The EFF “Unintended Consequences” White Paper Update Marks the Ten Year Anniversary of the DMCA

by Lee Gesmer on November 10, 2008

It’s easy to forget that the Digital Millennium Copyright Act is really two separate laws. One protects publishers from “inadvertent” copyright infringement by creating the “notice-and-takedown” regime that requires copyright owners to demand that publishers take down copyrighted works published by third parties before asserting infringement. The other part of the DMCA is the anti-circumvention rule that generally prevents anyone from from bypassing copy protection schemes.

The Electronic Frontier Foundation (“the leading civil liberties group defending your rights in the digital world”) has published the fifth update to its comprehensive white paper, “Unintended Consequences: Ten Years Under the DMCA.”This 19 page report details the extent to which the DMCA’s anti-circumvention provisions have been used to not to mount legal challenges against pirates who develop technologies to circumvent copy protection, but against consumers, scientists, and legitimate competitors in ways not fully anticipated when the law was passed. The EFF paper provides a comprehensive history of this side of the DMCA, including the famous “Felton/SDMI challenge” incident in 2000 (“bet you can’t defeat this protection. You did? Well, any disclosure of that would violate the DMCA, so put a sock in it”), and the efforts to claim that an end-user license agreement may constitute an access control measure protected by the DMCA. This is a “must read” document for anyone interested in anti-circumvention enforcement under the DMCA.

Articles by Joe Laferrera of my firm, discussing application of the DMCA in the cases of Lexmark International v. Static Control Components, and Chamberlain Group v. Skylink Technologies are linked here and here.

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