Time to rewrite the DMCA

The American public has traditionally enjoyed the ability to make convenient and incidental copies of copyrighted works without obtaining the prior consent of copyright owners. These traditional "fair use" rights are at the foundation of the receipt and use of information by the American people.

In 1997, motion picture studios, record producers, book publishers and other content owners came to Congress with a simple proposition: Give us a law that will stop pirates from circumventing technical protection measures used to safeguard copyrighted works, and we will release all sorts of exciting new content in digital formats.

At the time, libraries, universities, consumer electronics manufacturers, Internet portals and others warned that enactment of the broadly worded legislation would stifle new technology, would threaten access to information, and would move us inexorably towards a "pay per use" society. That day is now close at hand.

When Congress considered the content community's anti-circumvention proposal, I put forward a series of amendments intended to preserve the fair-use rights of consumers. My colleagues and I feared that broad application of the proposed new anti-circumvention law would threaten the viability of the fair-use doctrine in the digital age.

Unfortunately, as so often happens, Congress paid more attention to the loudest voices in the debate.

In writing the Digital Millennium Copyright Act (DMCA) of 1998, Congress made some important, but ultimately modest, changes to the original proposal. And we persuaded ourselves that we had achieved a rough balance of interests. But in the end, Congress agreed to a fundamentally flawed bill, which created the new crime of circumvention--a crime divorced from over a century and a half of respect for the fair-use rights of consumers.

The DMCA, as enacted, quite clearly tilted the balance in the Copyright Act toward complete protection and away from information availability.

In the three years since the law was enacted, we have not seen the promised new digital content. Instead, we have seen a rash of lawsuits; the imprisonment by U.S. authorities of a Russian computer programmer who had come to the United States to give a technical talk; and, more recently, the release of compact discs into the market that cannot be played in computers or even some CD players, and thus cannot be used to create custom compilations of consumers' favorite songs.

Some of the most serious lawsuits have implicated academic freedom and free speech. In response to an open challenge by the Secure Digital Music Initiative (SDMI), which invited the world to seek to defeat the watermarking technologies it had proposed for protecting digital audio content, Princeton University Professor Edward Felten and his colleagues defeated all of the proposed watermarks. The Felten team then sought to exercise their First Amendment rights by publishing the results of their scientific research and presenting the paper at a security conference.

Before he presented the paper, however, Felten received a threatening letter from the SDMI warning that doing so would subject him to liability under the DMCA. Felten then filed a lawsuit to uphold his First Amendment right to publish his research findings. The case has been dismissed, but the issue has not gone away, because the judge did not rule on the actual merits of his complaint.

Similarly, the publisher of 2600 magazine was sued by motion picture studios for providing a link to a Web site that contained the DeCSS code, which can be used to defeat the industry-standard DVD copy protection system enabling movies to be played on a Linux-based operating system. After losing at the trial level, the magazine publisher appealed, trying to preserve his right to link to sites without being held responsible for everything on those sites.

Unfortunately, the federal courts in these cases did not uphold the First Amendment rights of these publishers. In the 2600 case, the appellate court circumscribed traditionally accepted fair-use rights by declaring that these rights did not apply to the most convenient, highest-quality formats available to consumers. These examples of the content community successfully threatening and hauling into court individuals seeking to exercise traditional free speech rights demonstrate how the DMCA is flawed, and has tipped the copyright balance in a damaging way against traditional fair-use rights.

Given the breadth of the DMCA, the fair-use rights of the public at large also are at risk. From the college student who photocopies a page from a library book or prints an article from a newspaper's Web site for use in writing a report, to the newspaper reporter excerpting materials from a document for a story, to the typical television viewer who records a broadcast program for viewing at a later time, we all depend on the ability to make limited copies of copyrighted material without having to pay a fee or obtain prior approval of the copyright owner.

In fact, fair-use rights to obtain and use a wide array of information are essential to the exercise of First Amendment rights. The very vibrancy of our democracy is dependent upon the information availability and use facilitated by the fair-use doctrine.

Yet, efforts to exercise those rights increasingly are being threatened by section 1201 of the DMCA, which created the new crime of circumvention. Section 1201 (a)(1), for example, prohibits unauthorized access to a work by circumventing an effective technological protection measure used by a copyright owner to control access to a copyrighted work. Because the law does not limit its application to circumvention for the purpose of infringing a copyright, all types of traditionally accepted activities may be at risk. Any action of circumvention without the consent of the copyright owner is made criminal.

