![handle is hein.journals/pittjtlp3 and id is 1 raw text is: Volume III - Article 1
The DMCA and Researchers' First Amendment Rights
Amy E. McCall*
Spring 2002
Copyright C 2002 University of Pittsburgh School of Law
Journal of Technology Law and Policy
Introduction
The Digital Millennium Copyright Act, or DMCA, was enacted by Congress in
October of 1998.1 Section 1201(a)(1) of the Act, known as the anti-circumvention
provision, states that [n]o person shall circumvent a technological measure that
effectively controls access to a [digital] work protected under this title..2 Sections
1201(a)(2) and 1201(b) combine to form the anti-trafficking provisions, which
provide that no one shall distribute technology that can accomplish this
circumvention.3 Congress constructed a two-year delay in implementation of these
provisions, thus, on October 28, 2000, circumvention of effective technological
controls became punishable by both civil and criminal actions.4 Unfortunately, the
presence of these provisions, along with courts refusal to recognize traditional
copyright privileges and defenses in this area of paracopyright,5 chills programmers'
speech.
Long before the enactment of the DMCA, commentators worried that the
passage of this proposed legislation would adversely affect the First Amendment rights
of citizens.6 These First Amendment worries ranged from a generalized concern about
the right to read anonymously, implied in the First Amendment to the free speech
rights of researchers and programmers whose business it is to create and analyze
technological measures that effectively control access to a digital work.7
This paper will focus on two current civil actions under the DMCA in which
programmers are asserting that enforcement of the DMCA violates their First
Amendment rights; Universal City Studios, Inc. v. Reimerdes8 and Felten v. RIAA.9
Before discussing these significant cases, Part I of this paper provides a sufficient
history of copyright to understand the circumstances that brought about the DMCA.
Part II provides a brief introduction to the concepts and terminology necessary to
understand the cases. Part III introduces the two cases mentioned above which are
currently before the courts. Although both cases directly implicated the DMCA, they
reached that point in different ways. In Reimerdes, Universal City Studios used the
DMCA to effectively challenge Internet posting of decryption software capable of
decrypting DVDs, while in Felten, researchers sought reassurances that they would be
permitted by creators of protection techniques for music CDs, to publish information on
their successful decryption. Both suits additionally sought to have the anti-
circumvention and anti-trafficking provisions of the DMCA declared unconstitutional
as to unacceptable restrictions on researchers' First Amendment Rights. Part IV lays out
several of the leading alternatives to the current anti-circumvention provisions, ranging](ViewImageLocal?handle=hein.journals/pittjtlp3&div=1&collection=&method=preview&ext=.png&size=3)
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