Recent Uses of Software and the DMCA

Each is controversial. Anti-circumvention preventions have arguably brought about unintended consequences, including jeopardizing fair use and chilling free expression and scientific research, and CMI has alleged to have been defined so broadly as to include logos, which could theoretically allow a trademark holder to invoke DMCA protections. As another of the many examples, almost 17 years after the passage of the DMCA, there remains a dispute as to whether CMI is only protected if it involves the use of a “digital” technological measure, such as CMI embedded in the software, or whether it is also protected when used in an “analog” measure, such as the author manually affixing the author's name to the work. See also, Murphy v. Millennium Radio Grp., 650 F.3d 295 (3d Cir. 2011) (printed credit on image that is not part of an “automated copyright protection or management system” is CMI). Another source of disagreement is whether a “simple” copyright notice constitutes CMI within the meaning of the DMCA.

Copyright holders can ' and do ' respond that DRM is designed to comport with the animating purposes of the DMCA, which requires ingenuity and flexibility in creating new mechanisms to prevent infringement, and that the anti-circumvention provisions are replete with exceptions to the restrictions, including for reverse engineering, research activities, security investigations and use by non-profit organizations. So the argument goes, such exceptions ensure that free speech and innovation is not unduly burdened by the anti-circumvention rules that amply protect the copyright holder's interests.