Copywrong?

A government report giving the Digital Millennium Copyright Act a passing grade is a disaster for the general public, say critics.

Topics: Copyright, Intellectual Property,

For computer geeks and civil libertarians, the Digital Millennium Copyright Act is one of the most despised laws of the land. But the 3-year-old law passed a major test on Wednesday: To the dismay of critics, the U.S. Copyright Office evaluated the effects of the DMCA without calling for a complete revision.

Specifically, the 200-page study judged whether the new Net-focused law violated two relevant sections of offline copyright law: the doctrine of “first sale,” or the right to resell or make personal copies of a copyrighted work without a publisher’s permission; as well as a copyright law that permits the owner of a computer program to make a backup copy.

The study does give critics some ammunition to work with. It asks legislators, for example, to clarify whether temporary copies are legal, and advises Congress to give users of digital content the right to make archival copies. But the report also rejects the argument that offline copyright law should apply to the digital world, calling the analogy “flawed and unconvincing.”

The study also refuses to address the energetic public outcry over the DMCA’s controversial anti-circumvention clause, which prohibits the creation and distribution of methods for getting around copyright controls. While it acknowledges that most of the people who criticized the law — at public hearings and via e-mail — “expressed general opposition to the prohibitions on circumvention of technological protection measures contained in [the anti-circumvention clause section 1201], and noted their concerns about the adverse impact that section 1201 may have on fair use and other copyright exceptions,” the Copyright Office, which falls under the authority of the Library of Congress, sidestepped public concern.



Just as the office’s previous report — focusing specifically on Section 1201 — concluded that public anti-circumvention concerns were focused too far out in the future to warrant immediate legislative action, Wednesday’s tome also argued against the call for reform. Even as hackers worldwide launch protests for a Russian programmer who was indicted for unlocking e-book security, and ISPs daily struggle with how to decide when Web sites violate the law, and a magazine publisher is in the middle of appealing an injunction that prohibits distribution of DVD-cracking code, the study’s writers argue that “the actual impact on consumers appears to be minimal.” Congress, the report declares, already dealt with the subject at length over a period of three years while crafting the law, and “the impact of section 1201 on fair use and other copyright exceptions is outside the scope of this Report.”

We asked several experts to comment on the significance of the study, and what it means for the future of the DMCA.

Siva Vaidhyanathan, author of “Copyrights and Copywrongs,” who testified at the Copyright Office’s DMCA hearings

I was hoping the Copyright Office would act more as an agent for the Library of Congress, the chief custodian of our information commons. After all, the Library of Congress is the Yellowstone and Yosemite of our cultural heritage. In that spirit, I wish the Copyright Office had taken more seriously the concerns of librarians, archivists and researchers.

Libraries could not exist without first sale. If they had to get permission or pay a fee every time they lent a copy of a book, they would have to stop lending. There would be no functional difference between a public library and a Barnes and Noble.

It’s no secret that some big publishers have been waging commercial and legislative war on libraries for some years now. These publishers see every use of interlibrary loan as a lost sale. And the DMCA is a big ICBM in that war. These publishers would like nothing better than to be able to dictate the terms of use in libraries. And by moving all their content to digital streams, encrypted, tethered to specific devices and controlled by restrictive contracts, they can effectively squeeze libraries to death.

Mark Lemley, Berkeley law professor who specializes in copyright law

It’s about what I expected. It would be nice to have a first sale equivalent in the digital environment. I wrote about this several years back; see my article “Dealing With Overlapping Copyrights on the Internet”. But I’m not surprised that the Copyright Office didn’t support it. I think [the suggested] legislative changes to make it clear that people can make backup copies of all forms of digital information, and that temporary copies made during streaming aren’t separately infringing, are both important changes.

Eben Moglen, Columbia University law professor, counsel to the Free Software Foundation

The Library report carefully summarizes the public debate it solicited, while equally carefully failing to respond to any of the real questions that debate raised. The report notes that content is being tied to specific devices for reading (licensed DVD players, proprietary e-book readers), and says that even within the incredibly narrow limits that they recognize as cause for concern — interference with their narrow definition of the first sale rule — this trend is cause for concern. But despite all the concern, of course, no legislation is presently necessary.

Later, after the problem has ceased to be of concern because it has become unchallengeably embedded in the technology of society, and the “campaign contributors” have achieved the control over culture that they bought congressmen in 1998 to achieve, the Library will presumably begin lamenting the situation it was the Library’s statutory responsibility to prevent.

