Berkman Student Fellow Christopher Soghoian, assisted by
Harvard Law School’s Cyberlaw Clinic, recently submittedresponses to questions from the U.S. Copyright Office regarding his Digital Millenium
Copyright Act (DMCA) §1201 Exemption request.
request, submitted in
December 2008 by Chris and the Cyberlaw Clinic, asked the Copyright Office to
grant exemptions from §1201's anti-circumvention prohibitions in two
cases: one for lawfully purchased audio and video files protected by
digital rights management (DRM) technology when the online stores and
authentication servers that allow access to such files cease to operate, and
another for researchers to document how the authentication servers that enable
various currently-existing DRM schemes function in order to allow users to take
advantage of the first exemption in case a particular scheme fails.
In May 2008 Chris testified
at a Copyright Office hearing in Washington,
DC in support of the exemption
requests.After the hearing, the Copyright
Office sent written follow-up questions to those who testified, seeking
reactions to several proposed limitations on the second (researcher) exemption
request. The questions appeared to be
motivated by a concern that hackers might try to abuse the exemption and break
DRM schemes even where DRM servers were never shut down or where the content
provider gave full refunds.
Chris’s response to the Copyright Office’s questions
explained that the wording of its proposed limitations would be unworkable in
practice because they are based on things that companies and users might do or not
do in the future, long after a researcher has engaged in studying and
documenting a DRM system.For example, a
researcher could lose the benefit of the exemption and risk DMCA liability if,
years after her study, the DRM scheme failed but the company decided to offer
refunds.Because these are the sorts of things
that no researcher could ever know or predict in advance, they cannot provide a
practical standard for limiting the research exemption.
Instead, Chris’s response argued, limits on the exemption,
if any in fact are needed, should focus on the good faith intentions and
objectives of the researcher at the time he engaged in the research.A good faith requirement, which is used in
other parts of the DMCA, would ensure that the exemption is not abused while
still preventing unwarranted legal attacks that would chill legitimate research.
The response also described a significant new development
that occurred in June 2008, after the Copyright Office hearings.Chris’s original request was prompted in part
by announcements made by Yahoo! Music, Microsoft's MSN Music Store and
Wal-Mart's Music Store in 2008 that they each intended to shut down their
authentication servers, thereby depriving their users of the continued full
enjoyment of the music they had lawfully purchased.After great public outcry, each of those
music providers either decided to forestall the shutdown of the server or
provide customers with a full refund for their purchases.After the May, 2009 hearing, however,
Wal-Mart announced it would again shut down its DRM servers and would not give
customers a refund or other access.Chris had explained at the hearing that the exemption was needed because
it was only a matter of time before a music, movie or software provider left
its users high and dry in this fashion.His response letter to the Copyright Office demonstrated that this
prediction had now -- and quickly -- come true.Far from a speculative or hypothetical concern, the worry about
consumers losing access to lawfully purchased content without the requested
exemption is quite real.
Chris submitted his response with the assistance of Phil
Malone, Clinical Professor of Law and the Director of Harvard’s Cyberlaw Clinic,
and Rachel Gozhansky, a Cyberlaw Clinic summer intern.