Executive Summary of The “Innovator’s Guide to the DMCA”

This paper is written to provide technology innovators with an understanding of the Digital Millennium Copyright Act (DMCA) and the opportunities it provides for research and development of new products and services. The DMCA, as required by international treaties, makes it illegal to gain unauthorized access to copyrighted works online or make the tools necessary to do so. Copyright owners argue this is necessary to incentivize online distribution of their works but critics argue that the law stifles innovation. This paper demonstrates that the DMCA is not that restrictive and that the law itself actually allows for a wide range of activities that are essential to the development of new technologies.

While the DMCA has only two prohibitions, it has ten key exemptions.

The two things the DMCA says you can’t do are:

1. Circumvent, bypass, disable or break a digital lock on copyrighted material.

2. Make devices intended for “hacking” or circumvention.

The ten ways the DMCA says you can circumvent or break the digital locks on copyrighted works or make the tools necessary to do so are:

1. Circumvent if you have authorized access to a copyrighted work.

2. Circumvent if the copyrighted work is protected by an ineffective technological measure.

3. Circumvent for reverse engineering.

4. Circumvent for encryption research.

5. Circumvent for security testing.

6. Make circumvention tools that do are not primarily hacking tools.

7. Make circumvention tools for reverse engineering.

8. Make circumvention tools for encryption research.

9. Make circumvention tools for security testing.

10. Request new exemptions through the Librarian of Congress every three years.

In the ten years since the DMCA became law, the exponential growth in technological innovation demonstrates that the DMCA is not as restrictive as its critics argue. Since 1998, the relatively few court cases dealing with the DMCA have either not addressed key issues or have expanded the scope of permissible activities. The law targets the truly ill-intentioned. The DMCA allows for a myriad of ways innovators can, with proper precautions, access and use copyrighted works to develop new products and services.