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Why is Congress Expanding Enforcement of the DMCA?

March 26, 2013 , ,

It’s no longer a debate: people recognize that the anticircumvention provisions of the DMCA are flawed. Insofar as they keep people from doing things like unlocking their cell phones, over 100,000 people and the White House have said so, members of Congress have said so, and the FCC has said so. There’s also widespread recognition that the DMCA as a whole needs reevaluation, which the Register of Copyrights recognizes.

So why are we seeing simultaneous efforts to double down on enforcing a defective law?

Yesterday, Senators Baucus and Hatch introduced a hefty bill on trade issues. Included in this bill is a significant part entitled “Import-Related Protection of Intellectual Property Rights.” And within that is a section entitled “seizure of circumvention devices.”

That section gives Customs and Border Protection the authority to seize any “technology, product, service, device, component, or part thereof” that it thinks can be used to violate the DMCA.

As we noted when these provisions were put forward a couple of years ago, this is an incredibly broad array of technologies, and an extremely complicated call to make. Deciding whether or not something violates the DMCA’s anticircumvention provisions is an incredibly complicated task, which involves not only understanding how the technology works, but also which parts of it the law actually applies to. All sorts of people have tried to claim DMCA protection over digital locks that, as it turns out, don’t actually protect copyrighted works. Instead, as in phone locking or inkjet printers, we see them being used to lock customers in to expensive plans, or higher-priced replacements. Given the technical and legal complexities, it’s uncertain that Customs can make the right call, and not end up seizing all sorts of general purpose technologies (the way it ended up “seizing” completely innocent domain names).

Leaving aside the looming question of whether or not this provision is a good idea on its merits, though, you have to wonder at the timing. Congress is increasing enforcement mechanisms for a law even as people are calling its attention to the problems that law creates.