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Fair Use in a Digital Age (Snve Hfr va n Qvtvgny Ntr)

By Julian Catchen <[e-mail]>
First part in a series.

In 1998, a new standard in intellectual property became law in the United States.  
The Digital Millennium Copyright Act (DMCA) has changed the way Americans interact 
with movies, music, software and other digital content.  In the short time it has 
been law, the act has put one Russian programmer in a U.S. jail, banned instructions 
for reading data formats from the Internet and prevented academics from presenting 
research to the public.  The following series of articles will serve to document 
the history of the DMCA and explore the chilling effect the slow degradation of fair 
use rights has had on free speech in this country.  

The idea that an artist or inventor (or more generally, any creator) has an innate 
right to their creations has been a long-held belief of Western society.  The Statute 
of Anne first codified the idea of "copyright"into English law in 1710.  The United 
States Constitution included an explicit right of a creator to their work in order "to 
promote the Progress of Science and useful Arts, by securing for limited Times to 
Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In 1790, the first U.S. copyright bill was passed by Congress protecting newly created 
books, maps and charts for a term of 14 years, renewable for an additional 14 years.  
Before 1900, prints, music, dramatic compositions and photographs would be protected 
as well.  Since then, the copyright laws have been updated more than a dozen times, 
adding new works and extending the length of a copyright term.  

However,  copyright law does not only deal with the protection of copyright holders.  
Authors and inventors of copyrighted works must provide fair use of their material to 
the public.  Thus, a public bargain is struck, whereby the author is rewarded with 
exclusive royalties for their work, but the public may fairly use it,  and after a 
limited amount of time, it enters the public domain, becoming part of a public commons, 
being owned by the society as a whole.

The concept of "fair use" was only a judicial doctrine until 1976 when it was codified 
into law.  But the foundation of the principle lies in a societal need for critical 
commentary, political dissension, news reporting, teaching and any number of activities 
that are protected by the First Amendment.  It was the fair use doctrine that allowed 
the Zapruder film to become public in order to explain one author's theory of the Kennedy 
assassination.  The fair use doctrine allows individuals to record television programs in 
order to watch them at a later time.  It was the fair use doctrine that gave Hustler 
magazine the right to produce caricatures of Jerry Falwell in its pages. Judge Lewis Kaplan, 
who has ruled in several significant fair use cases, referred to the fair use doctrine "as 
a safety valve that accommodates the exclusive rights conferred by copyright with the 
freedom of expression guaranteed by the First Amendment."

An important question to consider, though, is what happens to a society if that safety 
valve is slowly closed over a number of years and by a number of pieces of legislation?  
What do we lose as a society when our fair use rights and, hence, our First Amendment 
rights are abridged?

Consider the following:  in 1790, a copyright lasted for a term of 14 years, with the option 
to renew it for an additional 14 years.  In 1909, the renewal term was lengthened for a total 
possible copyright period of 56 years.  In 1976, the term was extended again to a single term 
lasting the life of the author plus 50 years, or, if a work-for-hire (owned by a corporation), 
the term was 75 years.  Finally, in 1998, Congress passed the Sunny Bono Copyright Term 
Extension Act, which again lengthened the copyright term to the life of the author plus 70 
years, or 95 years if a work-for-hire.

The lengthening of copyrights is not the only way in which copyrights have changed.  In the 
late 1980's a new technology emerged that allowed audio to be recorded in a digital format.  
Copyright holders feared that use of this Digital Audio Tape (DAT) technology would allow 
massive piracy to deprive them of royalties.  They were able to convince Congress to pass the 
1992 Audio Home Recording Act which mandated a three percent tax on all DAT tape sales to be 
distributed to copyright holders.  In addition, the act specified that a technology be employed 
in DAT recorders to prevent more than one generation of digital copying.  

This act represents a significant turn in copyright law, as it is the first to assume that 
all members of the public commons are essentially pirates and that a preemptive royalty tax 
is necessary to ensure fairness in the copyright bargain.   There is still a small balance 
in this act, however, for if the users agree only to make copies of copyrighted works for 
private, non-commercial use then they cannot be prosecuted for making those copies.

