U.S. law limits digital fair use
Source: The Sun - Baltimore, Md.
Publication date: 2001-07-23
Mike Himowitz Originally published Jul 23, 2001 at:
http://www.sunspot.net/news/bal-pl.himowitz23jul23.story IMAGINE THAT YOU'RE researching material for a speech or presentation and run across a magazine article with information you need. You copy the article on your office copy machine and take it home to work on the project.

The next morning, as you walk out the door, a couple of FBI agents greet you with handcuffs. They whisk you off to a jail 2,000 miles away, where you face trial on charges that could put you in the slammer for five years and cost you half a million dollars in fines.

"Hey," you say. "I didn't commit any crime. Doesn't federal law give me the right to make copies of articles for my own use?"

"You didn't read the fine print," the FBI agent growls. "You may be able to make a copy. But a new federal law says it's a crime to use the copying machine to do it. It's curtains for you, sonny."

Sound far-fetched? Well, it's true, as far as books, music, movies and other material published in digital form are concerned. It certainly didn't sound farfetched to a Dmitry Skylyarov, a 26-year-old Russian programmer who was snatched from a security conference in Las Vegas earlier this month by FBI agents acting on a complaint from Adobe Systems, Inc.

Skylyarov had just delivered a lecture on security flaws in the software that Adobe uses to encrypt books and other documents in its copy-protected Adobe eBook Reader format. His alleged crime:

distributing a program that allows legitimate purchasers (and, to be fair, anyone else) to make unprotected copies of those documents.

In particular, the Russian was charged with a violation of the Digital Millennium Copyright Act of 1998 (DMCA), a piece of one-sided legislative garbage that the music and publishing industries greased through Congress while the rest of the world was busy watching the Clinton-Lewinsky soap opera.

The law prohibits circumvention of encryption schemes or other devices that publishers use to keep people from accessing or making copies of any copyrighted digital document. No, it doesn't apply to copying machines and paper, but give the publishing industime for enough political contributions and it probably will.

The DMCA is a terrible law. First, it threatens to make federal felons out of those who exercise long-standing right to "fair use" of published material.

That doesn't mean we have the right to copy songs and distribute them over the Internet using Napster or some other music-trading system. But we do have the right to make reasonable, noncommercial use of books, records and music we've paid for.

Second, DCMA threatens our First Amendment rights by prohibiting us from discussing or publishing methods that can be used to circumvent copy protection.

The Recording Industry Association of America has already used the law as a threat to muzzle Princeton University professor Ed Felten, who took up the industry'sown challenge to crack a scheme it had developed to protect digital music.

Felten planned to discuss his findings at an academic conference, but backed off after getting a threatening letter from the music industry, telling him he would be violating the DMCA. In response, the Electronic Frontier Foundation, a public advocacy group, filed a suit on Felten's behalf in June, seeking to have the DMCA ruled unconstitutional.

The movie industry likewise used the DMCA to force 2600 magazine, a hacker's Web site, to remove copies of a program that Linux developers had written to decode DVD movies and play them on their computers (there was no Linux DVD software available at the time). In this case, the court went a step further - it not only stopped distribution of the the software, but also banned links to any site that did offer it.

This is more than another round in the ongoing battle between publishers, hackers and pirates. We're seeing a fundamental change in the balance of power between those who produce intellectual property and those who consume it.

That power has its basis in U.S. copyright law, which since 1790 has tried to balance society's general interest in the free flow of ideas against the right of authors, publishers, musicians and moviemakers to profit from their works.

(For this background, I'd like to credit my son, Ike, who devoted his senior thesis to intellectual property in the digital age).

Two hundred years of lawmaking and litigation have produced some generally accepted rules. One of them, known as the principle of first sale, states that if I buy a book or CD, I have the right to do anything I want with it.

For example, I can play a CD at home or take it in my car. I can give it away or sell it. By extension, I can even copy the songs onto my computer and play them for my own entertainment. What I can't do is make copies of the CD and or the songs on it and give them away or sell them to somebody else.

Likewise, I can read a book at home, in the office or on a beach. I can give it to you for your birthday. I can copy a few pages to take to the office for reference and cite small sections in an article. What I can't do is republish it under my own name, have Kinko's make copies for my friends.

Here's where the DMCA turns the law on its head. The same digital magic that lets us make digital copies of songs also gives music publishers the ability to create software that prevents anyone from making copies for any reason - or from using a copy you own in the way you're used to.
For example, eBooks can be designed so that they can only be read on one computer, or on one particular reading device. The book can be locked up so that I can't print a page or two, either. So if I buy an e-book and want to give it to you, I have to give you my $300 eBook Reader along with it.

This is also what the music publishers are doing with their Secure Digital Music Initiative. When they sell you music online, it will be copy protected so that you can only play it on your computer, or your particular player. It can even be locked up so that you can only play it a certain number of times, or for two weeks before it "expires." Do you smell big money here?

To make this work, however, they have to keep ahead of hackers who delight in busting copy-protection schemes. Remember, under previous copyright law, it was quite legal to "unprotect" a song or a book for your own use.

So they got Congress to pass DMCA, and now the FBI will do their dirty work. DCMA doesn't change your fundamental right to fair use, but it does make it illegal to use technical means to exercise it. Or to publish any discussion of how to go about doing it. What the law and the courts have given us for 200 years with one hand, DMCA takes away witih the other.

Eventually, the Supreme Court will have to decide which set of rules prevail, and whether the music industry can muzzle even legitimate researchers. In the meantime, there's one thing you can do, or not do.

Don't buy the copy-protected stuff they're peddling.

If you're going to pay the price for a book, buy it in paper, where you don't forfeit the right to dispose of it as you like. Or buy your music on CD and make your own digital "mixes."

The market might be a far more powerful force than the FBI.

-- ref: http://www.theregister.co.uk/content/55/20548.html
http://www.wired.com/news/politics/0,1283,45484,00.html
http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov

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