Copyright law for the digital age is intolerably skewed

Poorly laid plans go astray
Japan Times, Mar. 13, 2003
http://www.japantimes.co.jp/
By TIM ROMERO

Let’s admit it — we made a mistake. It seemed like a good idea at the time, but we screwed up. It’s time to make things right and repeal the Digital Millennium Copyright Act.

Back in 1998 the entertainment industry was scared, and who could blame them. Not only was the Internet threatening to undercut their lucrative distribution business, but illegal swapping of their content was becoming common. The industry claimed they needed breathing room. They told us they wanted to sell their huge catalog of music and movies on the Internet, but couldn’t do it in that wild-West environment. The enforcement of copyright laws just needed to be strengthened a little.

The DMCA was passed with those concerns in mind. Most significantly, it prohibited the creation or distribution of technology that enabled unauthorized access to copyrighted material — even if the creators themselves did not violate copyright laws.

In our haste, however, we forgot that unlike patents and trademarks, almost everything falls under copyright law. As soon as you create a composition of any kind you instantly own the copyright. You don’t have to register your new work or even show it to anyone. It’s yours. Normally that’s good, but that is what caused the DMCA to backfire.

Questionable actions

In March 2001, Princeton University’s Edward Felten had analyzed the file-encryption schemes favored by the recording industry, and planed to present his findings at a cryptography conference. Felten was scathing in his criticism of the simplicity and ineffectualness of the encryption, and his lecture was eagerly anticipated. Unfortunately, before he could present the paper he, his employer and the conference organizers were all threatened with lawsuits under the DMCA. It seems that publicly discussing the weaknesses of this encryption could help others gain access to the copyrighted material it protected. The paper was pulled.

In March 2002, the Church of Scientology used the DMCA to pressure Google and other search engines to remove links to sites critical of the church. Scientology claimed that these sites contained copyrighted material and that Google was helping to provide people with access to them. The DMCA is structured such that Google faced a huge legal liability if the links were not removed immediately.

In November 2002, Wal-Mart, Target, Staples and several other big name retailers used the DMCA to threaten several comparison-shopping sites who discovered and published upcoming Thanksgiving Day sale prices. The rationale was that since the sale prices had been created by these companies, they were copyrighted, and the Web sites had not been given authorization to give users access to them. The information was pulled from the sites.

Just this month, Lexmark won an injunction against printer-parts manufacturer Static Control Components. The problem for Lexmark was that this company manufactured a chip that enabled third parties to produce low-cost printer cartridges that worked with Lexmark printers hurting their business. Lexmark argued that the chip could be used to provide unauthorized access to the copyrighted software on their printers. Of course, no copyright violation has actually occurred. Customers who purchase Lexmark printers clearly have the right to use those printers to print documents. Theoretically, however, the chip could be used to provide such unauthorized access if an “unauthorized party” ever came into possession of a Lexmark printer.

Predictable results

I’m sure you see the pattern here. The DMCA is used by large organizations to shut down individuals or small companies doing anything they don’t like. There have, in fact, been few actual lawsuits. The DMCA is used primarily to threaten. Since the law is weighted overwhelmingly in favor of the copyright holder, defending oneself against it is extremely expensive and risky.

Most notable perhaps, is what the DMCA has not achieved. The entertainment industry has spent the last five years eliminating potential competition, and the easy, inexpensive and widespread availability of content we were promised is nowhere to be found.
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