limitations on monopoly contained in the Copyright Act. In one of the first cases to be decided after passage of the DMCA, a district court has found that copyright owners may enforce their legal protection of technological measures regardless of whether it expands their monopoly protection beyond the confines of the Copyright Act. III. The Anti-Circumvention Provisions of the DMCA The DMCA added a new chapter to Copyright Act that focuses on protecting anti-circumvention technology rather than adjusting the bundle of rights granted to a copyright holder. The new Chapter Twelve contains three major provisions designed to protect the technology that copyright owners use to restrict the use of their content. Section 1201(a)(1) states: "No person shall circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act]." This subsection will not take effect until November of 2000, after a rulemaking by the Librarian of Congress determines whether any users of any specific "class of works" will be adversely affected in their ability to make noninfringing uses of that particular class of works. For example, if the rulemaking determines that librarians will be unable to make legitimate noninfringing uses of databases, then they may be permitted to circumvent the technological measures used to restrict access to the work. Needless to say, this will result in an incredibly complex rulemaking-one the law requires the Librarian of Congress to repeat every three years. In the meantime the other two provisions of Chapter 12 have already taken effect. Section 1201(a)(2) prevents manufacturing, importing, or otherwise trafficking in "any technology, product, service, device, component, or part thereof" that (A) is primarily designed to circumvent a technological protection measure, (B) "has only limited commercially significant purpose or use other than to circumvent a technological measure," or (C) is marketed with knowledge that it will be used to circumvent a technological measure.29 This section prohibits trafficking in circumvention technology whereas Section (a)(1) prohibits the use of circumvention technology. Section 1201 (b)(1) is almost identical to Section 1201(a)(2). This section prohibits trafficking in any devise that circumvents the protection offered by a technological measure (instead of protecting the technological measure itself). So you cannot manufacture, import, or traffic in a technology that provides access to a copyrighted work even if you don't "break" the copy protection technology embedded in the work. Remedies for violating section 1201 include actual damages or statutory damages of $200 to $2500 per violation, injunctions, impoundment, attorney's fees, and court costs.30 Individuals who violate section 1201 willfully and for commercial advantage or private gain are subject to criminal sanctions of not more than $500,000 and/or five years imprisonment for a first offense (double for all subsequent offences).31 IV. The Reimerdes case On January 20, 2000, in one of the first legal tests of these new provisions, a district court granted a preliminary injunction against defendants who placed decryption software on their websites.32 In Universal City Studios, Inc. v. Reimerdes, the defendants operated web sites that distributed DeCSS, a software utility that circumvents CSS (Content Scramble System). CSS is an encryption program used to prevent the unauthorized use of DVDs. CSS allows the playback, but not the copying, of DVDs on authorized playback machines such as DVD players and DVD hard drives used with certain computer operating systems. While the primary purpose of CSS is to prevent the unauthorized copying of DVDs, it also prevents the playback of DVDs on unauthorized hardware. Individuals in Europe created DeCSS to break the CSS copy protection system. DeCSS soon began appearing on numerous web sites in the United States and abroad. The Motion Picture Association of America was successful in getting most web sites to remove DeCSS.33 Eight motion picture companies then sued the defendants for violating Section 1201(a)(2) of the Copyright Act and requested a preliminary injunction. Judge Lewis Kaplan of the Southern District of New York granted the preliminary injunction on January 20, 2000. In addition, the DVD Copy Control Association sued more than seventy web sites for misappropriation of trade secrets for either posting the DeCSS software or providing links to web sites that contained the software.34 A preliminary injunction was issued in that case on January 20, 2000, prohibiting the defendants from disclosing the plaintiff's trade secrets. Rejection of statutory defenses In the Reimerdes case, the plaintiffs had to demonstrate irreparable harm to obtain a preliminary injunction against the defendants. In determining whether the plaintiffs would suffer irreparable injury, the court took into account the harm from copyright infringement, even though no infringement was alleged in this case: "In this case, plaintiffs do not allege that defendants have infringed their copyrights, but rather that defendants offer technology that circumvents their copyright protection system and thus facilitates infringement. For the purposes of the irreparable