By Erin Joyce
Five years from now, when VHS-format video tapes have gone the way of 8-Track tapes and researchers can’t access encrypted material on DVDs for fair use of copyrighted work, public outcry will force a narrowing of the Digital Millennium Copyright Act.
Meanwhile, nations such as Russia will step up their warnings for scientists to avoid forums in the United States where encryption technology is discussed and published in academic journals, lest they run afoul of the Act and find themselves in legal trouble.
So go the predictions and arguments from some free speech and First Amendment advocates who have been challenging the DMCA since 1998 when Congress passed the Act in response to exploding use of digital media and unfettered copying of digital works.
Intellectual property attorneys, however, call the opponents’ scenarios nonsense, a “Chicken Little” strategy by people who want to help legitimize freeloaders who pilfer digital media, thereby promoting the “Napsterization” of DVD-formatted movies for starters. (DVD stands for digital versatile disk.)
And now that the motion picture and recording industries have won two cases that challenged the constitutionality of the DMCA, legal experts say the entertainment industry can move forward with digital entertainment distribution strategies without fear of widespread copyright infringement.
Opponents of the DMCA also say they will move forward in their search for potential cases they hope will eventually get the DMCA before the Supreme Court for a narrowed interpretation of copyright protection currently in the Act.
Whether they’ll use the so-called 2600 case is under consideration. In that case, a federal appeals court on Nov. 28th dismissed a First Amendment challenge to the act by Eric Corley, also known as Emmanuel Goldstein, the publisher of the popular online hacker journal 2600.
Eight Hollywood studios had sued and won an injunction against Corley, which barred him from posting on his Web site a program called DeCSS that purported to crack the CSS (Content Scramble System) scheme the movie industry uses to wrap DVD-format movies and protect them from being copied.
In his appeal of the injunction, Corley argued that the DMCA oversteps limits on the duration of copyright protection and that the DMCA, as applied to his dissemination of the DeCSS program via links on the site, violates the First Amendment because computer code is speech entitled to full First Amendment protection.
In addition, Corley’s attorneys also argued that the DMCA violates the First Amendment by unduly obstructing the “fair use” of copyrighted materials.
The judges from the US 2nd Circuit Court of Appeals in New York tossed the case, citing the DMCA provision which states that “no person shall manufacture, import and offer to the public, provide or otherwise traffic in any technology, product, service, device component and part there that is designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.”
Charles Sims, a partner with the law firm Proskauer Rose, which helped represent the eight Hollywood studios against 2600 Enterprises, said what the case means is that the hackers have to stop violating copyright laws.
Sims called the free speech defense in the case questionable. “The analogy in this case is that you can teach in an engineering course how to build a gun, but you can’t provide somebody a gun,” he said.
“Eric Corley can say whatever he wants about the DMCA and Hollywood, but he can’t provide decryption utilities to people.”
Corley, Sims argues, has no interest in legitimate research into encryption technology or for educational purposes, which the Act provides for.
“He is a serial violator of the DMCA. And his only interest is in violating it. That’s why he was enjoined.”
Efforts to reach Corley were not successful by press time. David Atlas, an attorney with the law firm Frankfurt Garbus Kurnit Klein & Selz, which represented 2600 Enterprises in the case, said it’s not clear what his client will do now.
“I don’t think it’s the last word on this,” he added. “There are going to be many more cases, as the issues become more pertinent. In five years, when you find you can’t get access to materials you want for research, there’s going to be a real public outcry.”
Atlas argued that although the movie industry is portraying this as a huge victory, “if you look at the broader picture, the decision cuts into the concept of ‘fair use.’ Copyright has always been viewed as a limited monopoly. This case creates an absolute monopoly for the copyright holder.”
A press release about the case on the http://www.2600.com site said even the press coverage was missing the point.
“Nearly all of the pieces continue to make the mistake of defining this case as one involving DVD copying. As we’ve said countless times, this is not what it’s about at all. The DeCSS case is about content control which affects the ability of consumers to use technology that they have already purchased — in the case of DVDs, this includes skipping commercials, changing colors, using excerpts, or watching a DVD from a foreign country. All of these are forbidden on many DVDs as is playing a DVD on an alternative operating system of the consumer’s choice, such as Linux.”
Robin Gross, an intellectual property attorney with the Internet-related civil rights group Electronic Frontier Foundation, added: “Now, scientists will have to go beg Hollywood for permission if they want to study certain technologies.”
Her comments were related to the other recent court decision involving the DMCA, which involved Edward Felten of Princeton University. The computer scientist planned to publish research findings about a hole he and his research team found in the encryption technology that the entertainment industry has endorsed for distributing digital media.
He was threatened with a lawsuit by the Recording Industry Association of America over his plans to publish his findings, but the RIAA backed off. Felten and the EEF then brought a suit in an attempt to force the RIAA to explain how it had planned to apply the DMCA. A federal district court in Trenton, NJ, tossed the case on Nov. 28th, essentially saying there was none to hear.
“What’s happening is that there’s a tremendous chilling effect going on” since the DMCA was enacted, said Gross. She cited examples such as “wanting to view your DVD on a competing platform, or scientists that want to study the workings of a particular technology and publish papers about it, or programmers who want to be able to build competing products that interoperate with competing products.”
She said the EFF would like to see the DMCA anti-circumvention provision narrowed so that research or “fair use” of the technology isn’t stifled.
“Ed Felten can talk about security holes,” countered Sims, a recognized expert on copyright law. “He just can’t provide people with with decryption tools. This was a feigned case. It was a publicity stunt.”
Sims argued that the Felten lawsuit was part of the EFF’s “long-running PR campaign to raise money by hysterically claiming First Amendment rights are being violated.”
Felten and his researchers can discuss or publish research about encryption, he continued. “What they can’t do is provide devices or utilities” that exploit those holes. “The law deals with the provision of devices and utilities, not with education or lecturing or teaching.”
In the 2600 case, the court said the decision would serve notice on others that “the strong right arm of equity” may be brought to bear “in an age in which the excitement of ready access to untold quantities of information has blurred in some minds the fact that taking what is not yours and not freely offered to you is stealing.”
One thing is clear in the ongoing debate, however. With the recording industry about to launch online music subscription services in December and major studios scrambling to meet the public’s red-hot interest in DVD formats, the stakes over digital entertainment — and how the public uses it after purchasing it — are rising along with the voices in the debate over “fair use” of the works.
