WIPO Copyright and Performances and Phonograms Treaties Implementation Act

The WIPO Copyright and Performances and Phonograms Treaties Implementation Act, a part of the Digital Millennium Copyright Act (DMCA), a 1998 US law. It has two major portions, Section 102, which implements the requirements of the WIPO Copyright Treaty and Section 103, which provides strong protection against the circumvention of copyright protection systems, with narrow exceptions, and prohibits the removal of copyright management information.

Contents

1 Section 102 2 Section 103 2.1 Section 103 cases 3 Why and why not 4 Copyright Office rulemaking procedures 5 External links

Section 102

Section 102 gives the act its name, which is based on the requirements of the WIPO Copyright Treaty concluded at Geneva, Switzerland, on 20 December 1996. It modifies US copyright law to include works produced in the countries which sign the following treaties:

• the Universal Copyright Convention
• the Geneva Phonograms Convention (Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Geneva, Switzerland, 29 October 1971)
• the Berne Convention for the Protection of Literary and Artistic Works
• the WTO Agreement (as defined in the Uruguay Round Agreements Act)
• the WIPO Copyright Treaty signed at Geneva, Switzerland on 20 December 1996
• the WIPO Performances and Phonograms Treaty concluded at Geneva, Switzerland on 20 December 1996
• any other copyright treaty to which the United States is a party

Section 103

Section 103 provoked most of the controversy which resulted from the act. It is often called DMCA anti-circumvention provisions. It restricts the ability to sell devices which circumvent copyright protection systems, adding Chapter 12 consisting of sections 1201 through 1205 to US copyright law.

Section 1201 makes it illegal to:

• (1) "circumvent a technological measure that effectively controls access to a work" except as allowed after rulemaking procedures administered by the Register of Copyrights every three years.
• (2) "manufacture, import, offer to the public, provide, or otherwise traffic in" a device, service or component which is primarily intended to circumvent "a technological measure that effectively controls access to a work", and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose.
• sell any VHS VCR, 8mm analogue video tape recorder, Beta video recorder or other analogue video cassette recorder which isn't affected by automatic gain control copy protection (the basis of Macrovision). This is not required if the video is directly from a camera lens, for a professional recorder or for resale of a used recorder.

Section 1201 also says that:

• it will not affect rights, remedies, limitations, or defenses to copyright infringement, including fair use
• it is not necessary to design components specifically to use copy protection systems.
• "nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products"
• circumvention for law enforcement, intelligence collection and other government activities is allowed
• reverse engineering to achieve interoperability of computer programs is allowed
• encryption research is allowed
• systems to prevent minors from accessing some internet content are allowed to circumvent
• circumvention to protect personal information by disabling part of a system is allowed
• security testing is allowed

Section 1202 prohibits the removal of copyright management information.

Section 103 cases

Here are a handful of notable uses of the law:

DVDs are often encrypted with the Content Scrambling System (CSS). To play a CSS DVD, you must decrypt it. Jon Johansen and two anonymous colleagues wrote DeCSS, a program that did this decryption, so they could watch DVDs in GNU/Linux. US servers distributing this software were asked to stop because they were violating this law.

2600 Magazine was sued under this law for distributing a list of links to websites where DeCSS could be downloaded.

A similar program, also by Jon Johansen, decrypted iTunes Music Store files so they could be played on GNU/Linux. Apple got the software taken down from several servers for violating this law.

Dmitry Sklyarov, a Russian programmer was jailed under this law when he visited the US, because he had written a program in Russia which allowed users to access documents for which they had forgotten the password to. (He was eventually acquitted by a jury of all counts, reportedly because the jury thought the law was unfair -- a phenomenon known as jury nullification.)

aibohack.com, a website which distributed tools to make Sony's AIBO robotic pet do new tricks, like dance jazz. Sony alleged that the tools violated this law, and asked for them to be taken down. (After negative press they changed their mind.)

A company selling mod chips for Sony PlayStations, which allowed the systems to play video games from other countries, was raided by the US government and their products were seized under this law.

