WIPO Copyright and Performances and Phonograms Treaties Implementation Act - Criticisms

Criticisms

Large industry associations like the MPAA and RIAA say the law is necessary to prevent copyright infringement in the digital era, while a growing coalition of open source software developers and Internet activists argue that the law stifles innovation while doing little to stop copyright infringement. Because the content must ultimately be decrypted in order for users to understand it, near-perfect copying of the decrypted content always remains possible for pirates. Meanwhile, developers of open source and other next-generation software must write complex and sophisticated software routines to ensure interoperability of their software with legacy Windows technology. Thus, the opponents are angry at having to bear the costs of technology that results in no benefit.

Some proponents of the law claim it was necessary to implement several WIPO treaties. Opponents respond that the law was not necessary, even if it was it went far beyond what the treaties require, and the treaties were written and passed by the same industry lobbyists people who wanted to pass this law. They also note that the severe ambiguities in the law, its difficulty in enforcement, and its numerous exceptions make it ineffective in achieving its stated goal of protecting copyright holders.

Others claim that the law is necessary to prevent online copyright infringement, using perfect digital copies. Opponents note that copyright infringement was already illegal and the DMCA does not outlaw infringement but only legal uses like display and performance.

Opponents of the law charge that it violates the First Amendment on its face, because it restricts the distribution of computer software, like DeCSS. The Second Circuit rejected this argument in MPAA v. 2600, suggesting that software was not really speech. Under the specific facts of the case, however, the Constitutional decision was not controlling. The defendants' ultimate purpose was to make possible the copying of copyrighted content, not publishing their own speech. Most other circuits that have considered the issue concluded software is speech, but have not considered this law.

Opponents also say it creates serious chilling effects stifling legitimate First Amendment speech. For example, John Wiley & Sons changed their mind and decided not to publish a book by Andrew Huang about security flaws in the Xbox because of this law. After Huang tried to self-publish, his online store provider dropped support because of similar concerns. (The book is now being published by No Starch Press.)

Opponents also argue that the law might be read to give full control to copyright holders over what uses are and are not permitted, essentially eliminating fair use. For example, ebook readers protected by this law can prevent the user from copying short excerpts from the book, printing a couple pages, and having the computer read the book aloud—all of which are legal under copyright law, but this law could be expanded to prohibit building a tool to do what is otherwise legal. However, other legal scholars note that the law's emphasis on violations of preexisting rights of copyright holders ensures that the DMCA does not expand those rights. If the purpose of the activity is not to violate a preexisting right, the activity is not illegal. Fair use, the scholars say, would still be protected.