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Unintended Consequences: 12 Years Under the DMCA

Wednesday, March 3, 2010

Abstract

This is the sixth update to the report, which aims to catalog all the reported instances where the DMCA's ban on tampering with DRM have been abused to stymie fair use, free speech, and competition, rather than to attack "piracy."

Congress enacted the DMCA's ban on bypassing DRM at the urging of entertainment industry lobbyists who argued that DRM backed by law would quell digital copyright infringement. Of course, 12 years later, that exactly hasn't worked out. Nor is it likely to ever work out. But lots of industries have recognized that these provisions of the DMCA are good for other things—like impeding scientific research and legitimate competition. The Unintended Consequences report collects these stories, including oldies like Lexmark's effort to block toner cartridge refilling and new cases like the lawsuit against RealDVD.

Other new additions to the report include Apple's use of the DMCA to lock iPhone owners to Apple's own App Store for software, Apple's DMCA threats against Bluwiki for hosting discussions about iPod interoperability, and Texas Instruments' use of the DMCA to threaten calculator hobbyists trying to write their own operating systems.

Although in many cases the DMCA abuser backs down or is beaten in court, the abuses and resulting chilling effect on legitimate activities continues. And even though the U.S. Copyright Office is considering proposed exemptions to the DMCA, that proceeding won't prevent more abuses in the future.

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