Smart cards, while they have many other purposes, are also used by DirecTV to decrypt their television satellite signals for paying users. Distributors of smart card readers, which could create smart cards (including ones that could decrypt DirecTV signals) were raided by DirecTV and their products and customer lists were seized. DirecTV than sent a letter to over 100,000 purchasers of the readers and filed lawsuits against over 5,000. They offered to not file or drop the suit for $3500, less than litigating the case would cost. (The suits are ongoing.)

Lexmark sued Static Control Components which made replacement recycled toner cartridges for their printers under this law. Lexmark initially won a preliminary injunction, but that injunction was vacated by the Court of Appeals for the Sixth Circuit. (The lawsuit is ongoing.)

The Chamberlain Group sued Skylink Technologies for creating garage door openers that opened their own garage doors under this law. (The lawsuit is ongoing, though the Court of Appeals for the Federal Circuit has issued a ruling casting seriosu doubt on Chamberlain's likelihood of success.)

Prof. Edward Felten and several colleagues, were threatened with a lawsuit under this law if they presented a paper at a technical conference describing how they participated in the SDMI decryption challenge. (After Felten sued for declaratory judgement, the threat was dropped.)

Secure Network Operations (SNOsoft), a group of secrurity researchers, published a security flaw in HP's Tru64 operating system after HP refused to fix it. HP threatened to sue them under this law. (After negative press they dropped the threat.)

Blackboard Inc. filed a civil complaint against university students Billy Hoffman and Virgil Griffith who were researching security holes in the Blackboard Transaction System. A judge issued an injunction on the two students to prevent them from publishing their research. Blackboard Inc. had previously sent a complaint to the students saying they were violating this law.

Princeton student Alex Halderman was threatened by SunnComm under this law for explaining how Mediamax CD-3 CD copy protection worked. Halderman explained that the copy protection could be defeated by holding down the shift key when inserting the CD into Windows (this prevented autorun, which installed the Mediamax protection software). After press attention SunnComm withdrew their threat.

Blizzard Entertainment threatened the developers of bnetd, a freely available clone of battle.net, a proprietary server system used by all Blizzard games on the Internet. Blizzard claims that these servers allow circumvention of its CD key copy protection scheme. (The Electronic Frontier Foundation is currently negotiating a settlement.)

Why and why not

Large copyright holders like the MPAA and RIAA say the law is necessary to prevent copyright infringement in the digital era, while a growing coalition of Internet activists feel that the law stifles innovation while doing little to stop copyright infringment.

Some proponents of the law claim it was necessary to implement several WIPO treaties. Opponents respond that the law was not necessary, even if it was it went far beyond what the treaties require, and the treaties were written and passed by the same industry lobbyists people who wanted to pass this law.

Others claim that the law is necessary to prevent online copyright infringement, using perfect digital copies. Opponents note that copyright infringement was already illegal and the DMCA doesn't outlaw infringement but only legal uses like display and performance.

Opponents of the law charge that it violates the First Amendment, because it restricts the distribution of computer software, like DeCSS. The Eleventh Circuit rejected this argument in MPAA v. 2600, suggesting that software wasn't really speech. Most other circuits that have considered the issue concluded software is speech, but have not considered this law.

Opponents also say it creates serious chilling effects stifling legitimate First Amendment speech. For example, John Wiley & Sons changed their mind and decided not to publish a book by Andrew Huang about security flaws in the Xbox because of this law. After Huang tried to self-publish, his online store provider dropped support because of similar concerns. (The book is now being published by No Starch Press.)

Opponents also note that since the law gives full control to copyright holders over what uses are and are not permitted, it essentially eliminates fair use. For example, ebook readers protected by this law can prevent the user from copying short excerpts from the book, printing a couple pages, and having the computer read the book aloud -- all of which are legal under copyright law, but building a tool to do them is illegal under this law.

Copyright Office rulemaking procedures

As required by the DMCA, in 2002 the U.S. Copyright Office launched a public appeal for comments on the DMCA in order "to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls". The first set of comments is posted here (http://www.copyright.gov/1201/2003/comments/index.html).

External links

• Text of the law (http://www4.law.cornell.edu/uscode/17/ch12.html)
• Copyright Office: Rulemaking procedures (http://www.copyright.gov/1201/)

• EFF: Unintended Consequences: Five Years under the DMCA (http://www.eff.org/IP/DMCA/unintended_consequences.php)