I wrote the following as a persuasive essay for English class. It is meant to familiarize the reader to fair use laws, and some of the effects of the DMCA. I personally am a long time
music pirate, user of
DeCSS, and supporter of
Dimitry Sklyarov; so this essay is probably not terribly objective.
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Why The DMCA Should Is Taking Away Our Liberties
Fair use is defined by Section 107 of Title 17 of the US Copyright Act, and is lain out as the following:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors ("Title 17").
It is imperative that this clause be understood in full by the entirety of the US judicial system and legislature, because fair use is, in its purist form, is an extension of the inalienable first amendment right that we as a country value. However, in more recent history, there has come into existence a new form of mass media, the Internet, where one can copy complete documents, works of art, and music, in a matter of seconds. To counteract this growing egalitarian spread of ideas, the US legislature has created a new bill, borne of soft money contributions and corporate lobbyers in Washington to deprive US citizens of their essential right of fair use. This bill is called the Digital Millennium Copyright Act (DMCA), which restricts the rights of any user of information that has a digital aspect to it. The DMCA strips away the liberties granted by free speech, and must be reformed.
October 1, N'Sync released a CD containing a new form of copyright enforcement. Essentially, the CD will play nothing by garbage on a computer, but is supposed to play normally on an ordinary CD player. This CD has been released in America, released with a modified system in Germany, and unprotected in the United Kingdom (Fox). This technology has been in existence since last year, following the Napster trials. Back then, copyright protection had become a very big deal, despite record sales being up last year at the hay-day of Napster (Boehlert). A simple study of the numbers shows a very alarming trend in the sales of the Recording Industry Association of America (RIAA):
Just look at how many copies, combined, the top 10 sellers this year have sold: 22 million. Now compare that with the same combined sales for last year's biggest 10 hits through July: 36 million (Boehlert).
Napster, while not completely shut down, is very heavily regulated by the RIAA, and currently has plans to shift from the free sharing of music on the internet to a commercial system the RIAA could approve of; the RIAA currently has power over Napster via Section 502 of the DMCA. Most would say that since then Napster has been waning; simultaneously, record sales have been on the decline. Despite the obvious profits the online music community of Napster has yielded, the RIAA continues to push providers to focus on copyright protection. How can the RIAA do this, one might ask? Does it not go against fair use if copying is somehow disabled? The answer is yes, copyright protection most certainly flies the face of the Section 107 of Title 17 of the US Copyright Act. However, the DMCA amends the part about reproductions of in written copies and phonographs. One can easily see that without those identifications, the clause "fair use" is pointless. What is fair use if the means by which copies may be legitimately made are rendered unknown? Fair use, according to the DMCA, is no longer a right Americans can rely on. Not only that, but record companies have historically used fair use to justify price fixing (Dansby), which is in of itself a ludicrous proposal given that the right, albeit modified, is still guaranteed to all citizens of the US by the US Copyright Act. This price hike has no possible justification if there are no means of which to utilize fair use. However, since October 1, US consumers are going to see, thanks to legislation such as the DMCA, a lapse in liberties which have been always been characteristic of the first amendment of the constitution of which this nation was founded. The DMCA is the rotten core of the RIAA's misdeeds, and must be repealed.
Not only can the DMCA strip consumers of their rights to fair use, those who legally reverse engineer the protection technology so as to allow such CDs to be played on a computer would find themselves also in violation of the DMCA, but not because of copying copyright information, but decrypting and reproducing a copyrighted algorithm. The DMCA has this expressly to say on the topic of "Reverse Engineering":
REVERSE ENGINEERING- (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
Now, the entire difficulty of this clause, despite the DMCA going on further to make more elaborate destinctions of what is legal reverse engineering, is the entire idea that reverse engineering of things like encryption of CD algorithms may in fact constitute copyright fraud. Currently this debate is raging over the issue of DVD decryption, in a court case "DeCSS vs. The Motion Picture Association of America (MPAA)". CSS stands for "Content Scrambling System", an encryption which the Motion Picture Association of America has a legal copyright over. Or is it patent? The lines aren't clear; classically, algorithms and equations have not been patentable. The program DeCSS converts the CSS encrypted Data on a DVD to an mpeg (an easily readable media format). It utilizes an algorithm that 16 year old Norwegian Jon Johanson and his friends reversed engineered in 1999. Not only did they reverse engineer the system, but provided code for it's decryption, pushing the intricacies of the copyrighted algorithm into public knowledge. Soon after, the MPAA began to send cease and desist letters to owners of websites who had published data on the DeCSS program code. Jon Johanson was detained January 24, 2000 and questioned by Norwegian authorities for 7 hours regarding his knowledge of the DeCSS code and individuals involved; but thankfully, he has not in fact had any charges brought against him. Currently, the MPAA has filed suit again 72 individuals and websites claiming misappropraition of trade secrets (Openlaw). One such suit was against a t-shirt company, Copyleft, which had produced a shirt with the code contained on it's reverse. However, on August 8, 2000, Superior Court Judge William J. Elfin found that the company was well within the first amendment to post such information on a t-shirt (Manjoo). The very fact that the t-shirt could have ever been brought to court proves the one, fatal flaw in the DMCA. The very idea that the DMCA could strip away the right to free speech of any individual who may post such knowledge of the MPAA's algorithm regardless of context is ludicrous. On one site the DeCSS algorithm was even converted into a prime number, and again the MPAA has taken suit against the perpetrator (Carmody). The idea that something as abstract as a mathematical concept could be illegal damages yet another principle of US copyright law, that logic can't be copyrighted. But now, according to the DMCA even numbers can be copyrighted. Where does the law draw the distinction between logic and trade secrets? The line is not so clear. It would not be an issue, however, if the DMCA was simply repealed.
