Enforcing the Digital Millennium Copyright Act Internationally:
Why Congress Shouldn't Lock in the Current DMCA By Approving the Current Version of the U.S.-Singapore Free Trade Agreement

On May 6, President Bush and Prime Minister Goh of Singapore signed the U.S.-Singapore Free Trade Agreement (the "FTA"). President Bush has termed the FTA "the first of its kind" - apparently meaning that it is the first free trade agreement between the United States and an Asian nation.

But the FTA is also the first of its kind in another sense, as well. It is the first international trade agreement to demand that the signatories implement anti-circumvention provisions similar to those of the hotly controversial Digital Millennium Copyright Act ("DMCA").

By pursuing anti-circumvention measures in a bilateral trade agreement, the Bush Administration had taken a new step in the progression by which the ownership and use of intellectual property have been increasingly politicized in recent years.

This step will have international, as well as domestic consequences: If Congress approves the FTA, it will not able to alter the DMCA without violating its obligations to Singapore.

The Digital Millennium Copyright Act

On October 28, 1998, the DMCA was signed into law, as an amendment to the Copyright Act. As a signatory to the World Intellectual Property Copyright Treaty ("WCT"), the U.S. was obligated to provide legal protection for authors "against the circumvention of effective technological measures . . . that restrict acts . . . which are not authorized by the authors concerned or permitted by law." However, the DMCA went much further than what the WCT required. In part for this reason, the DMCA became intensely controversial, as columns for this site by Anupam Chander and Laura Hodes have chronicled.

The DMCA prohibits the circumvention of technological measures that effectively control access to a copyrighted work. For instance, it prohibits the use of software whose only purpose is to thwart "lockware" or encryption meant to protect copyrighted material - such as DVDs, eBooks, or music.

The DMCA does contain some provisions exempting libraries and law enforcement from liability. It also offers limited protection to certain reverse engineering and encryption research activities. In addition, it explicitly states that its anti-circumvention provisions shall not affect substantive copyright rights and defenses to infringement, including fair use. Nevertheless, it sweeps far more broadly than did the prior copyright law that preceded it.

For one thing, despite its statement that fair use is preserved, it appears to prohibit circumventing access control measures even on public domain works. At least one decision construing the DMCA prohibits access control circumvention with the intent of "fair use," as opposed to copyright infringement.

Thus, while an English professor might photocopy a few pages of a book for her class without risking liability, a music professor will risk liability under the DMCA if she cracks the protections of an MP3 in order to sample a few seconds of it for discussion in her music class. Both are fair uses, but under the DMCA, the latter is apparently illegal.

Two bills pending in the House would resolve any ambiguity, making clear that circumvention of digital locks is legal for fair use or other noninfringing uses.

The Mistake of Fast-Tracking the FTA

The FTA's language regarding copyright circumvention technology goes no further than the DMCA's. However, its status as an international treaty adds a new facet to the debate, especially as the FTA does not contain any of the DMCA's exceptions to the scope of digital protections for copyrighted works.

Unfortunately, in Congress, at least, the debate on the FTA is likely to be limited. The FTA was negotiated by the President under the Trade Promotion Authority (TPA) - formerly called "Fast Track" authority - delegated to him by Congress. Accordingly, Congress may only consider the FTA as an entire package - voting up or down on it as is, rather than considering amendments.

In addition, expedited TPA procedures expressly limit floor debate, and require Congress to make its "up or down" vote on a rapid timetable - normally 90 days.

Fast-tracking this important intellectual property issue was a serious error. Trade Promotion Authority is already a politically questionable delegation of Congressional powers to the President. That delegation becomes even more questionable when the issues are as weighty and political as these are - political footballs like this should be subjected to Congressional back-and-forth, and not simply dropkicked by the President.

The FTA's DMCA-like provisions deserve to be subjected to democratic debate. Instead, closed-door trade negotiations have resulted in a package - one bereft of the Congressional balance struck in the DMCA between private rights and the public domain - submitted to Congress for a mere "thumbs up" or "thumbs down." That's railroading by the copyright industries, not democracy.

A Second Separation of Powers Problem Dogs the FTA

If the separation of powers problem with fast-tracking the FTA - allowing the Executive to usurp Congress's prerogative of amendment - wasn't sufficient, there's another separation of powers issue. This time, the problem stems from separation of powers between the Executive and the Judiciary.

Unless and until the FTA is enacted, courts will be able to narrow the DMCA's scope to respect free speech and the public domain. After the FTA, however, that will be impossible: it is not the judiciary's role to decide whether the United States should honor its treaties.

If Congress promises, in the FTA, to stick to a harsh version of the DMCA, the judiciary cannot renege on that promise. Again, this dynamic would be less troubling if we were dealing with straightforward legislation relating to ordinary products and goods - not legislation that implicates serious constitutional issues because it relates to intellectual property.

If the FTA is ratified, the judiciary will be out of options when it comes to ameliorating the effect of the fair-use-stifling DMCA. Congress will then have only one option: vote to override the treaty, a complex and wide-ranging trade agreement that regulates commerce between two nations.

The U.S.'s need for Singapore's cooperation in going after Al Qaeda only makes the issue that much more sensitive, and makes an overriding vote all the more unlikely. But absent such a vote, changes to the DMCA - for instance, to allow certain fair use exemptions - would likely violate the FTA, and thus will not be made by a conscientious Congress or judiciary.

In sum, the passage of the FTA would tie both the judiciary's and Congress's hands to protect consumers' long-established right to fair use. Unless Congress forces the President to go back to the drawing board and renegotiate the FTA to recognize fair use rights, both the FTA and the DMCA are likely to be set in stone for a long time to come - to the advantage of the copyright industries, and the detriment of free speech and fair use.