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October 29, 2001 | Two high-profile stories in 2001 drew public attention to a recent, subtle, and potentially dangerous United States federal law. A Russian programmer, after giving a lecture about defeating a proprietary encryption strategy, was arrested by FBI agents and held solely under the auspices of the 1998 Digital Millenium Copyright Act (DMCA; H.R. 2281). During the same season, a Princeton University computer science professor was intimidated into not giving an academic paper, also on defeating encryption. The rationale was, once again, the DMCA.1 A series of protests and print attacks followed, pitting hackers against the hitherto respected Adobe Corporation, and librarians against the Librarian of Congress. The DMCA's legal teeth have been bared, and worse may come. Although the Act offers useful tools for intellectual property (IP) holders to protect and enjoy the results of the work, the DMCA also establishes a series of principles that block, restrict, and enjoin punishment of many hitherto accepted acts. Aside from endangering hackers, the Act threatens legitimate computer programmers, educators, and librarians, threatening to regress the public enjoyment of digital materials to pre-Web levels.

Before analyzing the DMCA's effects on IP and fair use, we should rehearse the establishment of these concepts. "Fair use" derives from a section of Title 17, a 1976 American copyright law. That code arraigns all usage rights exclusively to the intellectual property's holder, including reproduction, creating "derivative works based upon the copyrighted work," distribution, performance, and display.2 Who is an IP holder: whoever creates an original work, or the agent to whom the creator assigned ownership. Holding IP has little to do with literally copyrighting a work (i.e., writing "copyright" on a text or other object), since a widely-used 1988 Berne convention determined copyright to be implicit in the work itself. As the United States Copyright Office observes, "While use of a copyright notice was once required as a condition of copyright protection, it is now optional."3

But pre-DMCA copyright law then allows an exception for agents working for educational institutions, nonprofit organizations, and libraries. Title 17, Section 1074 sets up a fourfold test for "fair use", which must be applied in order for a use of another's IP to escape litigation:

• Intention - is the user trying, in good faith, to utilize the material for an educational, archival, or another not-for-profit purpose? If not, and if the user appears to be trying to be avoiding payment for its own sake, or trying to make money from the process, legal sanctions are likely.
• Quantity - how much of the source material is involved? For example, using a sentence from another's work, with citation, is friendly and allowed. Using ninety percent of a novel, on the other hand, is likely to be found too much. At the same time, the number of copies is important: one for personal use, or hundreds?
• Quality - what sort of IP is being used? The more original and creative the material, the riskier an act of appropriation becomes. (A thesis statement, an original song are more valuable; a bibliography of extant and well-known materials, or a page of telephone book entries, are far less so)
• Market value - would this usage cost the IP holder significant sales? (An out of print, unavailable text is not likely to generate any sales, while a work that's in print and accessible is harder to use, legally)

The same law also covers libraries under an additional chapter, section 108, which allows for storage, display, and backup copies.5 Obviously, and importantly for our purposes, this provision positively addresses the unique character and public roles of libraries.

These criteria have given rise to many ready-to-hand interpretations and guides, such as the "spontaneity rule" (one-time, off-the-cuff usage is all right, but sustained copying over a long period of time runs into problems; clearly a spin off the quantity test). Applications of the 1976 code have developed over time and widely varying challenges. In practice, fair use largely "depends on all the circumstances", in the words of the US Copyright Office.6 For our purposes, the effects of fair use's promulgation are threefold. First, many institutions and people have taken advantage of the concept to operate effectively: schools, libraries, non-profit NGOs. Second, although grounded in legal principle, the application and practice of fair use has been variable and fuzzy, generating room for interpretations, surprising punishments (the famous Kinko's coursepack case, for example), and redefinitions of boundaries. Third, the law and its interpretations have, until very recently, been largely driven by analog, rather than digital, storage and communication devices.

