Ten years ago this week, President Clinton (remember him?) signed the Digital Millennium Copyright Act into law. Ostensibly passed to bring US copyright law in line with World Intellectual Property Organization treaties, the law has had a variety of effects, some good, others obviously not. If there has been any unambiguous impact of the law, it has been that it has provided a whole new venue for companies to file frivolous lawsuits that attempt to deny others the chance to communicate or engage in business.

The two main features of the DMCA are its "safe harbor" provisions for sites that host user-generated content, and its anticircumvention provisions, which apply to anything that could crack a DRM scheme. We'll take a look at each of these separately, since they've had very different impacts.

Safety in harbors

The safe harbor provisions of the DMCA function in much the same way as those that appeared in the Communications Decency Act, which dates from two years earlier. In general, they legally protect service providers from being held responsible for the actions of their users in regards to otherwise illegal content. Thus, ISPs can't be held responsible for the file sharing that rushes across their networks, nor can video-sharing websites be sued if one of their users posts a portion of a copyrighted film on their servers. All these companies have to do is demonstrate they respond to complaints about the presence of copyrighted material; generically, those complaints are termed a DMCA takedown notice.

Overall, the system has worked remarkably well. The last 10 years have seen an explosion of user-contributed content to sites like Flickr, YouTube, and many others. If the Web 2.0 movement has been all about social web use, then content contributed by members of those social groups has been its fuel. I think it's safe to say that, if companies faced the prospect of Jammie Thomas-sized penalties every time one of their users posted a bit of copyrighted material, then a lot fewer of those companies would have entered the market.

That's not to say that the safe harbor provisions have worked flawlessly. Google is facing down a $1 billion lawsuit from content owner Viacom, which alleges a pattern of profiting from infringing content, despite YouTube's rapid response to DMCA takedown notices. Another recent case found that DMCA safe harbor rules applied to video services, but that hasn't protected Google from racking up legal fees defending itself.

Meanwhile, frivolous takedown notices have ensnared everyone from critics of Scientology to the McCain/Palin campaign. Although frivolous notices carry the possibility of heavy penalties on those that file them, right and wrong in these cases can be hard to sort out: does a one-minute clip count as infringement? How about 10 seconds?

All of that is slowly being hashed out by the courts, but a lot of time and energy could have been saved if the safe harbor provisions were clarified when first formulated. But that pales in comparison with the anticircumvention aspects of the DMCA, which are deeply flawed as written.

Fair use treated unfairly

The principle behind the anticircumvention provisions is that any effort to get around a scheme that protects copyrighted content is illegal. Although that seems reasonable at first glance—those schemes are designed to prevent the illegal duplication of copyrighted material, after all—the provisions ignore a key aspect of copyright: there are situations where duplication of copyrighted material is legally acceptable, called fair use. By eliminating any consideration of fair use, the DMCA has essential made motivation irrelevant in defining criminal activity.

The decade since has produced countless cases that show the absurd consequences of this provision. Researchers held off on publicizing the rootkit that Sony placed on some of its CDs as a form of copy protection, in fear that publicizing details of this security threat would leave them on the wrong side of the DMCA. A Russian programmer was actually forbidden from leaving the US for several months at the behest of Adobe, which was upset that his company had cracked its eBook protection scheme.

As with safe harbor, the anticircumvention provisions have lent themselves to abuse. Lexmark devised a scheme to determine of an ink cartridge for its printers was made by the company itself, then sued third party ink-makers, claiming that the DMCA covered the software features that secured this scheme. The company lost, but this hardly prevented other companies from going down this route. One manufacturer or garage doors started authenticating its remotes, and used this as a pretense to suing a universal remote maker using the DMCA. That company lost, too.

But the big loser here has been the public. As more devices gain the ability to handle music and video—I can think of five different device classes that handle one or the other lying around my (quite small) apartment right now—consumers have found the DMCA is a hurdle that keeps them from having the content they own available on the device of their choosing. Want to watch a DVD movie on an iPhone? Good luck; software that allows you to do so violates the DMCA. Sophisticated users know how to find the software that does what they want, but the average consumer is stuck with lots of formats and protection schemes, and no guarantee that they'll be able to get the content they own where they want it.

One hand giveth...

Ironically, if the anticircumvention provisions have the potential to be a nightmare for the consumer, the safe harbor provisions have helped undercut their effect. By providing a degree of protection to sites that host user-generated content, they have helped to ensure that those looking for a way to transcode some of their media can usually find some user-contributed directions on how to manage it. None of this, however, means that the US should accept the obvious problems with the statute; the only question is whether reform is possible without providing an opening to those who would prefer to see even more draconian restrictions.

Further reading:

The Electronic Frontier Foundation has updated its report on the statute (PDF).