Since it was enacted, the U.S. Digital Millennium Copyright Act (DMCA) has
stifled security research, led to the arrest of visiting programmers, shut
down fair use, prohibited the creation of free DVD players for Linux, and
facilitated anti-competitive moves by manufacturers of printer cartridges
and garage door openers, among others. The EFF and others have been pushing
for a reform of the DMCA for some time, and the occasional member of
Congress has tried to bring that about. The DMCA is a law which clearly
Now, there is a new attempt to amend the DMCA in the works; a copy
of the DMCA with the proposed changes highlighted [PDF] is available
for those who are interested. This proposal, however, would have the
effect of making the DMCA significantly worse. Here are a few highlights:
- No longer content with criminalizing copyright infringement, the new
law would make even attempted infringement illegal - with the same
penalties. There would be no need to actually copy anything to
violate the new DMCA.
- The new law authorizes the impounding of "records documenting
the manufacture, sale, or receipt of items involved in such
violation" Such records certainly will include Internet
service provider logs.
- The penalty for copyright infringement will be raised to a maximum of
ten years in prison - twenty for repeat offenses. In the future,
rational criminals will not copy CDs; the potential penalty for simply
stealing them will be lower. The new ten-year penalty will apply to
those committing the heinous crime of recording a live concert as
- The use of wiretapping and similar techniques is authorized for
investigations into criminal copyright infringement or recording of
- Criminal and civil forfeiture powers would be available to law enforcement agencies
dealing with copyright cases.
The addition of forfeiture powers is, perhaps, the scariest part of this
whole proposal. Civil forfeiture has long been a part of the U.S. "drug
war," with the result that many law enforcement actions - often against
innocent people - have been motivated
primarily by the prospect of seizing valuable property. If this law goes
through, any music player, laptop, or server deemed to have somehow
participated in copyright infringement will be subject to seizure by the
police - along with the houses they are found in. Anybody who thinks this
power would not be abused has not been paying much attention.
As of this writing, the proposed legislation has not yet been formally
introduced for consideration, but has been circulated among some members of
the House of Representatives.
A different bill which, according to the
EFF has been introduced is the "PERFORM act." This law can be thought
of as a sort of broadcast flag for the net; it would require those
broadcasting copyrighted material on the net to use DRM-afflicted formats.
No more Vorbis or Theora streams - or even MP3. And, obviously, no way to
tune into such streams using free software.
These bills make it clear that the powers behind the expansion of
"intellectual property rights" are not yet satisfied and want more. This
sort of thing will keep coming, and not just in the U.S. If we value our
freedom, we must be prepared to keep fighting - and to work to push the
pendulum in the other direction.
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