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Three years after its passage, the Digital Millennium Copyright Act is still making people wonder if they are getting the right kind of protection for the right reasons.

The intent was not to turn digital technology users into criminals for making backup copies of MP3 files. In fact, one of the DMCA's sponsors, Representative Rick Boucher (D-Virginia), wants to amend the law to balance the "fair use" rights of consumers with the protections afforded copyright holders.

"What the DMCA does is try to outlaw burglar tools," Boucher says. "Hammers and saws and wrenches have many legitimate purposes and should not be outlawed. The same should be said about advanced technology."

The DMCA prohibits the manufacture and distribution of devices that circumvent electronic "locks" on digital programs. The idea of stopping thieves from stealing copyrighted material is laudable, but Boucher says the law tramples on consumer rights.

When Is It Criminal?

"My proposal will be that the only time circumvention is criminal is when it is for the purpose of infringing copyright," Boucher says. "When it is for exercising fair use rights or other benign purposes, then acts of circumvention aren't involved."

Making personal copies of legitimately purchased programming (digital music, for example) to use on portable devices or to play on multiple PCs or at different locations would fall into the "fair use" category. But the act of making those copies can be thwarted by manufacturers who scramble their recordings or otherwise impede the ability of purchasers to make clean copies. And they're starting to do just that.

Developing and using technology to circumvent those electronic security measures is prohibited under the law, no matter how that technology may be used.

Producers of DVD movies and videotapes use anticopying technology to prevent duplication of their material; apparently some record companies have started to do the same thing with CDs, according to an Associated Press report.

New Anticopying Measures

Five major record labels have quietly begun using technology that stymies attempts to copy songs from CDs onto blank discs and computer hard drives, the AP has reported. The movie industry is looking into implementing such restrictions as well.

Under "fair use" provisions of U.S. laws, consumers are allowed to make personal copies of recordings they have purchased. With the advent of new technology--like CD-RW drives, DVD-burning software, and file-sharing sites like Napster--the music industry is concerned that wholesale rip-offs could seriously damage their business.

The Recording Industry Association of America has been vocal in its support of the DMCA after it forced a court battle that drove Napster into the ground.

The RIAA's efforts to protect copyrights have been carried out against a backdrop of declining sales of recorded music. In a 12-month period ending in June, the association says the value of all music product shipments decreased 4.4 percent, falling from $6.2 billion to $5.9 billion. Some fear similar, or worse, declines in other media without strict enforcement of the DMCA.

Feds Target Russian Programmer

Under the DMCA, federal prosecutors are pressing criminal charges against a Russian programmer accused of trafficking and conspiring to traffic a copyright circumvention device. Dmitry Sklyarov was indicted by a federal grand jury on Tuesday and was formally arraigned this week in San Jose.

"Now, I think that Mr. Sklyarov's case shines a very bright light on the shortcomings of the DMCA," Boucher says. "The United States is the only country in the world, to my knowledge, that would punish under its criminal laws a person who develops software that can aid people in exercising fair use rights, simply because the software could also be used for copyright infringement."

In addition, two civil cases involving DMCA are moving through the U.S. court system. In one, Professor Edward Felten of Princeton University is challenging suppression of his technical research. In another, a hacker publication is defending its publication of code that circumvents copy protection.

The Association for Computing Machinery, an advocacy group representing more than 80,000 computer scientists, engineers, and educators, has been a strong critic of the law.

"We believe the threat of litigation under the DMCA will have a profound chilling effect on analysis, research, and publication," says John White, executive director of the ACM, which has filed an informational brief with the court that is hearing the suit brought by Felten.

That sentiment is echoed by the Electronic Frontier Foundation, a digital civil liberties group that is closely following the cases and has organized protests on Sklyarov's behalf in several cities.

Is Copying Just Wrong?

"The problem is the fundamental philosophical principal that somehow copying is wrong and should be prohibited both by laws and technology," says Robin Gross, EFF staff attorney.

Technological advances will continue, and so will efforts to investigate, understand, and overcome them, she says.

"There is no putting the genie back in the bottle," Gross says. "We can pass all the laws we want and pass technological restrictions, which will eventually be cracked."

Gross, who is helping Boucher draft his proposed legislation, believes the DMCA's restrictive provisions against circumvention will ultimately have to be loosened by a higher court.

"We have seen this battle before," she says. "The Supreme Court has had to come to the public's rescue before and this issue without doubt will end up in the Supreme Court."

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