The DMCA is a federal law in the United States. It addresses a number of different copyright issues in the online and digital world. It would be an understatement to suggest there are haters of this law on both sides of the copyright law debate. So, what makes the DMCA controversial?
You should also be aware that the DMCA is controversial for one of its other sections in which Congress addressed technical circumventions – Section 1201. The key language in the code reads,
“(a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”
Copyright holders and courts interpret this language as meaning people cannot break the security protocols on a device to access and tweak the underlying copyrighted work. You might think such a position is fine at first glance, but we run into problems the minute we apply the rule to the real world.
Consider your car. Modern cars use software to manage a variety of functions including engine performance. What if the software develops a glitch? A technical reading of Section 1201 suggests an odd outcome. You, the owner of the car, would violate the DMCA if you attempted to fix the software. Yes, you would violate the DMCA for the heinous and nefarious act of…working on your own car.
Fortunately, the Library of Congress and Copyright Office have the authority to issue rules in which the agencies can create exemptions to Section 1201. The Office recently created an exemption for repairs to software on cars, for example. But you can anticipate where this rulemaking authority has led. Yes, proponents and opponents of Section 1201 spend all day arguing over what should and should not be exempt. Once the Copyright Office reaches a decision, the parties then go into a prolonged battle over how broad or narrow the Office should define the exemptions. Subsequent court battles are not unheard of.
Why is the DMCA controversial? For all the reasons stated herein and in the video above. Is there any momentum in the United States to modify the DMCA in a meaningful manner? Not at this time.