User:Louis/The History of Section 1201 of the DMCA

Bruce Lehman is a former corporate copyright attorney turned government official. He subverted the democratic process by using international treaties to force through a law that Congress had previously rejected. That law is the main reason you can't repair your own stuff today.

Harvard Law professor William Fisher's CopyrightX lecture places Bruce Lehman's 1995 White Paper alongside the 1996 WIPO treaties and describes Lehman as a former copyright industry lobbyist.

What the software and entertainment industries wanted

Entertainment companies wanted stronger laws to protect their CDs and software from being copied. Bruce Lehman got appointed to run the US Patent Office under Clinton. They were frustrated that their previous methods could easily be cracked, usually by teenagers.

Bruce's history

Official portrait of Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks under President Clinton.

From 1983 until 1993, Lehman was a partner at the Washington D.C. law firm of Swidler & Berlin, where he represented individuals, companies, and trade associations in intellectual property rights. His clients were from the motion picture, telecommunications, pharmaceutical, computer software and broadcasting industries.

In the early '90s, President Clinton appointed Bruce Lehman as the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks.

So what did Lehman propose?

Title page of the 1995 White Paper, Intellectual Property and the National Information Infrastructure, the report of the Working Group on Intellectual Property Rights chaired by Bruce A. Lehman.

In 1995, Lehman's group published a 263-page document called the "White Paper," officially titled Intellectual Property and the National Information Infrastructure.

It sought to expand and strengthen copyright protections and anti-circumvention rules beyond what many consider their originally intended scope.

It does the following:

1. Ban the tools. The White Paper would make it illegal to

"import, manufacture or distribute any device ... the primary purpose or effect of which is to ... circumvent" a digital lock, and it would "only prohibit the manufacture of circumvention devices."

Notice what they did NOT do. They didn't ban you from opening the lock. They banned anyone from making and sharing the key. By going after the toolmakers, you never have to drag the little guy into court, because the little guy has nothing to pick the lock with.

The part where it is a crime to crack the lock yourself, on a thing you own, doing nothing wrong gets tacked on three years later in the 1998 DMCA.

2. Turn reading into copying.

"When a work is placed into a computer ... in RAM for more than a very brief period, a copy is made."

To him, loading a file, opening a page, just looking at the thing on your own screen, all of it makes a "copy" they get to control. This defines reading as copying.

3. Take it to the schoolyard.

The paper kicks off a "Copyright Awareness Campaign" and says copyright education "should not be a series of 'thou shall nots.'" Instead, it says, education "should carry a 'just say yes' message ... that works may be accessed and used, and that seeking permission is not an insurmountable barrier." It wants "core concepts ... introduced at the elementary school level," teaching kids "electronic citizenship," and it wants "model curricula" that "could then be disseminated to state school boards, private schools, libraries, community centers and other educational institutions."

They didn't just want a law, they wanted propaganda in kids' classrooms, down to elementary school. A national curriculum shipped to every school board and library in the country, teaching six-year-olds to "just say yes," to ask permission before they touch anything. A law professor named Jessica Litman watched this mess & gave it a better name: "just say yes to licensing."

The title and citation of Jessica Litman's law review article Copyright Noncompliance (or why we can't "just say yes" to licensing), 29 N.Y.U. J. Int'l L. & Pol. 237 (1997).

A passage from Litman's article: the White Paper would treat "every appearance of a work in the temporary memory of any computer" as an actionable copy, then teach the public to "just say yes" in elementary school.

Early criticism of the White Paper

It wasn't well-received at the time. Legal scholars like law professor Pamela Samuelson critiqued the White Paper from the beginning. Her January 1996 Wired article The Copyright Grab criticized the proposal as an erosion of fair use.

Pamela Samuelson's January 1996 Wired article The Copyright Grab, which argued the White Paper proposed a wholesale giveaway to the copyright industry at the public's expense.

Congress looked at it and said no

The White Paper got turned into a bill, the NII Copyright Protection Act of 1995. Congress looked at the proposal and basically said "nah, this is too extreme". They refused to pass it, which is the normal democratic process working as intended.

This is where Bruce Lehman comes in. Lehman shifts to WIPO(World Intellectual Property Organization) strategy.

Pamela Samuelson, writing in First Monday in 1996, on Lehman's pivot to the international stage after failing in Congress: it is "far more urgent to get copyright legislation and treaties right than to act fast on a flawed proposal."

The Copyright Office's Annual Report for fiscal year 1996 states clearly: "The 104th Congress adjourned without enacting either bill." The two bills, S. 1284, introduced by Sen. Orrin Hatch with Sen. Patrick Leahy on September 28, 1995, and the identical H.R. 2441 from Rep. Carlos Moorhead with Rep. Pat Schroeder, September 29, 1995, never even got reported out of committee.

Even the government's own copyright chief had a problem with it. Register of Copyrights Marybeth Peters, testifying before the House Subcommittee on Courts and Intellectual Property on November 15, 1995, called the anti-circumvention provision "somewhat overbroad," warned that "the uncertainties involved in the provision as drafted may chill developing markets," and recommended "that the language be narrowed."

