This post is related to another I posted today about a conference on the Digital Millennium Copyright Act (DMCA). I intended to cover both in one post, but there was too much ground to cover so I broke it into two.
Congressman Lamar Alexander (R-TX), Chairman of the powerful Courts, the Internet, and Intellectual Property Subcommittee (which has jurisdiction over the DMCA), recently floated the Intellectual Property Protection Act (IPPA). The draft proposal has a broad reach across copyright enforcement, and it specifically reopens part of DMCA to arguably make it more stringent. The full text of the proposal is here, and here is a “redline” (which shows how the proposal would change underlying law) of just the language that amends the DMCA.
The DMCA makes it illegal to circumvent a technical protection measure that controls access to a copyrighted work. It also makes it illegal to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” a tool that could be used to circumvent access controls. The proposed amendment would just deal with the “tools” section of the DMCA by creating a definition for the currently undefined “traffic in:”
“[T]he term “traffic in” means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of.”
There are a couple of troubling aspects. The first being that defining “traffic in” in this way seems to shift the focus of mass distribution of a tool to one-to-one distribution. The other being the use of the word “intent.” Here is Ed Felten’s take from freedom-to-tinker.com:
“This bill, if passed, would probably increase the DMCA’s chilling effect on research. Currently, a researcher can steer clear of the trafficking provision by keeping any circumvention devices to himself, using those devices himself (lawfully) in the lab. If the Smith bill passes, the researcher would have to worry that a plaintiff or prosecutor will misjudge his intent and bring a case, and that a judge or jury might be convinced that the researcher was eventually planning to distribute the device. Even if the claim of bad intent is baseless, refuting it will be slow, painful, and expensive.”
The usage of intent seems to reopen a similar worry that many technologists had about the “Induce Act,” where individuals could face litigation based on the intent of their design. Making this determination is particularly tricky and fact intensive, meaning costly legal bills.
Apparently the IPPA was drafted by the Justice Department as a wish list of the enforcement authorities it wants to deal with copyright infringement. Congressman Smith is floating this bill in draft form right now, but at yesterday’s DMCA conference he mentioned he will be holding a hearing on it in May. Looking for a silver lining, this may open up debate on DMCA generally, giving technologists an opportunity to educate Members of Congress on its drawbacks.