[iwar] [fc:Rep.Boucher.OpEd:.Time.to.rewrite.the.DMCA]

From: Fred Cohen (fc@all.net)
Date: 2002-01-29 20:06:06
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Date: Tue, 29 Jan 2002 20:06:06 -0800 (PST)
Subject: [iwar] [fc:Rep.Boucher.OpEd:.Time.to.rewrite.the.DMCA]
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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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