Enter the internet, widespread file sharing, and the rise of the DMCA. As the internet expanded throughout the 1990s, several challenges to copyright unfolded. The open source nature of Web design, where all HTML and some file information was clearly available to any user, promoted an anti-ownership, anti-copyright ethos. The rapid growth of open source software, such as Linux, further failed to extend class IP principles into cyberspace. Most notoriously, easy file sharing far surpassed analog and magnetic tape copying. While audio tape dubbing, for example, usually results in some signal degradation, digital copying can be perfect. Although the peer-to-peer application Napster rocketed free file sharing to global prominence, the internet had for years enabled easy copying, and continues to do so through old means and new.7 As the 1990s drew to a close, and digital media continued to develop in power, increase in popularity, and further penetrate everyday life, IP holders grew increasingly anxious that the Internet Age was simultaneously the Age of NeoPiracy.

A coalition of prominent IP holders, including print publishers, music companies, and the film industry, lobbied Congress for legislative redress. Existing law had proven incapable of stemming the piratical tide. For example, videocassette regulations expect a certain amount of dubbing, based on tape copying's logistical obstacles (signal weakening, boosting, and degradation, among others). In contrast, it's trivial to make fine copies of a compact disk's songs to a computer hard drive.8 At the same time, technological solutions, such as digital watermarks and password protection schemes, had not proven efficacious. A culture of ready piracy, or ease of copying, had arisen without signs of abatement.

In response to such concerns, under intense lobbying, and with little public scrutiny, the Digital Millenium Copyright Act passed Congress with large majorities and was signed into law by President Clinton on October 28^th, 1998. There was little sustained public reaction, at first, aside from a May 2000 Stanford protest.9 This is due partly to a dearth of immediate legal action stemming from the timetable of the Act itself: not kicking in until October 2000 (sec. 1201 (a)). However, with the spectacular fall of Napster in late 2000 and early 2001, the Act's presence became known and tested. The prosecution of Dmitri Sklyarov and the public intimidation of Professor Felten brought the DMCA into the light of day, and a barrage of criticism. However, no significant legal challenge has made headway. Furthermore, the Librarian of Congress gave the Act his approval in August 200110, despite opposition from many librarians.

Given such dissonant receptions, what does the DMCA provide for?11 The Act is quite heterogeneous, including a wide variety of provisions, from password protection to videotapes. But one principle unites the diverse strands: one may not copy another's digital work without permission. An IP holder's work is to be as inviolate in the digital sphere as in the analog. As one may set up various strategies for protecting one's work in the pre-digital world (publishing in book form, whose access barrier is purchase price; limiting performances to ticketholders; adding signal variance to videotapes), an IP holder may create digital protections: password protection, subscription services, time limits. Circumventing these digital protections, in the law's language, is punishable by courts, in the same sense as stealing a book, or sneaking into a movie theater without purchasing a ticket.

Discussed in this language, the DMCA seems exceedingly reasonable. As Doug Isenberg argues, IP holders now have useful tools for addressing piracy, including exacting and clear tests for determining blame.12 The code is hardly innovative, in this reading, since it extends pre-Web protections into cyberspace. Further, the unambiguous, value-clear rhetoric of protection against stealing is quite effective in persuading any propertyholder, no matter their cyberliteracy and experience. And as the Act continued on the books, entering into application and review, the lack of public discussion of it furthered its aura of acceptance, much as greets most noninnovative, or technical, law; as time progressed, the odds that bringing forth criticism would appear politicized or insurgent, rather than publicly-concerned or reflective, increased.

The actual details of the law, however, enable a series of principles and punishments that go far beyond current practice of copyright and ownership.

