The Digital Millennium Copyright Act and other Egregious Laws

Abstract

OVER THE last four years, we Americans have lost a considerable number of our constitutionally guaranteed And the sad part is, most people didn't even notice. Even sadder, perhaps, is the fact that these were given away by the very people we elected to the Congress. Just how bad is the situation? Consider this report from a September 2001 issue of the New York Times: Responding to the arrest July Las Vegas of Dmitri Sklyarov, a 26- year-old programmer from Moscow, the Russian government issued an alert last week to the nation's computer programmers, warning them of the long arm of a 1998 American copyright law. Mr. Sklyarov, who has been free on bail since August 6 and is staying California, was arrested after he spoke at a computer hackers' convention about his program that lets readers disable software for electronic books.1 Why, you might ask, would anyone want to disable the software embedded an Adobe Acrobat electronic book anyway? I describe just two of several reasons. First, you can't get text-to- speech computer software to read an encrypted book to a visually impaired person; second, the denies us the fair we have traditionally had to items we've lawfully purchased. To understand the lost, you have to start by understanding fair use. U.S. copyright law, as it has been interpreted by the courts over the years, has always tried to balance the of an author/copyright holder and the of a user/reader, called fair use rights. For example, if you buy a conventional book, you can lend it to a friend, give it to a library, quote sized excerpts from it, and even make an archival photocopy. Other traditional fair use rights include such things as videotaping television programs to time them, making compilation CD audiodiscs for use your car, transferring music you own to an MP3 player, creating parodies of all kinds, assembling video clips of news programs for social studies classes and using them for 10 days, and so on. The fair use rights of consumers are balanced copyright law by the first sale rights of copyright owners. Once the copyright owner receives payment for a copy of his or her work, the shift to the user. These counterbalancing get all out of balance when you introduce concepts like pay per read, pay per view, and digital encryption -- all of which reduce fair If you doubt the severity of such problems, surf on over to the Digital Future Coalition website (www.dfc.org) and take a look at the 40 or so prestigious organizations that have banded together to fight for our fair Members of the DFC include the American Library Association, the Modern Language Association, and the Consumer Federation of America, to name just a few. The Electronic Frontier Foundation website (www.eff.org) is one of the most up-to-date and informative of the various sites. The mess we are today started 1998 with the passage of the Digital Millennium Copyright Act (DMCA). Two provisions of this complicated bill have caused the most consternation. Title I of the DMCA establishes new prohibitions Title 17 of the U.S. Code: 1) prohibition on the circumvention of technological measures used by copyright owners to control access to protected works and 2) prohibition on manufacturing or otherwise trafficking in [including discussing] a device designed to circumvent a technological measure that controls access or that protects the of the copyright owner (copy controls). The second troublesome provision of the DMCA provides for a notice and take down procedure. If a content owner reasonably believes that an online service provider is misusing copyrighted material and notifies the provider according to statutory procedures, or if the provider becomes aware of an infringement any other way, then the provider must expeditiously remove the material or disable public access to it or face severe penalties. …