Consider the implications. A time may soon come when what is available for free on library shelves will only be available on a pay-per-use basis. It would be a simple matter for a copyright owner to impose a requirement that a small fee be paid each time a digital book or video documentary is accessed by a library patron. Even the student who wants even the most basic access to only a portion of the book to write a term paper would have to pay to avoid committing a crime.

The day is already here in which copyright owners use "click on" licenses to limit what purchasers of a copyrighted work may do with it. Some e-book licenses, for example, prohibit the reader from reading the book out loud. Some go so far as to make it a violation of the license to even criticize the contents of a work, let alone to make a copy of a paragraph or two.

To counter this emerging threat to traditionally accepted fair-use values, Congress must rewrite the law. We should begin by revising section 1201, which is at the heart of the Felten and 2600 magazine litigations, and which can be used to keep library patrons from copying even a paragraph from a book without making a separate payment.

The only conduct that should be declared criminal is circumvention for the purpose of infringing a copyright. That approach would provide adequate protection for copyright owners without abridging the legitimate fair-use rights of consumers, libraries, educators and other users.

For over 150 years, the fair-use doctrine has helped stimulate broad advances in scientific inquiry and education, and has advanced broad societal goals in countless other ways. In this emerging digital era, we need to return to first principles. We need to achieve the balance that should be at the heart of our efforts to promote the interests of copyright owners while respecting the rights of information consumers. We need to rewrite the law for the benefit of society as a whole before all access to information is irreversibly controlled. In short, we need to reaffirm fair use.

This is all just an attempt by the established media in the arts, communication, music, news services, newspapers and such, to keep from being replaced in toto by the internet and new technologies.

When the automobile was invented, big cities got in trouble with the street sweepers unions because the new technology was wiping out their cash cow... horse manure cleanup.

EVERY TIME a new technology emerges, the old lines, the old technologies it threatens, try to come up with ways to assure their survival.

© used to mean no copying for commercial use. You could not copy someone else's materials for resale, as the originator's income was from the sale of that material. Fair use, like we practice here on free republic, has come under attack. Running a copy of a tape off for your mom to listen to was legal, as long as you did not sell her or your friends, for that matter the tape...

The idea that digital could be copied EXACTLY was supposedly the excuse for initiating the digital copyright act. Instead it is being used to attack sites like freerepublic, and folks who remix their own cd's into "compilations" for themselves or family members.

In a word, the old exceptions for fair use and enjoyment, (which is a part of the fair use doctrine) is NOW being deconstructed. Freerepublic is under attack over "reconstruction of the meaning of "fair use" by the powerful media companies who fear it's content, and the reviews that are parcel to that "fair use" of their articles.

As soon as everyone recognised that informaton was the currency of the emerging economy... they had to do something to restrict its flow... would not wan the unwashed masses to have "free access" to the hard currency of the next millenia now would we.

YOU used to be legally able to copy a portion of several recordings, from your albums to tape, for personal or friendly enjoyment. It was the law and established precedent. This digital copyright law, is designed to undo what has been established case law in the usa, under the guise of digital materials being more accurately and easily reproduced than the analogue albums of yesteryear.

Really its all about greed, and control of information and charging folks for access to what they need, and often the very thing they THOUGHT they purchased to begin with.

Shame on the old line media moguls. Shame on them all.

"As soon as everyone recognised that informaton was the currency of the emerging economy... they had to do something to restrict its flow....Really its all about greed, and control of information and charging folks for access to what they need, and often the very thing they THOUGHT they purchased to begin with. Shame on the old line media moguls. Shame on them all."

I agree. Unfortunately, their greed goes beyond merely controlling America's media. It now extends to eliminating venues and activities they do not agree with or otherwise cannot profit from.

Furthermore, those who copyright and exploit media cannot control of profit off of open source software. It is most likely their next target. I already know of one FR poster whose solution to software problems was: "Kill the open source - things will get better immediately".

Before we leave this matter, I wish to comment on the theory inplied by you, Mr. Weems, when you claimed damage to your client. There has grown up in the minds of certian groups in this country the notion that, because a man or a corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have the right to come into court and ask that the clock of history be stopped, or turned back, for their private benefit. That is all.
--Robert A. Heinlein ("Life-Line")

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