The DMCA and the Regulation of Scientific Research

Abstract

This Article analyzes the impact of the Digital Millennium Copyright Act (DMCA) on academic encryption research. In this Article, I argue that for both legal and practical reasons academic encryption researchers should be able to conduct and publish certain types of research without significant fear of liability under the DMCA. However, the DMCA will have a non-trivial impact on the conditions under which such research takes place, and this impact can be expected to have several undesirable effects. More broadly, this impact highlights the problematic way in which the DMCA regulates scientific research in furtherance of intellectual property rights. The Article concludes with a number of suggestions for mitigating some of these negative effects.

Who posts DeCSS and why?: A content analysis of Web sites posting DVD circumvention software

“…Opponents further charge that the circumvention device prohibitions will stifle professional and scientific communications about DRM-related tools such as encryption and watermarking (Grove, 2003;Lessig, 2002;Liu, 2003;Stallman, 2002), and that this chilling of speech will result in a decrease in innovation within the software industry (Felten, 2003;Samuelson & Scotchmer, 2002).…”

“…Some argue that computer code (including circumvention devices) is a form of speech protected by the First Amendment and, as such, should not be regulated by the government (Touretzky, 2001). Opponents further charge that the circumvention device prohibitions will stifle professional and scientific communications about DRM‐related tools such as encryption and watermarking (Grove, 2003; Lessig, 2002; Liu, 2003; Stallman, 2002), and that this chilling of speech will result in a decrease in innovation within the software industry (Felten, 2003; Samuelson & Scotchmer, 2002).…”

Ethics and governance for internet‐based conservation science research

“…Access to data may also be restricted through technical measures, such as digital rights management software. Legislation, including the Digital Millennium Copyright Act (DMCA) in the United States, and article 6 of the 2001 Information Society Directive in the EU (European Parliament & Council of the European Union 2001) prevent circumvention of technical measures such that even if a research exception to copyright applies, bypassing these measures is legally ambiguous or practically difficult (Liu 2003; Spinello 2017). Given the legal uncertainties and regional variations presented by intellectual property and contract law, researchers should seek expert advice where possible.…”