Even now, if you buy recordable "music" compact discs for use in your stand-alone CD 
duplicator or your personal computer, you pay a mandatory tax on every disc bought 
which is used to subsidize the recording industry. (Interestingly, this tax does not apply 
to "data" compact discs for use with only a computer as computers were excluded from the act.  
The discs are functionally identical.)

During the 1990s, three important international treaties would be negotiated that would 
also significantly affect U.S. copyright law.  Originating from the World Trade 
Organization (WTO), the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement 
made most tenants of U.S. copyright law international and created an enforcement mechanism 
whereby countries could bring action against one another through the WTO.  Coming from the 
World Intellectual Copyright Organization (WIPO), which is an arm of the United Nations, the 
Copyright Treaty (WCT) and the Performances and Phonograms Treaty (WPPT) updated international 
copyright law to handle many aspects of distribution over the Internet and included an important 
new aspect of copyright law to prevent access to copyrighted works.  In 1996, the WTO and WIPO, 
entered into an agreement to enforce the provisions of these treaties with WTO member nations.  
In effect, all three of these treaties (and with them, most aspects of U.S. copyright law) now
become internationally enforceable through the WTO.

Finally, in 1998 the Digital Millennium Copyright Act was passed into law in order to bring 
the United States into compliance with the WCT, the WPPT and the TRIPS treaties.  The DMCA 
creates a new type of copyright protection.  Section 1201(a)(1) of the act mandates: "No 
person shall circumvent a technological measure that effectively controls access to a work." 
It then goes on to specify in section 1201(2)(A) that "No person shall manufacture, import, 
offer to the public ... any technology ... that is primarily designed or produced for the 
purpose of circumventing a technological measure that effectively controls access to a work."  
The effect of these words is staggering.  The act, for the first time, provides that if the 
owner of a copyrighted work makes an attempt to "protect" their work with technological means, 
then it is illegal for any person to attempt to bypass that protection.  Since the act does 
not make any exceptions for fair use of a copyrighted work, any unauthorized attempt to 
access a work, even for traditional fair use purposes becomes illegal.  As professor 
Lawrence Lessig, of Stanford University, put it, "The DMCA outlaws technologies designed to 
circumvent other technologies that protect copyrighted material.  It is law protecting software 
code protecting copyright."  Some applications of this are in DVD movies, which are encrypted 
with the Content Scrambling System (CSS), and electronic books, which are protected in a variety 
of ways.

Further, the act does not specify what type of protection must be used, only that it be 
an "effective" technology.  However, "effective" is such a broad word, that companies 
have begun to use trivial software technologies to protect their works.  One of the 
technologies that is now in commercial use has been around since Roman times and was 
used to "protect" the title of this article above.  While copyright law guarantees 
access to copyrighted material for fair use, technological copyright protections do not 
have this responsibility. The DMCA makes no exception in these technologies to guarantee 
the rights afforded by copyright law.  Lastly, there are several narrow exceptions in 
the DMCA which are supposed to allow access for activities such as security research and 
reverse engineering for interoperability.  However, even though a person might be exempted 
from the anti-circumvention clause of the DMCA, it is still illegal to posses or distribute 
tools that allow access controls to be circumvented, and hence there would be no way to 
exercise that exception to the law. 

The Constitution of the United States created a federal mechanism to fuel the production of 
artistic works.  In doing so, a deal was struck between the holders of copyrights and the 
American public.  The public guarantees exclusive royalties to the creator for a limited time, 
and in return, the public receives fair use access to that work, and eventually, the work adds 
itself to the public commons where it can be utilized and built upon by future artists and 
inventors.  In practice, however, what has occurred is an extreme imbalance in the deal towards 
the protection of copyright holders.  Over two hundred years, the length of a copyright has 
been extended nearly five-fold.  The number of works protected along with their means of storage 
and transmission were increased dramatically.  The means to duplicate copyrighted works were 
wholly taxed, implicating an entire class of individuals as "pirates." Finally, the tools used 
to make copies and to facilitate fair use, were outlawed.  