It is highly significant that the report constitutes a smack in the face to all the professional librarians’ associations in the United States which, as the report avoids directly saying, uniformly backed the positions that the Library is rejecting. This report now positions the “Library of Congress” not as a library like other libraries, but as a shill for the “campaign contributors” whose bribery of legislators brought about the disgraceful statute with which this “Library,” alone among libraries, cannot find anything wrong.

The report does not note that the criminal penalties of the DMCA — enlisted in support of the very form of content-tying (e-books) about which the Library expresses concern — have now resulted in the arrest of a scholar [Dmitry Sklyarov] for explaining how one e-book encryption system works, in a technical paper based on Ph.D. research publicly presented. Presumably the Library does not regard the arrest of authors for disseminating academic information under the authority of this statute as a reason why any legislative change should be required.

Cary Sherman, senior executive vice president and general counsel of the Recording Industry Association of America.

We’re gratified that the Copyright Office has given us much of the guidance on these issues that we requested in our petitions to the Copyright Office concerning the licensing of musical works for subscription services.

The conclusions of the Copyright Office appear consistent with the general views we’ve expressed repeatedly over the years. We have long favored a simplified licensing system for music publishing in which a fair but single royalty payment is made for a single commercial transaction.

We have no view at this time on whether legislation would be the appropriate means of resolving these licensing issues. We have always preferred to negotiate business solutions in the marketplace. Indeed, we are hard at work right now to do just that with the music publishers.

Rich Taylor, spokesman for the Motion Picture Association of America

It looks to us like the copyright office has come to a proper conclusion. They seem to feel that there’s no need for legislative address of the first sale doctrine. We think that’s a proper read of the environment right now.

Frederick Weingarten, director of the American Library Association’s Office for Information Technology Policy

They rejected the points we were trying to make. They expressed sympathy for our cause, but they still don’t really get what technology is doing. They mention that we — and others — wanted an expansion of the first sale doctrine; but that’s precisely not what we want. We wanted to preserve the doctrine for digital works, not expand it. The fact that they think we want to grab more rights somehow misses the point. And they still think that these new technologies’ effects are far off in the dim future. They don’t understand that things are already changing and that there is real harm when a programmer faces 25 years for writing a program. That’s serious, real harm.

So we’re still concerned that an unholy triangle — the trend toward licensing and click-wrap agreements (where you click ‘I agree’ to a license to download an article or software); the technological measures of copyright protections; and the criminal sanctions in 1201 — are being used to close and shrink the rights of consumers. The problems are still there.

Fred von Lohmann, senior intellectual property attorney, Electronic Frontier Foundation

The report is very disappointing. The copyright industries have armies of lobbyists to defend their side of the copyright balance in Washington; the Copyright Office, as an arm of Congress, should be defending the public’s side of the balance. Instead, the Copyright Office issued a timid report that essentially asks the public to trust that copyright owners will wield the DMCA wisely, accommodating our first sale and backup needs. What an ironic notion on the eve of Dmitry Sklyarov’s arraignment.

Let’s catalog how copyright owners have used the DMCA so far: to silence a magazine publisher (2600 case); to threaten computer science professors (Prof. Ed Felten); and to jail programmers (Dmitry). And as for the public’s first sale and archiving rights, copyright owners are poised to debut a host of DRM [digital rights management] technologies that will dramatically curtail these rights (e.g., eBooks and several audio DRM technologies tether works to particular machines, thus defeating first sale). The writing’s on the wall — how much worse does it have to get before the Copyright Office recognizes that the DMCA has fundamentally, and unwisely, unbalanced the Copyright Act?

In fact, in the face of all this, the Copyright Office is recommending that first sale be narrowed because consumers may be able to sell “fair use” copies. Pro-Dmitry protesters have taken to the streets around the world, and the Copyright Office appears to think the real problem is that consumers may be giving videotapes of last week’s “Buffy the Vampire Slayer” to their friends.

And since when has the public been required to trust in the wisdom of the copyright industries to protect its side of the copyright balance? I thought that’s what Congress (and the Copyright Office) was for.

The Copyright Office has missed the forest for the trees. Two developments threaten to eliminate entirely the copyright balance in the digital world: the DMCA and the increasing use of “licensing agreements.” Copyright owners are using these two mechanisms as substitutes for copyright, in an effort to eliminate the public’s side of the copyright balance. Instead of taking a stand to protect the historic copyright balance crafted by Congress and the courts, the Copyright Office has firmly planted its head in the sand.

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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