Unintended Consequences: Ten Years under the DMCA A9

So what is the Digital Millennium Copyright Act (DCMA?) What was the intention behind the formation of this act? The DCMA was enacted with the intent of preventing the theft of copyrighted material on the internet. In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities. DMCA

To determine whether a use of a work is fair, courts engage in a case-by-case analysis, starting with the four factors set out in the Act: the purpose and character of the use; the nature of the work; the amount and substantiality of the work; and the harm to the market for the work.

The question that begs response is what problems have the DMCA created? We know that big business have long used copyright laws to control piracy of their proprietary material. This includes ideas, products, and content. Many an artist can tell you that their life's work is owned by some big multimedia entity and they have absolutely no control over its dissemination. So who does this act protect? not the consumer and often times not the creator.

The one who benefits is the copyright holder. The internet has created a large open access forum to these traditionally protected bits and pieces of content. The practice of creating "mash-ups" really pushes the limit of proprietary control. Because of the creative and highly personal interpretation of others created works pushes the boundaries of the original interpretation many copyright holders are taking a very personal view of these mash-ups and other created objects using content originally created and copyrighted by others. Many of these individuals and corporations do not support these varied interpretations.

There is a great deal of concern regarding the re-sale and theft of the content and related technology's. How does the DCMA regulate the decision of what is authorized and regulation and what is not. This is where they are falling short on protecting the consumer and the copyright holder. Oft times the consumer is making a sound and reasonable use of the content and/or technology but is prevented from sharing their work because of a desist order that is not supported by the force of the law, yet they are permitted to use this act to make a frivolous request in the first place.

Major criticisms of the act include not only frivolous use of “take down” orders, but it allows a monopoly by Macrovision's analog protection programming, it discourages open research and development of new technology s and communications formats. There is open resistance and strong opposition by influential organizations such as the “Electronic Frontier Foundation”. EFF