Illustration by David Plunkert

In 1998, U.S. entertainment companies persuaded Congress to make dramatic changes in its copyright code by passing the Digital Millennium Copyright Act. The DMCA gave copyright holders new rights to control the way people use copyrighted material and new protection for technologies designed to restrict access or copying. The movie and record companies argued they needed these new restrictions to fight increased piracy threats in the digital era.

In the eight years since the DMCA's passage, however, piracy has not decreased, and hurdles to lawful uses of media have risen. The Motion Picture Association (MPA), the international arm of the Motion Picture Association of America (MPAA), estimated worldwide losses because of piracy to be US $2.2 billion in 1997 and $3.5 billion annually in 2002, 2003, and 2004.

Meanwhile, entire consumer electronics categories have been wiped from retail shelves. If three or four years ago you didn't buy a digital video recorder that automatically skips commercials, you're out of luck; that feature is not in such products today. Television executives brought litigation that bankrupted the company offering DVRs with these user-friendly features, because skipping commercials potentially undermines their ability to sell commercial time.

You're likewise out of luck if you're looking to buy software that lets you copy a DVD onto your laptop's hard drive; it's no longer for sale, at least not in the United States. Even if you want to put the movie you bought onto a pocket-size video and game console, such as Sony's PlayStation Portable, which allows users to watch video stored on flash memory or a miniature hard drive, you can't legally do so, because you'd have to “rip,” or decode, it to make the transfer—and the studios claim that this action violates the DMCA. When you rip a CD, be it to an audiotape or an MP3 file, you're not breaking any laws. But to rip a DVD you need to somehow get around the encryption technology built into a standard disc, and since such circumvention is forbidden by the DMCA, if you rip a DVD, you are breaking a law. Under the DMCA, legality doesn't depend on how the copy will be used but rather on the means by which the digital content is copied.

Now, in an even more vexing situation, U.S. entertainment companies are successfully spreading the copyright code changes established by the DMCA around the world. Laws similar to the DMCA now exist in Japan, Australia, and much of Europe. At least nine additional countries, including Chile, Guatemala, and Singapore have also been pressured to enact DMCA-like laws as part of a devil's bargain with U.S. trade negotiators, who say the copyright change is necessary to secure free trade pacts with the United States that would govern all sorts of commerce. And in Europe, the body charged with defining the European digital television standards is mixing in content-protection obligations, responding yet again to pressure from major U.S. movie studios.

Emboldened by their successes, U.S. entertainment companies are pushing for another wave of even more restrictive legislation. “Broadcast flag” legislation could require that all consumer electronics devices recognize protected television broadcasts and potentially refuse to copy them; a so-called “radio flag” bill would prevent or restrict the manufacture of hard disk recorders for digital radio; and an “analog hole” closure would restrict the connections new digital devices can make with analog devices.

As the entertainment industry expands copyright law, the rising tide threatens to completely wash away many types of innovative gadgets.

Before the passage of the DMCA, entertainment and technology had, for the most part, peacefully coexisted. Laws addressing the use and misuse of copyrighted content targeted “bad actors” rather than complete classes of technology. For example, when songwriters in the 1920s sued radio stations for broadcasting live music performances without paying the songwriters, the lawyers did nothing to the companies that designed and built the broadcast transmitter towers. And in the early 1980s, when videocassette recorders (VCRs) made it possible for consumers to record television broadcasts, the U.S. Supreme Court, in its landmark Betamax case, ruled that the manufacturers of home video-recording devices were not liable for copyright infringement.

By the 1990s, U.S. entertainment companies wanted not just compensation but control. They went abroad to fight for in­ternational treaties that went beyond punishing copyright infringement. These new treaties endorsed copyright-protection technologies and prohibited the circumvention of these technological barriers. Then the companies brought the treaties back home to demand an update of the U.S. Copyright Act. And that brought about the DMCA.

The most controversial of the DMCA's additions to copyright made it a crime to circumvent “technological protection measures” deployed on copyrighted works. Under the DMCA, these measures mean any technology used to restrict or prevent copying of or access to a copyrighted work. Thus, the DMCA makes it illegal to bypass a password-control system and also prevents working around an encryption scheme that might stop someone from copying a song to an MP3 player. Other DMCA provisions outlaw the distribution of devices that bypass these digital locks.

Copyright is being turned from a limited-term incentive designed to encourage creative artists to a broadly scoped transfer of wealth from the public to the private realm. As the industries that generate copyrighted materials seek control over not only their works but also the devices on which we watch, listen to, and remix them, copyright law is turning into technology regulation.