These acts upset the balance between copyright holders and the public so profoundly that they 
essentially destroy the notion of fair use and with that the hope for a rich, public commons 
in the future.  

Because of the Sonny Bono Act, it will be twenty years before any copyrighted work enters into 
the public domain.  It is now illegal, in many cases for a blind individual to have an electronic 
book read aloud to them by their computer.  It is illegal to decode a DVD simply so that you may 
watch a legally purchased movie on a computer running the Linux operating system.   It is 
required that you pay a piracy tax on your recordable music CDs or DAT tapes before you can 
purchase them.

In the subsequent articles in this series, I will explore the effect the DMCA has had on society.  
We will look at the case of 2600 Magazine, which attempted to report about a computer program 
known as DeCSS, a tool that allows people to watch their legally purchased DVDs.  We will examine 
the case of Dimitry Sklyarov, a Russian programmer who was arrested in Nevada when he came to 
this country to give a lecture on the weaknesses of Adobe's eBook Reader software. We will also 
look at the case of Professor Edward Felton, of Princeton University, who attempted to present 
his research on digital watermarking to a security conference.  Finally, we will examine upcoming 
laws and take a look at the future of copyright law in the United States.
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University of Washington, Seattle    <http://www.cs.washington.edu>
        Application Fee:  $45
        Deadline:         December 31, 2001 
	Average for admitted students:
        GPA:              3.70
        GRE Verbel:       629
        GRE Analytical:   759
        GRE Quantitative: 778
        GRE Subject:      785
	Transcripts:      1

University of Maryland, College Park <http://www.cs.umd.edu>
        Application Fee:  $50
        Deadline:         January 15, 2002 
	Transcripts:      2
        Average for admitted students:
        GPA:              3.50
        GRE:              1950

Carnegie Mellon, Pittsburgh          <http://www.cs.cmu.edu>
	Application Fee:  $65
	Deadline:         January 5, 2002
	Transcripts:      1

University of Oregon, Eugene         <http://www.cs.uoregon.edu>
	Application Fee:  $50
	Deadline:         February 1, 2002
	GRE Verbel:       50%
        GRE Analytical:   65%
        GRE Quantitative: 65%
	Transcripts:      1 

Johns Hopkins University             <http://cs.jhu.edu/>
	Application Fee:  $0
	Deadline:         January 15, 2002
	Transcripts:	  1

Cornell University                   <http://www.cs.cornell.edu/>
	Application Fee:  $65
	Deadline:         January 1, 2002
	Transcripts:      1

University of California, Berkeley   <http://www.cs.berkeley.edu/>
	Application Fee:  $40
	GPA:              3.00
	Deadline:         December 15, 2001
	Transcripts:      1

University of Wisconsin, Madison     <http://www.cs.wisc.edu>
	Application Fee:  $45
	GPA:              3.00 (3.75 in CS courses)
	GRE Verbel:       600
	GRE Analytical:   600
	GRE Quantitative: 700
	GRE Subject:      700
	Deadline:         December 31, 2001 (December 1, 2001 for fellowships)
	Transcripts:      1 (+1 copy)

Michigan State University           <http://web.cse.msu.edu/>
	Application Fee:  $30
	Deadline:         December 28, 2001 (December 1, 2001 for fellowships)
	Transcripts:      2
	GPA:              3.2
	GRE:              2000 

New York University                 <http://cs.nyu.edu/csweb/Academic/Graduate/>
 	Application Fee:  $60
	GRE Analytical:   ~700
	GRE Quantitative: ~700
	Deadline:         January 4, 2002 
	Transcripts:      2

University of California, San Diego <http://www-cse.ucsd.edu/>
	Application Fee:   $42
	Preapplication Id: 3559
	Deadline:          January 7, 2002
	Transcripts:       1

Massachusetts Institute of Technology
	Application Fee:   $60
	Deadline:	   January 1, 2002
	Transcripts:       1


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