injury inquiry, this is a distinction without a difference."35 Under section 1201(a)(2)(B), a defendant is only liable for trafficking in circumvention technology if that technology "has only limited commercial significant purpose or use other than to circumvent a technological measure that effectively controls access to a work..."36 The defendants argued that the purpose of the DeCSS software was to allow users to play DVDs on computers that use the Linux (rather than Windows) operating system. The court rejected this argument for two reasons. First, the defendants submitted no evidence to support their contention that this was the primary purpose of the software, and second, even if this was the sole purpose, "the playing without a licensed CSS 'player key' would 'circumvent a technological measure' that effectively controls access to a copyrighted work and violate the statute in any case."37 In other words the law gives the copyright owner control over which hardware may be used to gain access to the copyrighted material. Imagine a Sony compact disk that legally could be played only on a Sony CD player. Thus, Microsoft could pressure the DVD Copy Control Association, which licenses the CSS software, to not license its software to competing operating systems. Users who own lawful copies of DVDs containing the CSS encryption system would be prohibited from playing their DVDs on unauthorized systems, even though playing the DVD on an unauthorized system would not be considered copyright infringement. Section 1201 provides limited exceptions to the general rule that one cannot distribute circumvention technologies. The defendants argued that their use was permissible under the reverse engineering exception which allows circumvention of the sole purpose of achieving interoperability between computer programs.38 The court rejected this argument, holding that section 1201(f), permits reverse engineering of copyrighted computer programs, not reverse engineering of systems that control access to other copyright works.39 In other words, it is permissible to circumvent the protection system of an underlying computer program to achieve interoperability with that underlying program, but it is not permissible to reverse engineer the protection system to achieve interoperability with the protection system. The defendants also claimed that their work was permissible under exemptions for encryption research and security testing, but the court noted that they provided no evidence to support either claim. The defendants also tried to avail themselves of exceptions to copyright infringement contained in the statute. The defendants argued their activity was protected by fair use, and one defendant also argued that he was exempt from liability as a service provider. The court made clear in no uncertain terms that these limitations on copyright liability did not apply since the defendants were not being sued for copyright infringement. The court held that the defendants could not raise a fair use defense since they were not sued for copyright infringement: "Defendants, however, are not here sued for copyright infringement. They are sued for offering to the public and providing technology primarily designed to circumvent technological measures that control access to copyrighted works and otherwise violating Section 1201(a)(2) of the Act. If Congress had meant the fair use defense to apply to such actions, it would have said so."40 In addition, one defendant tried to claim immunity under Section 512 of the Copyright Act which limits the liability of Internet service providers for third-party infringement. This section was included in the DMCA along with the anti-circumvention provisions. The court held that Section 512, like fair use, only apples to acts of infringement, not to the distribution of circumvention technologies.41 So while the court was quick to use the threat of copyright infringement when considering the plaintiff's claim of irreparable harm in seeking an injunction, the same court refused to consider any provisions of the statute which might provide a defense for copyright infringement. To the extent that the anti-circumvention technology gives the copyright holder broader copyright protection than that granted by the statute, the user has little recourse. Rejection of First Amendment Defenses The defendants in the Reimerdes case also argued that the DeCSS software was protected speech under the First Amendment and that the DMCA was therefore unconstitutional. Without deciding whether DeCSS contained protected expression, the court held that the law was constitutional. The court first noted that any conflict between the Copyright Act and the First Amendment is ameliorated by the fair use doctrine.42 However, the court noted that "The DMCA sweeps more broadly [than the Copyright Act] by prohibiting production and dissemination of technology that can circumvent measures to protect copyright, not merely infringement of copyright itself. It is a prophylactic measure."43 The court then stated that the "Necessary and Proper Clause" of the Constitution grants Congress wide latitude to enforce the Copyright Clause: "Hence, the Necessary and Proper Clause grants