An immediate, if not yet actioned problem, is that ownership and usage of digital materials can be fundamentally very different from analog media. A well-known example compares theft of a nondigital and a digital object. If a thief steals one of my books, I can no longer use that book. I would replace it - and the replacement might be a lesser thing, if the stolen book contained post-publication annotations. In contrast, "stealing" a file from my desktop means copying it, in most cases. An additional act of deletion would have to occur in order to replicate the analog theft. Stealing an object is not the diametrical opposite of another owning it, in the digital. A more glaring example is the current mechanism of viewing Web pages. A user's browser, be it Netscape, Internet Explorer, Opera, or others, "views" a page in fact by copying it to user's hard drive. Each request to view a page (http://…) generates a copy of the original, housed on a Web server. Worse, one popular browser setting keeps a copy of that page in a directory on the user's computer, known as the "cache", even when the browser journeys to other sites. The act of surfing the Web, in other words, is easily and often also the practice of creating a series of cached copies. So much of this will never be challenged in court, since the act of "publishing" a page means making it available for frequent copying, in effect. However, a user might "cache" a copy of a page for subsequent use - if off-line, or if the user's internet connection is likely to be unreliable. One might even cache a copy to show others, off-line, without their browsing. Such copies aren't authorized explicitly by the IP holder. They probably won't be the cause of lawsuits, but do offer a good example of how traditional notions of usage and ownership don't apply directly to the digital realm. Since we conduct many discussions of digital IP by looking to pre-Web, analog examples, our conversations need to bear in mind this radical difference.

In fact, thinking of parallels fails to apply fully to the DMCA, since the Act actually changes, rather than translates, existing notions of IP. Fair use is the most glaring difference. While established copyright law provides, if fuzzily, for the use of another's IP (see above [internal hyperlink, Donald?]), the DMCA redefines fair use into a small, and entirely commercial, concept. In its series of exceptions to "thou shalt not copy", the law permits fair use copying only if the user if only in the process of deciding whether or not to buy the work in question:

That is, I can download a free version of a game to see if I'm interested in buying the CD, or the on-line subscription, a digital test-drive, as it were.

A common act of copying now falls under the criminal aegis: backups. Many users, without evildoing intent, will make one or several copies of useful digital materials for protection against damage to the copy, or to its housing (a hard drive eaten by virus, a disk burned by spilled coffee). Others will make as many copies as machines on which they plan on using the material. For example, a consultant might keep one copy of DigiConsult on their traveling laptop, one on their office desktop, and a third at home. All of these uses are against the DMCA, at least if the original, proprietary software even nominally forbids copying.

For all educators, the implications are subtle and disabling for display purposes. If I'm teaching a class on international relations, for example, I might xerox an editorial from the New York Times from today, if it offers a useful perspective on this week's syllabus topic. According to Title 17 fair use, I'm within my limits: the quantity being low (at most a couple of hundred, for a lecture class; at least a handful, if a seminar), the intention good (education), and the market loss minimal, if any (the students were unlikely to all go out and buy the issues, and in low numbers). However, if the Web version is blocked by password, caching the same editorial for display from an overhead, or emailing the text to students, is flatly against the DMCA. Admittedly, the same law prevents me from Webbing that text, and thereby making it a copying act numbering potentially in the millions, which is consonant with the 1976 law. But the removal of that law's four-fold test disables all educational copying in the digital world. Under the threat of public DMCA cases, and the heavy penalties attending violations, educators are likely to turn away from digital copying, and the many positive uses it affords students and scholars.

For those of us teaching cybercultural issues, an area of content is also blocked: the realm of problematic digital copying itself. Although the DMCA insists on several occasions that its enforcement shall not abridge freedom of speech (such as 1201(c)(4)), at other points its language prohibits not only unauthorized copying but any discussions of how such copying works. This provision exceeds analog equivalents, since one may buy, sell, read, and own texts describing in vivid detail many means of illegal activities, from illicit xeroxing to homicide. In practice, would not teaching the history and culture of software piracy not fall foul of the DMCA? Assigning the current issue of 2600, the leading hacking journal, would also include students reading how to violate eBook protocols, for example. Lecturing about the popular disregard for freeware timelimits would also fall under the ban. Webbing notes on encryption techniques, a staple of computer science, should be a DMCA violation; merely linking to Web sites that contain such information can be a DMCA infraction. Section 1201(g) makes provisions for "Encryption Research" - so long as such work is "necessary to identify and analyze flaws and vulnerabilities… [and] if these activities are conducted to advance the state of knowledge in the field of encryption technology". Given this year's legal challenge to Professor Felten, it's clear that that section has ample room for interpretation. As Siva Vaidhyanathan points out, the entire discipline of new media studies - an evolving, growing field - might lose the bulk of its subject matter.13 Could Keith Winstein's January 2001 MIT seminar, "Decrypting DVD", be prosecuted, or outlawed?14 In short, the Act might criminalize and restrict what can be researched and taught in American classrooms, a plain violation of academic freedom.