Supporters of the DMCA have often pointed out that it is their right to bring these suits and to protect their frivolous copyrights. This may be true in America; however, the DMCA doesn't apply to any country other then America, despite a clause much like the DMCA poised to being (or already been) passed by the European Union, Australia, Canada, Mexico, and Japan. In any case, it should not grant American companies the right to force their copyrights on the international community. However, now it seems they can. On July 17, in Los Vegas, Nevada 26 year old Russian Dmitry Sklyarov was detained by authorities according to a Department of Justice complaint by Adobe Systems. Dmitry Sklyarov had been attending an seminar in the United states discussing techniques he had used to create a program for Adobe's e-book. The program allowed the e-book to do a few things, foremost among them to translate encrypted documents into braille for suitable use by the blind. However, his cause has not gone unheard. Since his arrest thousands of people have taken to protesting Dmitry's capture. Only after he was released on August 6, did Dmitry realize the breadth of his support (Taylor). "I was really surprised and impressed," said Dmitri "by the scale of the action and the number of people involved in the protests. I'm not an IT superman. I'm just a programmer, like many others. It was unexpected by me that so many people would support a guy from another country that nobody heard about before (Sklyarov)." By their actions, it is obvious that the DMCA is in no way representative of the sentiment of the American people. It is unrepresentative of American philosophy, and as morally reprehensible as the slavery and redbaiting laws which have plagued American legislation in the past. It must be ended, but there is fear that it will go on.
There is a need for their to be copyright laws in America. People need to be assured that someone can not go and publish their private work without their consent, or make money off of something that isn't theirs. But the disruption of fair use, the copyright of logic, and the forcefull capture of foreigners are simply unacceptable consequences of copyright law. The DMCA may contain within it some valid statements, but in the overall picture the DMCA grants companies little security in exchange for the citizens essential freedom. And a country that would give up either, deserves neither freedom nor security.
Boehlert, Eric. "What's Wrong With the Music Biz?". July 19, 2001. October 4, 2001.
<http://www.salon.com/ent/music/feature/2001/07/19/industry_downturn/>
Carmody, Phil. "The world's first illegal prime number?". Sept 14, 2001. October 4, 2001.
<http://www.asdf.org/~fatphil/maths/illegal1.html>
Dansby, Andrew. "U.S. States Sue Labels Over Price Fixing". August 10, 2000. October 4, 2001.
<http://www.rollingstone.com/news/newsarticle.asp?afl=&nid=11469>
Fox, Barry. "N'Sync CD is copy protection 'experiment'". October 1, 2001. October 4, 2001.
<http://www.newscientist.com/news/news.jsp?id=ns99991367>
Manjoo, Farhad. "Court To Address DeCSS T-Shirt". August 2, 2000. October 4, 2001.
<http://www.wired.com/news/technology/0,1282,37941,00.html>
Openlaw DVD/DeCSS FAQ Team. "The Openlaw DVD/DeCSS Forum Frequently Asked Questions (FAQ)". May 3, 2000. October 3, 2001. <http://eon.law.harvard.edu/openlaw/DVD/dvd-discuss-faq.html>
Sklyarov, Dmitry. "Statement from Dmitry Sklyarov". August 17, 2001. October 3, 2001.
<http://www.freesklyarov.org/local/0817dmitrystatement.html>
Taylor, Phillip. "Cryptographer's arrest sparks fresh debate about copyright laws". October 2, 2001. <http://www.freedomforum.org/templates/document.asp?documentID=14535/>
The Digital Millennium Copyright Act. August 4, 1998. October 4, 2001
<http://www.cmcnyls.edu/USLAWS/hr2281eh.htm>
Title 17, Section 107 (US Copyright Bill). Unknown date of publication. October 4, 2001
<http://www4.law.cornell.edu/uscode/17/107.html>