Congress the power to do that which is necessary and proper to prevent others from publishing protected writings for the duration of copyright."44 The court then noted that Congress found that the DMCA "makes digital networks safe places to disseminate and exploit copyrighted materials."45 The court went on to state: "Given Congress' justifiable view that the DMCA is instrumental in carrying out the objective of the Copyright Clause, there arguably is no First Amendment objection to prohibiting the dissemination of means for circumventing technological methods for controlling access to copyrighted works."46 The court seems to be using circular reasoning: the law is constitutional because the Constitution grants Congress the authority to pass copyright laws. Obviously, it is the responsibility of the courts to ensure that laws which are "necessary and proper" do not violate other provisions of the Constitution such as the Bill of Rights. The court then continued its First Amendment analysis through the use of definitional balancing: "This approach seeks to determine, in light of the goals of the First Amendment, how much protection the speech at issue merits."47 Judge Kaplan then cited Justice Brandeis' eloquent defense of free speech in his Whitney concurrence to state that free speech is important "as a means to achieve a democratic society and as an end in itself. Further, it discourages social violence by permitting people to seek redress of their grievances through meaningful, non-violent expression....The computer code at issue in this case does little to serve these goals."48 Noting that the computer code has little, if any, expressive content, Judge Kaplan concluded that: "Executable computer code of the type at issue in this case does little to further traditional First Amendment interests. The DMCA, in contrast, fits squarely within the goals of copyright...In consequence, the balance of interests in this case falls decidedly on the side of the plaintiffs and the DMCA."49 The court also held that the DMCA is constitutional in this case because posting the DeCSS software was "part of a course of conduct the clear purpose of which is the violation of law."50 The court cited Giboney v. Empire Storage & Ice Co., a labor picketing case from 1949.51 In that case, members of an ice peddlers' union were picketing a distributor to force that distributor to utilize only union members-an illegal restraint of trade under Missouri state law. The Supreme Court held that the union's picketing was part of a course of conduct whose sole intent was to violate the state law and that the picketing could be enjoined.52 The Reimerdes court held that the defendants' primary purpose was to permit widespread copyright infringement: "[D]efendants cannot latch onto the expressive aspect [of the DeCSS software] in order to shield a key aspect of a chain of events, the main purpose of which is unlawful. Application of the DMCA to prohibit production and dissemination of DeCSS therefore does not violate the First Amendment."53 The court also rejected the defendants' argument that an injunction would be an unconstitutional prior restraint: "The fact that there may be some expressive content in the code should not obscure the fact that its predominant character is no more expressive than an automobile ignition key-it is simply a means, electronic in one case and mechanical in the other, of causing the machine with which it is used to function in a particular way."54 V. Conclusion The Reimerdes decision offers insight into how the law of copyright is changing. Rather than focusing on users who commit copyright infringement, copyright owners are targeting the individuals and corporations that provide the technology that facilitates infringement. In the past, these defendants could be found liable only through the theory of contributory infringement. Contributory infringement occurs when the third party knows the infringement is taking place and "induces, causes, or materially contributes to the infringing conduct..."55 The difficulty in determining when contributory infringement takes place was summed up by the Supreme Court in Kalem Co. v. Harper Bros. (1911): "In some cases where an ordinary article of commerce is sold nice questions may arise as to the point at which the seller becomes an accomplice in a subsequent illegal use by the buyer."56 In the landmark decision of Universal City Studios v. Sony Corp. of America, the Supreme Court stated: "[T]he contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible."57 In Sony, the issue was whether selling videocassette recorders (VCRs) equipped with television tuners constituted contributory infringement. Since this case involved the sale of hardware rather than copyrighted content, the Court borrowed from the doctrine of contributory infringement under patent law: "[T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."58 The Sony Court rejected the argument that "supplying the 'means' to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement."59 For sixteen years, the Sony case has stood for the proposition that copyright owners cannot restrict the use of technology merely because that technology may be used to commit