[free-sklyarov] A-M$: Rick Boucher on the DMCA - http://news.com.com/2010-1078-825335.html (fwd)

[Jei]

http://news.com.com/2010-1078-825335.html

Time to rewrite the DMCA
By  Rick Boucher
January 29, 2002, 12:00 PM PT


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.

Unfortunately, those rights are now under attack.

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.

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