Reps. Rick Boucher and Tom Campbell in the House and Sen. John Ashcroft in the Senate introduced rival bills to protect fair use, shield internet service providers, and narrow the anti-circumvention rules: the Digital Era Copyright Enhancement Act (H.R. 3048) and the Digital Copyright Clarification and Technology Education Act of 1997 (S. 1146). You don't write a whole bill to undo something you're fine with.

When Lehman took his agenda overseas to get it written into a treaty with WIPO, Rep. Rick Boucher warned the move "would be contrary to the prevailing congressional sentiment as reflected during our debates of the past year," as CNET reported in December 1996.

Rick Boucher also fought for fair use when the RIAA pushed for copy-protected music CDs. As CNET reported, Boucher said in a statement:

"The RIAA's response ... does little to relieve my concern that consumer fair-use protections are being threatened by what we now see is the intended widespread introduction into the U.S. of copy-protected CDs."

A March 2002 CNET report on Rep. Rick Boucher's warning that copy-protected CDs threatened consumers' fair-use right to copy their own discs.

Lehman did an end-run around Congress

Instead of accepting defeat, in 1996 Lehman went to Geneva, Switzerland, to an international organization called WIPO (World Intellectual Property Organization) and used his capacity as a US delegate to craft a treaty. With way less public attention and oversight, he got his anti-circumvention rules written into international copyright treaties. Two brand new international treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, were adopted on December 20, 1996.

He literally admitted later this was a "deliberate end-run around Congress," in his own words at a 2013 retrospective on the DMCA. He says out loud that the record label executives, the people pushing for these laws, are people who are usually doing drugs all night and not good at making new business models.

Bruce Lehman at the 2013 Santa Clara University DMCA retrospective, describing the WIPO treaty strategy as a deliberate end-run around Congress.

The DMCA passed the same law Congress already rejected

Lehman came back to Congress with the treaty. He basically said, to paraphrase "Hey Congress, we signed this treaty. Now you HAVE to pass these laws or we'll be breaking our international obligations." Congress felt pressured and passed the DMCA in 1998, the same law they had previously rejected!

On October 28, 1998, Clinton signs the DMCA and the anti-circumvention rules become Section 1201. New law: first copyright offense, up to 5 years in prison, $500,000 in fines. Second offense, double that.

Section 1201 makes bypassing a digital lock illegal, and a federal crime when you do it for commercial gain, even on something you own.

• 
  Title page of the U.S. Copyright Office's December 1998 DMCA Summary, recording the October 28, 1998 signing.
• 
  The remedies page: a first criminal violation of section 1201 carries up to a $500,000 fine and five years' imprisonment, doubling to $1,000,000 and ten years for a subsequent offense.

How this affected people after its passing

Dmitry Sklyarov

An account of the August 28, 2001 grand jury indictment that charged Dmitry Sklyarov and ElcomSoft with five DMCA-related counts.

In July 2001, Dmitry Sklyarov was a 27-year-old Russian programmer working for ElcomSoft, who went to Las Vegas to speak at DEF CON about weaknesses in Adobe's eBook security. He was arrested by the FBI on July 16, 2001 and was the first person ever criminally charged under the DMCA. Dmitry was held in jail for three weeks, then released on bail of $50,000 on the condition that he remained in Northern California. The charges against him were eventually dropped, and in 2002 a jury acquitted ElcomSoft on all counts because prosecutors couldn't prove anyone broke the law willfully. The very first criminal case under the DMCA was a loss for the government, which tells you the law can be beaten.

John Deere

John Deere told the government that farmers don't own their tractors. In 2015, in its own words to the Copyright Office:

A vehicle owner does not acquire copyrights for software in the vehicle, and cannot properly be considered an "owner" of the vehicle software.

The Copyright Office granted a repair exemption anyway, over Deere's objection, and Deere responded by immediately rewriting its End User License Agreement.

The EULA uses copyright law and DMCA anti-circumvention language to prevent farmers from accessing, modifying, or reverse engineering the software running their own tractors, which effectively locks them out of independent repair, since most repairs of modern equipment require interacting with that software.

In January 2025, the FTC, joined by two state attorneys general, Illinois and Minnesota, sued Deere over repair restrictions. A separate private class action ended in a $99 million settlement that received preliminary court approval in May 2026.

DMCA 1201 now affects everything

Section 1201 now affects more than just tractors. It affects your phone, printer, baby monitor, car, hospital's MRI machine, coffee machine, and more. State right-to-repair laws can't override this federal law.

After all that, Bruce Lehman admits it didn't work out

On March 23, 2007, Bruce Lehman shows up at the "Musical Myopia, Digital Dystopia" conference at McGill University in Montreal, Canada, and admits 1201 doesn't work.

Bruce Lehman at the March 23, 2007 "Musical Myopia, Digital Dystopia" conference at McGill University, conceding the Clinton-era copyright policies did not work out very well.

He blames the music industry itself more than the policy. He argues that if the major labels had been developing online distribution models back in 1994 when the work was being done, and if they had engaged seriously with early internet players like AOL, the outcome might have been different. Their culture was focused on talent development and understanding public taste, but they had nobody trying to come up with proper business models, which is why they had to focus on ways to clamp down the old one, even if it wasn't working. They completely missed the boat on distribution and technology.

His direct admission of failure, transcribed by law professor Michael Geist, who witnessed the remarks: "our Clinton administration policies didn't work out very well," and "our attempts at copyright control have not been successful."