Copywrong?

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

By Damien Cave

Aug. 31, 2001 | 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.

Next page: The recording industry is "gratified" by what other critics call "a smack in the face"