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Journal Journal: Research Paper on DMCA 5

I tried to submit this as a slashdot story for the main page, but it got rejected... anyway, for my English 101 class we had to do a research paper and I chose the topic of he DMCA (a favorite around here :). What follows is that paper:

Digital Millennium Copyright Act vs Fair Use

There is an old cliché that there is only one constant in life: everything changes. That has certainly been the case with copyright law in America. The first statute, passed in 1790, required so much red tape that few things were copyrighted. Authors had to register for a copyright, renew it, and supply a copyright notice with their material. Those requirements no longer apply under current copyright law. Copyright now happens automatically whenever a new work is created. In fact, this paper is copyrighted, even though it doesn't bear the traditional copyright symbol. It is true that not everything in this paper is original material. The words of other authors can be included without their explicate permission because of the fair use clause of the copyright law. Unfortunately, this clause, which applies to far more than simply research papers, is being indirectly threatened by the Digital Millennium Copyright Act.

But what exactly is fair use? The answer to that question is often debated. The concept of fair use has been around for more than a hundred years. Ironically, one of the first fair use cases posthumously involved George Washington, signer of the first copyright law. The court ruled in 1841 that the author of Life of Washington in the Form of an Autobiography had exceeded what it termed "justifiable use" of previously copyrighted material (Johnson 131). However, it wasn't until 1976 that fair use actually became a part of US copyright law as section 107. The intent at the time was not to provide new rights to the public nor to remove any existing rights, but instead to codify the status quo. The basic concept of fair use is to ensure that the author of a work does not have total control of the use of that work. This ensures that knowledge contained in one work can be built upon in another. This concept also applies to areas outside the academic world. The Supreme Court ruled in 1984 in a case between Sony and Universal Studios that the ability to record a television show for later viewing was protected under the fair use section of copyright law (Garfinkel 26). There are also rights that are almost taken for granted. For example, is there anything wrong with lending a book purchased from a local book store to a friend? Of course not; while that book does contain copyrighted material, the ability to loan it out or even sell it to a used book store is fair use. Where fair use gets sketchy is when it concerns making copies. Interestingly enough, every time a CD is played on a computer, a document is displayed, or magazine article is downloaded it involves storing a copy of this copyrighted material in the computers random access memory (RAM). This action is not covered under the fair use section of the 1976 copyright law.

Enter the Digital Millennium Copyright Act (DMCA) passed on October 28, 1998. This 70 page document not only updates the copyright law to account for the way computers function, it also adds new provisions for this digital information. Up until this time, copyright law focused on the relationship between authors and distributors virtually ignoring end users (Litman 111). As the Internet increased in size and popularity, it became easier for end users to exchange copyrighted material with each other. Distributors started looking for ways to control this activity and discovered encryption. However, anything that can be encrypted can be decrypted so the industries lobbied for Congress to include provisions making it illegal to break this encryption. This resulted in section 1201 which, according to the summary published by the U.S. Copyright Office, prohibits the "making or selling of devices or services that are used to circumvent [...] technological measure[s]" intended to prevent unauthorized access or copying of copyrighted material (3-4). Surprisingly enough, this provision only prohibits the act of circumvention on methods designed to prohibit unauthorized access. This section goes on to say "this distinction [between unauthorized access and copying] was employed to assure that the public will have the continued ability to make fair use of copyrighted works" (4). Unfortunately, these provisions intended to maintain fair use seem to be largely ignored.

Since the passing of the DMCA, there have been many cases where fair use is taking a back seat to the will of authors and distributors. When the DMCA was passed, many people felt it was giving too much control of copyrighted material to the authors at the expense of the consumer (Gillmor). While this doesn't seem to be that case in theory, in practice it appears to be true. Pamela Samuelson wrote an article originally appearing in Science magazine describing the plight of Edward Felton of Princeton Universitie's computer science department and a group of his collaborators. An organization calling themselves the Secure Digital Music Initiative had been working on a method to secure digital music using a form of watermarks. In September 2000, they issued a challenge offering a $10,000 reward for every broken watermark on the condition that information about how to break the watermarks would become the sole property of SDMI. Mr. Felton accepted the challenge, but decided not to accept the prize money and instead publish a paper describing their findings. Because they made no efforts to conceal their plans, SDMI contacted Mr. Felton with the support of the Recording Industry Association of America to persuade Mr. Felton to omit the details of the watermark's weakness. Because Mr. Felton and his group felt the details were an important part of their paper, they decided not to be persuaded. After many conversations on the subject and Mr. Felton's refusal to cooperate, SDMA and RIAA "made clear their intent to take action against the researchers [using the DMCA] unless they withdrew the paper" from the April 2001 conference where they intended to release their findings. Even though the group felt they were in the right, the threat of a law suit was enough to convince them to withdraw their paper (2028). This is extremely unfortunate as one of the main purposes of the original copyright law was to promote the expansion of knowledge. But, "when it comes to the business plans of those who publish books and music, academic freedom and free speech are apparently expendable" (Levy 54).