infringement. Defendants can only be held liable when the technology has no substantial noninfringing uses. The Audio Home Recording Act's requirement that digital tape recorders be equipped with anticopying technology was a legislative response to the impact of the Sony ruling.60 The movie industry successfully convinced VCR manufacturers to include anticopying technology on VCRs to limit piracy.61 The DMCA codifies this industry compromise by requiring, for the first time, that analog VCRs incorporate anti-copying technology.62 The DMCA limits the scope of the Sony ruling by prohibiting the use of circumvention technology that defeats any technological measure installed by the copyright owner that effectively controls access to a work unless the circumvention technology has a "commercially significant purpose or use other than to circumvent a technological measure."63 This clause is significantly more limiting than test for contributory infringement outlined in the Sony holding. Under Sony, the purveyor of the technology need only demonstrate that there are substantial noninfringing uses for the technology. Under the DMCA, it is irrelevant whether the enduser is committing copyright infringement. Instead the question becomes whether the technology has substantial uses other than to defeat the copyright owner's anti-circumvention technology. Whether the purpose for defeating the anti-circumvention technology is permissible is irrelevant. For example, in the Reimerdes case, a court might find that the use of DeCSS to view DVDs on Linux operating systems is a substantial noninfringing use. Therefore, under Sony, the distribution of DeCSS might not constitute contributory copyright infringement. However, as Judge Kaplan noted, such an analysis is irrelevant under section 1201 of the statute, which only asks whether DeCSS has any substantial uses other than to unlock the CSS copy protection system.64 Thus the anti-circumvention provisions of the DMCA widen the scope of the copyright owner's power by creating a cause of action separate from contributory infringement and limiting the reach of the statute's defenses to infringement. The anti-circumvention provisions of the DMCA were part of the United States' response to the World Intellectual Property Organization (WIPO) Copyright Treaty, passed in December, 1996.65 The WIPO Copyright Treaty requires, among other things, that countries "provide 'adequate protection' against the circumvention of technical measures used by copyright owners to protect their works from infringement..."66 Copyright scholar Pamela Samuelson argues that the DMCA's anti-circumvention provisions go far beyond the protection required by the WIPO Copyright Treaty and that these provisions do not provide enough exceptions for permissible circumvention.67 The DMCA encourages copyright owners to adopt technological measures that provide extralegal protection for their works. Copyright owners can use these measures to expand control over their works beyond the limits on protection created by the Copyright Act. If other courts adopt the same interpretation of the law as Judge Kaplan, the statutory and constitutional limits on copyright will be more difficult to enforce. While it is easy for policymakers to focus on technological solutions in an age of rapid technological change, such solutions do not allow for important free speech safeguards that have been developed over the years. This is but one result of the shift in copyright from a legal concept to a technological concept. 1 Lawrence Lessig, Cyberspace Prosecutor, THE STANDARD, Feb. 21, 2000. Available online: www.thestandard.com/article/display/1,1151,10885,00.html. 2 John Perry Barlow is one of the most famous proponents for the latter proposition. See John Perry Barlow, The Economy of Ideas, WIRED 2.03 at 84 (1994). 3 17 U.S.C.A. § 506(a)(2) (West Supp. 1999), as amended by Pub. L. No. 105-147, 111 Stat. 2678 (1997). 4 Pub. L. No. 105-304, 112 Stat. 2860 (1998). 5 The RIAA has backed the Secure Digital Music Initiative (SDMI) as a standard to prevent the copying of MP3 files. Matt Richtel, Record Labels Assert Control in Cyberspace, N.Y. TIMES, Jul. 5, 1999 at C1. The MPAA and major movie studios refused to release films on DVD until the consumer electronics industry included CSS, a copy protection technology in DVD players. Benny Evangelista, Digital Dupes, SAN FRANCISCO CHRONICLE, Jan. 31, 2000 at B1. 6 See Benny Evangelista, Digital Dupes, SAN FRANCISCO CHRONICLE, Jan. 31, 2000 at B1; Sara Robinson, 3 Copyright Lawsuits Test Limits of New Digital Media, N.Y. TIMES ONLINE, Jan. 24, 2000. Available at: www.nytimes.com/library/tech/00/01/biztech/articles/24onli.html; Denise Caruso, Case Illustrates Entertainment Industry's Copyright Power, N.Y. TIMES ONLINE, Mar. 13, 2000 at Digital Commerce. 7 Bruce Haring, Protected or Locked Out? Foes of Copyright Act Say It Hampers Net's Growth, USA TODAY, Feb. 29, 2000 at 3D; Matt Jackson, The Digital Millennium Copyright Act of 1998: A Proposed Amendment To Accommodate Free Speech, 5 COMM. L. & POL'Y 61, 84-87 (2000); Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 BERKELEY TECH. L.J. 519, 521 (1999). 8 2000 U.S. Dist. Lexis 906 (S.D.N.Y., Feb. 2, 2000). 