The Digitial Millennium Copyright Act was enacted in 1998 as a supplement to the Copyright Act of 1976 primarily to address some of the challenges the Internet presents to traditional copyright law. The Internet has made it far easier to transmit copyrighted material to millions of people without the need to actually produce hard copies. This makes it not only easier for almost anyone to mass produce and transmit copyrighted material, but also makes it more difficult to police and catch violators. To protect copyrighted works, many copyright holders use high tech security measures to prevent unauthorized access.
The anti-circumvention provisions of the Digital Millennium Copyright Act make it unlawful to circumvent these protective measures. Violators can be subject to both civil and criminal penalties. This may seem quite reasonable. After all, the security protections are a necessary measure to protect these works (or at least to deter and discourage unauthorized copying) and should be respected. However, the anti-circumvention provisions are so far-reaching and have been so broadly applied as to bring into question whether the traditional fair use exceptions can be relied on as a defense.
Under traditional copyright law, a professor can copy a portion of a copyrighted book to show or even distribute to her class for educational purposes. However, if that book is a digital book that contains anti-piracy security measures, the professor would have to circumvent those access controls to copy the same portion of that book. Not only is any circumvention of access controls a violation of the anti-circumvention provisions of the DMCA, but the circumventing technology itself is also illegal. Accordingly, even if the professor’s act of circumventing were found to be a fair use exception and not illegal, the professor would still have to figure out how to circumvent the technology in order to make that legitimate copy, and thus would probably have to purchase an illegal device to do so. In this way, the anti-circumvention provisions of the DMCA restrain fair use for educational purposes. In addition to restraints on educational fair use, the anti-circumvention provisions have had other side effects, such as stifling computer security research and access to public works.
Civil penalties under the anti-circumvention provisions of the DMCA include both actual and statutory damages. Statutory damages range from $200 up to $2,500 per act of circumvention. In addition to civil penalties, any person who is found to have willfully violated this provision for commercial gain can be subject to fines of up to $500,000 and a prison term of up to 5 years for the first offense. Subsequent offenses can subject the violator to fines up to $1,000,000 and up to a 10-year prison term.
Questions have been raised by scholars and organizations as to whether the anti-circumvention provisions violate the First Amendment. Although the DMCA contains a general provision stating that traditional defenses (including fair use) shall not be affected by the DMCA, thus far the courts have been quick to enforce the provisions in holding against anyone who is found to have circumvented (or provided means to circumvent) access controls, despite the raising of the fair use defense. Mere threats of anti-circumvention provision violations and enforcements of its stiff penalties have stopped would-be presumably legitimate users of copyright materials dead in their tracks. The Electronic Frontier Foundation maintains a list of examples of how the anti-circumvention provisions have thwarted would-be legitimate uses of copyrighted works.
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