Ethics and the Digital Millennium Copyright Act

An issue of growing concern in the computer community is a relatively new law called the Digital Millennium Copyright Act. This law was enacted to protect copyright but is being abused by corporations to halt some of our rights.

In the United States, copyright is an attempt to protect and maximize resources available to everyone. Copyright protects an individual or corporations right to reproduce their own material, be it art, software programs, books, magazines, company logos, music or movies and gives them an incentive to make more materials available to the public and also make a profit. This copyright gives them exclusive legal right to reproduce these materials for a certain amount of time. Also some specific rights were given to public to protect their interests.

Of these rights, the first are the fair use laws. The fair use laws state that consumers can make unauthorized copies for several specific purposes. One such purpose would be, for example, quotes used in this paper taken from copyrighted material. Another in the case of software or music is the right to make a backup copy to protect your original investment. If you pay forty dollars for a newly released DVD movie, as with software, and you find your four year old pushing it across a dirty floor, the importance of a backup that�s under a dollar can immediately be seen. Another benefit of this is the ability to record an audio tape from a CD that you have purchased. Additionally �mix� cd�s of different artists to which you own the original works are also protected. Fair use also states that if you own material such as a DVD disc that could be utilized by either a stand-alone DVD player or a PC with a DVD ROM you have the right to choose which you will use. Circumvention of copy protection for legal backup purpose is not illegal under this law. For example, a program can be used to break copy protection on Dreamcast games so that they can be backed up.

Another right is the Right of First Sale. Once a person has purchased copyrighted material; the person may resell it as they please as long as they don�t make any unauthorized copies. An example of this is buying a CD and later selling it at a used CD store where another consumer could purchase it.

The last agreement made was that copyrights will expire. A person or organization will have control over who would reproduce the material for a limited time. After that the public may do whatever they wish with the material.

One of the largest oppositions that face the DMCA is that it makes no allowance for fair usage. The Recording Industry Association of America (the RIAA) says that you should watch your DVD on your home DVD player and not your PC. Here is how that portion of the DMCA reads:

`Sec. 1201. Circumvention of copyright protection systems (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that�� [circumvents a copy protection scheme]

Computer Scientists can no longer research software to ensure it provides adequate protection. When someone discovers a security hole or flaw in a program, the proof is presented in code. This code is prohibited from being published, written, or even spoken aloud since it may circumvent a copyright protection system. The RIAA recently released its new encryption scheme called the Secure Digital Music Initiative (SDMI) and even offered a reward for the person who could defeat it without degrading the audio quality of the music. A group of students at Princeton University led by Professor Edward Felton completed these challenges shortly after they were made public. The RIAA then threatened the Professor, the students, and the school with a lawsuit under the DMCA if their academic findings were released. This is the opposite of consumer protection. If a flaw exists; wield the DMCA and keep people in the dark regarding the possible problem. So rather than have an incentive to fix a potential problem; just use the DMCA to keep the person who finds the problem silenced Additionally, SDMI does not allow for backups or other legitimate copies as allowed under fair use. The same holds true for DVD discs. A program that allows Linux users to watch DVD movies on their PC called DeCSS is being challenged under the DMCA as the RIAA contends that only pirates would use this program and for the sole purpose of unauthorized duplication. What are they saying about the public?.

This is an approach that makes little sense. Forget about prosecuting people that illegally copy and distribute copyrighted material but rather make the tool they use illegal. If someone breaks into a car dealership window with a brick and steals a car, do we argue that the brick maker is at fault for the crime? Or the company that sold them the brick, are they to blame? It must be that the person who told the robber that a brick can break a window is at fault! This just does not make sense. Crowbars are designed primarily to force things open or apart but no one would ever dream to make them illegal. Just because a tool may be used to break a law doesn�t mean that it was created for such a purpose or that it has no legitimate uses.

This raises serious concerns of the constitutionality of such a law. Free speech says I can say what I please. Yet if I tell you of computer code which exposes a weakness, I could be held liable under the DMCA for you could reproduce the code and use it. An ethical individual would not sell an automobile which leaked gas. Obviously this is dangerous. At the same time if a flaw in an Internet program gave others the ability to remotely change, view or control parts of my PC, then it should not be sold. Under the DMCA however you could be censored or even sued for pointing this out.

The DMCA is currently being abused in the United States to censor free speech. On July 17, 2001 a Russian computer sciences student named Dmitry Sklyarov was arrested by the FBI on Adobe�s word for an alleged violation of the DMCA. Sklyarov delivered a speech in Las Vegas called: �eBook Security: Theory and Practice�. He discussed an application that, only if you had purchased the original, would allow you to gain access to the material without its protections. This is, again, legal under fair use. The book could then be useful for the blind, for backup purposes or readable on a system other than Windows. Adobe notified the FBI and had him arrested. Sklyarov was arrested for pointing out a flaw.

Another abuse of this law took place on August 31, 2001. On this date, a not for profit ISP called Envirolink was forced to take down two websites of the animal rights group Stop Huntingdon Animal Cruelty. A letter was sent to this ISP from Huntingdon Life Sciences, a British medical research firm, claming that their site had �infringing material� No proof or document of this was provided to the ISP. Under the DMCA to avoid potential legal liability, the ISP must remove the possibly infringing content. �If the client whose Web site has been shut down provides a counter-notification swearing under penalty of perjury that it believes the site not to be a copyright violation, then the site can be reinstated by the ISP, such as Envirolink, but not before 10 working days and no later than 14 working days have passed.� This waiting period is a 10-day trampling of the constitution. This law will allow large firms such as Huntingdon Life Sciences to attack poor, not for profit organizations like Stop Huntingdon Animal Cruelty in a civil court which has its own enormous costs.

In this search for what is left of ethics; you must ask, if this is unconstitutional, how is it a law? It is a law because groups such as the RIAA have backed political leaders to enact this law. The Supreme Court decides whether or not a law is unconstitutional. Knowing that this law has freedom of speech and fair usage problems the RIAA (and others that use the DMCA) would NEVER allow these civil cases to make it to a court of such high-level. It would be more suited to their interests to settle out of court and even, if necessary, (but not publicly) admit to the other party they were wrong. Because of this, the DMCA will stand indefinitely.

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i http://www.anti-dmca.org/faq_local.html
ii http://www.anti-dmca.org/faq_local.html
iii http://www.anti-dmca.org
iv http://politechbot.com/p-01946.html
v http://www.infoanarchy.org/?op=displaystory&sid=2000/12/16/25510/101
vi http://www.freesklyarov.org/
vii http://www.msnbc.com/news/607194.asp?0dm=C12PT&cp1=1
viii http://www.salon.com/tech/log/2001/08/31/dmca_animals/index.html