Because of these new anti-circumvention policies, some things were were perfectly legal before are now crimes. With traditional media, such as a book, it is perfectly legal to loan a legally obtained copy to a friend or sell it to a bookstore. In order to read it, you merely have to pick it up and open the cover. The DMCA, however, "for the first time purports to make it illegal for individual consumers to gain unauthorized access to copies of technologically protected works, even copies they own" (Litman 31). What does this mean? Let's say a person buys an electronic version of a book. Because this book is encrypted, it actually comes in three pieces. One is the file containing the actual book. Another is an application allowing the book to be viewed. The third is a digital key that tells the reader application that it is acceptable to open the book and display it's contents. If the owner of the book were to loose the digital key, the reader software will no longer open the book. Because the book is digitally encrypted, it is illegal under the DMCA to attempt to decrypt the book, even though it was legally obtained. But how is that possible? Certainly if the book were legally obtained it would be OK to open it using some software other than what it came with? Unfortunately, this is not the case.

In fact, a 26 year old Russian programmer named Dmitry Sklyarov wrote a program that bypassed the electronic provisions included in one popular format: Adobe's eBook. Mr. Sklyarov wrote this software while employed by ElcomSoft, a Russian company which sold the software to, among others, people in America. Because the DMCA is not a Russian law, his "research and software writing were perfectly legal in Russia" (Wallich 17). However, when Mr. Sklyarov came to America in July 2001 to present a paper at a conference, the FBI was waiting for him. He was arrested and jailed for almost two weeks before finally being given the opportunity to post $50,000 bail in San Jose, California. After more than a year of waiting, the case finally went to trial in December 2002. Mr. Sklyarov and ElcomSoft were acquitted on December 17, 2002 because the jury felt that while ElcomSoft's actions were illegal, they did not intend to break the law. This verdict despite the fact that "the software does have a legitimate use: restoring [...] 'fair uses'" (Levy 54).

Another high profile case involving apparent abuse of the DMCA involves DVD encryption. The vast majority of movies on DVD are stored in an encrypted format called Content Scrambling System (CSS). The routines needed to decrypt the information on these discs is embedded in commercial DVD players. DVD drives are also available for computers allowing movies to be viewed on the computer. However, the software containing the decryption routines are only available for Microsoft Windows or Apple's Macintosh. This makes it impossible for people running other operating systems, such as the freely available Linux to watch DVD on their computers. In 1999 a then anonymous programmer in Europe cracked the code used to encrypt DVDs. To the movie industries disappointment, he distributed this software, 215 lines of code he called DeCSS, across the Internet. It has since been discovered that the person who broke this code was a 15 year old Norwegian boy. This code was posted on the website for 2600 Magazine, prompting a lawsuit by Universal Studios. Despite the fact "Universal did not produce any evidence that DeCSS had every actually been used to make an infringing copy of the plantiffs' movies," in January 2000 the magazine was ordered by a trial judge to remove the code from their site (Samuelson 2028). It appears that the fact that it could be used for that purpose was enough. In an act resulting in making it even more difficult to block the distribution of the code, "two programmers at MIT reduced the [...] algorithm to just six lines" (Garfinkel 26). The six lines of code are extremely difficult to understand and don't contain any comments to help in understanding the it, but being only six lines makes it small enough that it has been published many times and even printed on a T-shirt.

When the Digital Millennium Copyright Act was passed in 1998 it may have had good intentions, but it was driven by an industry that has sought to have more control over its content for years. Universal tried to block the sale of VCRs in 1984, but failed. In 2000, they succeeded in court on the topic of DVDs because of additional regulations added by the DMCA. The same basic issue of when and where a person should be able to view copyrighted material was at stake both times. The entertainment industry is always on the lookout for ways to increase profit margins, even if it means lobbying Congress to create new laws. In the words of Dmitry Sklyarov, "'It's money. In the U.S. everything is related to money.'" (Levy 54).

Works Cited

Garfinkel, Simson. "The DVD Rebellion." Technology Review Jul/Aug 2001: 25-27.

Gillmor, Dan. "Digital Copyright Act comes back to haunt us." Knight Ridder/Tribune News Service. 23 Aug 2000. Gale Group Databases. Muskegon Community College Lib., Muskegon, MI. 18 Feb 2003. <>.

Johnson, Donald. Coypright Handbook. 2nd ed. New York: R. R. Bowker, 1982.

Levy, Steven. "Busted by the Copyright Cops." Newsweek 20 Aug 2001: 54.

Litman, Jessica. Digital Coypright. New York: Prometheus, 2001.

Samuelson, Pamela. "Anticircumvention Rules: Threat to Science." Science 14 Sep 2001: 2028-2031.

U.S. Copyright Office. "The Digital Millennium Copyright Act of 1998." 18 Feb 2003 <>.

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