Page 119 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 4 Formulating a Non-commercial UGC Access Levy Scheme
An Intermediary-oriented Approach

5) Criminal penalties
The access control right has frequently been criticised for its chilling effect, imposing
criminal liability, on new technology developers. Although 17 U.S.C. §1201(a)(1) has
usually been deployed to enjoin circumvention, this clause has been used several times to
incarcerate individuals.
For instance, in US v. Elcom, Dmitry Sklyarov, a Russian programmer employed by the
Russian company ElcomSoft, was arrested by the FBI and jailed during his visit to the US on
90
16 July 2001. Sklyarov was accused of programming and offering the public ElcomSoft's
Advanced eBook Processor software, which could circumvent Adobe’s technological
91
protection measures embodied in its eBook file format. Sklyarov was released twenty
days later on a US$50,000 bond and was allowed to return to Russia at the end of 2001.
92
The chilling effects of the anti-circumvention clause may delay the repair of security flaws
and hinder technological innovation. For example, a Dutch cryptographer and security
systems analyst named Niels Ferguson found a security flaw in a video encryption system
93
when he travelled to the US, but refused to publish his finding for fear of being jailed.
In the context of UGC creation, imprisoning a UGC creator, whose use is usually for non-
commercial purposes without conflicting with the copyright owner’s normal exploitation
of the copyrighted work, not only stifles UGC creation but also fosters disrespect for and
94
disobedience of the law.
Criminal penalties and the lack of statutory limitations are two sides of the same coin.
By requiring UGC platforms to remunerate copyright owners in exchange for decryption
keys to access-controlled works, the proposed levy scheme preserves the non-commercial
95
UGC creators’ access to copyrighted works, and alleviates concerns over the chilling effects
of criminal penalties.

4.3.2 The uncertainty of the anti-device provision

The DMCA, 17 U.S.C. §1201(a)(1), regulates the act of circumventing access controls
and 17 U.S.C. §1201(a)(2) addresses the manufacturing or trafficking of devices that are
‘primarily designed or produced for the purpose of circumventing’ access controls. One
criticism has been that the anti-circumvention clause under the DMCA has resulted in

90 United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002).
91 Ibid.
92 Ibid.
93 Niels Ferguson, ‘Censorship in Action: Why I Don’t Publish My HDCP Results’ (15 August 2001) <http://www.macfergus.
com/niels/dmca/cia.html> accessed 2 February 2019.
94 Tom R Tyler, Why People Obey the Law (Princeton University Press 2006) 5; Lessig, Remix (n 2) 15; Section 4.4 has detailed
discussion of the noncommerciality of UGC creation; According to the survey (Questions 13 and 27 in Appendix 1), 89.32%
of the UGC creators have never received monetary benefits from their UGC creation ((240+36)/(265+44)=89.32%).
95 Decryption key is a piece of information (a parameter) that can transform ciphertext into plaintext. Wikipedia, Key
(cryptography) <https://en.wikipedia.org/wiki/Key_(cryptography)> accessed 15 July 2019.

• 105 •