The Digital Millennium Copyright Act (DMCA) was passed by Congress and signed into law more than a year ago, but its true impact is only beginning to be felt. Corporatism squared off brazenly against the geeks, and handily won Round One. If you're wondering where your Napster really went, read more below.
The Digital Millennium Copyright Act is an especially devious title for one of the most significant pieces of Internet legislation yet passed. If you're looking for insight into how corporatism and politics work together to control software and technology -- and to potentially stifle free speech and individual choice -- you can't do better. Nor will you find a more textbook-perfect example of dubious, perhaps even unconstitutional, Internet law.
This is how the struggle over who owns ideas, software and intellectual property on the Internet will be waged; Round One in the battle that is pitting corporatism against the geeks. They won.
The DMCA -- largely the fruit of massive lobbying by the entertainment industry, including companies like Time Warner, Disney and other giants of recording and movie industry -- was passed quietly 16 months ago by a normally acrimonious Congress, and immediately signed by the President. Despite the law's profound and far-reaching implications, Clinton's signing of the measure drew little media attention, online or off, and only in the last few months has its impact begun to be felt.
Central to the law is a clause making it illegal to thwart copyright protection methods through the use of software or hardware. Without that power, argued the lobbyists for record labels, traditional publishers and film studios, their industries would be run out of business by the newly empowered Net generation. This is a generation, mostly young, who've discovered that they could create their own culture on the Net, and get the music they wanted rather than pick only from the choices preselected for them by the music industry. And for free, no less. Thousands of artists who wouldn't have gotten through the record industry's artist-selection machine suddenly had channels to distribute their work and find new audiences. Music software is a powerful example of how the Net gave individuals -- especially ones far removed from corporate models of culture and creativity -- a chance to be seen and heard. And it gave music lovers a chance to hear them as well.
And although the law passed more than a year ago (despite opposition to DMCA by the Electronic Frontier Foundation and other online free-speech activists, the Act's proponents and their lawyers took their time strategizing about exactly how to enforce and implement it.
This year, the gloves came off -- and suddenly people at colleges all over the country are wondering what happened to their Napster sites. Despite what many schools are telling their students -- often that downloading music simply takes up too much bandwidth -- the real reason for their actions is the DCMA.
Pointedly high-profile lawsuits have been filed recently, as the entertainment industry takes the lead in the war against free culture and the spread of forums for artists to disseminate their work -- at least artists the industry doesn't control. The industry has obviously done its homework, studying how software really works and how information moves, and is using the Digital Millennial Copyright Act as its primary weapon against infringement by people using the Net and the Web.
As a result, with little political opposition or discussion, the DMCA is already beginning to redefine entertainment on the Net, and regain control of popular culture, as corporatists move against free music and movie users. As someone who's been writing about First Amendment issues for years, it's hard to imagine a piece of legislation with greater implications for free speech as well as corporate control of intellectual content. This legislation seems to have anti-trust implications as well: how could any law more actively discourage creativity and competition?
If there is a silver lining in the use of the DMCA to dominate entertainment, it's that day by day, the political issues become clearer. Even though many open source advocates see themselves as technologically centered, rather than politically, the DMCA pits the free software movement, squarely against the commercialist threat to the free nature of the Internet. The corporatists grasp what many young programmers don't: Open source is a powerful political idea, and it's antithetical to the way many modern corporations have always worked.
"The anti-circumvention clauses fundamentally change the balance of copyright," Alex Fowlier of the EFF told USA Today's Bruce Haring earlier this week. "Now we're not just talking about rights to the work, but about tying it to the system it is displayed on, or plays on, or is distributed by. That's one level deeper into control than copyright has been associated with." Tying the distribution, display or performance of a work to a system "affects the users in ways we can't even imagine," says Fowler. "It really hampers the future growth of the Internet." It doesn't do much for the present either.
One reason free music sources proliferated so rapidly was that they often piggy-backed on educational and other sites where music seekers congregated. College students could download music on their schools' sites, in part because the schools believed they were simply neutral, non-liable carriers of content. Since there was no Internet law governing content on Web sites, nobody knew if that was true or not. But it certainly isn't true anymore.
The music industry and its lawyers understood that colleges and universities are powerful channels for commercial music, places where artists, bands and even musical genres are discovered and become popular. They realized they didn't have to shut down every free music site on the Net -- those on instant messaging services like ICQ or AIM, for example -- in order to sharply curb the spread of free music. They could use the DMCA as a way to focus on a smaller number of sites, and on universities and colleges. For an industry that garnered $15 billion in revenues last year, the cost of that focused effort is chump change.
Rather than targeting music distributors or downloaders, they lobbied successfully to get a law passed that made it illegal to thwart copyright protection methods in software and hardware. Music industry lawyers then began notifying colleges and universities that they might be in violation of federal copyright protection laws if they tolerated the existence of Napster and other means of music dissemination. Free music users, accustomed for years to downloading what they wanted, were caught unawares.
The DMCA went a step further, in a legally ingenious way. The law decrees that Internet service providers won't be liable for copyright infringement by their users if the providers remove offending material once they're made aware of it. It's that provision that gains entertainment companies so many powerful new allies in their war against "pirates" -- recruiting, in effect, all the institutions and sites that allow content redistribution, and turning them into culture cops. If they block free music, they're off the hook legally. If they don't, they're liable.
Some colleges seem to think they have a far greater stake in avoiding lawsuits than they do in confronting the real issues involved -- like promoting free expression and diversity in culture. And college students are selective in political issues. There is, for example, a broad-based anti-sweatshop movement on many U.S. campuses, but no equivalently passionate and nationally-organized movement to keep culture free.
(Personal note: As an author who writes online and on paper, I am well aware of the complexity of intellectual content and copyright issues. Writing online, especially for this Web site, means relinquishing reprint, royalty and subsidiary rights that used to provide revenue to writers and artists. The work of me and other writers here and elsewhere on the Web is widely distributed, linked and even printed in paper form without permission or payment. But I've also come to believe that the free (open source, if you like) distribution of content -- even opinions -- offers creators new opportunities: broader audiences, greater impact, road-tested ideas, thus eventually, perhaps even more income.)
While the sweatshop issue (students accuse colleges as well as fashion retailers of buying merchandise produced by sweatshop labor) is perfectly valid, one could argue that the effort by corporatism to attack information software and control entertainment is ultimately of equal importance.
Before the DMCA, for example, a university -- or even a commercial Web site -- could look the other way as people presented, distributed and downloaded music. The legal issue was left between the record company and the so-called "pirates." But in recent months the DMCA has sparked legal actions like these:
- Jon Johansen, a 16-year-old Norwegian student who allegedly wrote software allowing DVDs to be played on Linux-based computers, was arrested at the behest of the Motion Picture Association of America. The MPAA claimed the code illegally circumvented DVD copy protection, and sent cease-and-desist orders to hundreds, perhaps thousands of Web sites, including this one, that had allegedly posted the source code or linked to it. The MPAA filed lawsuits against several sites, as well as charges against Johansen and other software developers, and announced it would pursue other offenders.
- RealNetworks obtained an injunction against a portion of software created by Streambox, designed to allow users to capture or record streaming media sent via Real's copy-protected format.
- The Recording Industry Association of America (RIAA) filed suit against Napster, which allows music seekers to trade song files directly from machine to machine without having to post them on the Net. Following the suit, Napster was removed from scores of college and other Web sites.
Tomorrow: The political issue is as simple as it is significant. Do individuals have the right to define their own cultural and entertainment experiences? Or must they depend on content and products sold by a handful of corporations?