9 Baker v. Selden, 101 U.S. 99 (1880). 10 17 U.S.C. §102(b). 11 U.S. Const. Art. I, § 8, cl. 8. 12 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)(footnotes and citations omitted). 13 See Paul Samuelson, The Pure Theory of Public Expenditure, 36 REV. OF ECON. & STAT. 387 (1954). 14 See, e.g. EDGAR & JACQUELINE BROWNING, MICROECONOMIC THEORY AND APPLICATIONS, 3D. ED. 584-602 (1989). 15 A simple example reveals the basic principle. If an author invests $10,000 in time and expenses to create the "first copy" of a book and can produce 1,000 copies for $1.00 per copy, the total cost which must be recouped is $11,000. So the author must set the price for each copy of the book at $11 to recoup her investment. A copier who purchases the book for $11 and then makes 1,000 copies for $1.00 per copy has only invested $1011. The copier need only set the purchase price at $1.02 to earn a profit. Thus, the copier can significantly underprice the original seller due to the large disparity between first copy costs and reproduction costs. Even if, due to delays in getting the copied version of the book to market, the copier sells only 100 copies and the original author sells 900 copies, the author will still lose $1100. Thus, the author has no incentive to invest $10,000 in the creation of the work unless she can legally prevent the copier from entering the market. For a critique of the economic assumptions of copyright, see Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281 (1970). For a rebuttal of Breyer, see Barry Tyerman, The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer, 18 ULCA L. REV. 1100 (1971). 16 William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUDIES 325, 328-29 (1987). 17 Id. at 326. 18 See, e.g. NII Copyright Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d Sess. 21, 22 (Feb. 7, 1996)(statement of Jack Valenti, Chairman, Motion Picture Ass'n of Am.)[hereinafter Hearings on H.R. 2441]; id. at 35 (statement of Edward P. Murphy, Pres. Nat'l Music Publishers Ass'n); id. at 69 (statement of Barbara A. Munder, Senior Vice-Pres., McGraw-Hill Cos.); Copyright Infringement Online: Hearings on S. 1146 Before the Comm. on the Judiciary, 105th Cong., 1st Sess. (Sept. 4, 1997); Online Copyright Liability Limitation Act: Hearings on H.R. 2180 Before the Subcommittee on Courts and Intellectual Property of the House Judiciary Committee, 105th Cong., 1st Sess. (Sept. 16-17, 1997). 19 In January 2000 the U.S. trade deficit reached a record $28 billion. John Burgess, U.S. Trade Deficit Rises To Record $28 Billion, WASHINGTON POST, Mar. 22, 2000 at E1. 20 Jeri Clausing, Major Copyri8ght Holders Team Up to Lobby Congress on Piracy, N.Y. TIMES ONLINE, Feb. 22, 2000 at Capital Dispatch. See also, Mike Snider, Media vs. Web in Digital Copyright War, USA TODAY, Feb. 17, 2000 at A1. 21 Jessica Litman, "Copyright Legislation and Technological Change," 68 OREGON L.R. 275 (1989). 22 510 U.S. 569, 575 (1994). 23 17 U.S.C. § 107 (1994). 24 Jackson, supra note 7 at 84-87. 25 PAUL GOLDSTEIN, COPRIGHT'S HIGHWAY 20-21 (1994). 26 Pub. L. No. 102-563, 106 Stat. 4237 (1992) codified at 17 U.S.C. §§ 1001-1010. 27 17 U.S.C. § 1002(a) (2000). The purpose of the law was to prevent individuals from making a digital copy of sound recording and then using that copy to make more digital copies. 28 Pub. L. No. 105-304, 112 Stat. 2860 (1998). 29 The law contains specific exemptions too detailed to discuss here. 30 17 U.S.C. §1203 (2000). 31 17 U.S.C. §1204 (2000). 32 Universal City Studios, Inc. v. Reimerdes, 2000 U.S. Dist. Lexis 906 (S.D.N.Y., Feb. 2, 2000). 33 2000 U.S. Dist. Lexis 906 at *5. 34 DVD Copy Control Association, Inc. v. McLaughlin, et al., No. CV 786804 (Cal. Super. Ct., Santa Clara Cty., Jan 20, 2000). The DVD Copy Control Association is a trade group representing the Motion Picture Association of America (MPAA), the Business Software Alliance and the Electronic Industries Alliance to license out the DVD Content Scrambling System. 35 2000 U.S. Dist. Lexis 906 at *7. 36 17 U.S.C. §1201(a)(2)(B) (2000). 37 2000 U.S. Dist. Lexis 906 at *12 n.14. 38 17 U.S.C. §1201(f) (2000). 39 2000 U.S. Dist. Lexis 906 at *15-16. 40 Id. at *19-20. 41 Id. at *14. 42 Id. at *22. 43 Id. at *24. 44 Id. 45 Id. at *26 quoting S. Rep. No. 105-190, 105th Cong. 2d Sess. (1998). 46 Id. at *26. 47 Id. at *27. 48 Id. at *28-29 (footnotes omitted). 49 Id. at 31-32. 50 Id. at 32. 51 336 U.S. 490 (1949). 52 Id. at 498. 532000 U.S. Dist. Lexis 906 at *34-35. 54 Id. at *43. 55 Gershwin Publishing Corp. v. Columbia Artists Mgmt., 443 F.2d 1159, 1162 (2d Cir. 1971) (management firm that authorized performance of copyrighted works is liable for contributory infringement). 56 222 U.S. 55, 62 (1911). 57 464 U.S. 417, 442 (1984). 58 Id. at 442 (emphasis added). 59 Id. at 436. 60 See supra note 26 and accompanying text. 61 VIDEO WEEK, Oct. 21, 1996 at 2. 62 17 U.S.C §1201(k) (2000). 63 17 U.S.C. §1201(a)(2)(B) (2000) (emphasis added). 64 See supra note 37 and accompanying text. 65 WIPO Copyright Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/94 (Dec. 23, 1996)[hereinafter WIPO Copyright Treaty]. 66 Samuelson supra note 7 at 521. 67 Id. at 534-557. 21 14 Circumventing copyright