Librarians may face results more dire still. Many libraries serve as gateways to the internet for communities without widespread computer ownership. At the same time, libraries are increasingly housing digital materials, such as DVDs, CDs, and Web sites. These dual practices lead to several DMCA violations. As with educators, libraries could be prosecuted for holding, or merely linking to, materials that contain information on potentially illicit digital copying. Given the unstable nature of post-DMCA copyright law, copying digital materials for public usage might constitute a violation; as a result, librarians may increasingly refrain from such copying, reducing their reliance on digital materials. Since internet access may empower users to acts of anti-DMCA copying, even innocently, should not librarians monitor, or even restrict such access? And should librarians expand their roles to include instructor and supervisor of copyright? Still other problems crop up around the principle of "first sale", or whether or not a user has the right to resell or make a copy of the original. The DMCA largely assumes that libraries' digital holdings do not hew to this principle, and thus may be compelled to re-purchase each user's use of such materials. If taken to court, this will simply stop libraries from obtaining or maintaining digital media. The effects of all of these problems on chronically underfunded libraries and overtasked librarians cannot be other than deleterious. Although there are measures libraries can take to minimize risk, such as policing users and minimizing usage15, librarians are still left with a difficult, dangerous position if they want to mobilize the advantages of the internet and new media. Since libraries are one of the few social sites for bridging or fighting the digital divide, the DMCA may neutralize their abilities in this area, with a potential side effect of increasing digital stratification.

At the same time, the DMCA's innovative increases in copyright protect oppose the internet's cultures of ownership-free, or collective, design. The open source software movement, most prominently typified by Linux, thrives on the assumption that collective products offer benefits that traditional IP does not. Collective oversight, for example, expands the energy and number of skilled critics, leading to excellent feedback for program development. The lack of capital barriers to entry enable many users to start exploring open source projects easily. Long opposed by traditional and corporate IP holders, open source continues to thrive and expand. The DMCA does not outlaw open source, but empowers its opponents significantly. Rhetoric, such as Microsoft's "open source is viral" argument (from the .net campaign), intensifies, and open source falls out of the opposition: piracy vs. legitimate ownership.

One sign of this subtle change is in Web design. The Web has expanded rapidly partly due to its open nature. Any user can examine the source code of any page, copying tags, learning new tricks with tables, hacking JavaScript's. Although a designer or design team may point to an innovative style, it's not possible to copyright a page, a style, or a feature of layout. The DMCA may mitigate this openness, in its progressive unfolding in courts and lawsuits. For example, copying a cool JavaScript without authorization or acknowledgement the DMCA's no-copy mandate. This might not be actioned in court, but the DMCA can provide ammunition for a cease and desist letter, chilling the lighting pace of Web development. At a larger level, there have been some movements towards institutionalized the copyright of Web features. A recent World Wide Web Consortium proposal would allow creators to copyright - and, thereby, sell, lease, grant, etc. - their Web browser standards16. Although the DMCA does not compel such changes in its black letter code, it nonetheless shapes a climate making an extension of copyright into new, and unprecedented, digital areas likely.

On another level, the DMCA moves against a traditionally conflicted legal area: freedom of speech, via ontology. If it is illegal to discuss methods of defeating encryption, how much more outlawed are the software methods involved? Obviously, programs for ripping CDs and finding NT backdoors are ripe targets for DMCA-inspired court actions. But what are programs? If we consider them to be material objects, at least partially (a program lives in a material container, such as a disk or network drive, after all), or at least conceptual objects, they are then instruments for violating the law, much like lockpicks or cop-killer bullets.

One side effect of the free speech problem is that IP holders can get personal, and sidestep the public domain. Under pre-DMCA law, an IP holder may refuse the right to use that work to any user, but fair use can allow certain users to obtain access anyway, provided they pass the test of Title 17's Section 106. But the DMCA's abrogation of full fair use suspends that public interest feature, leaving behind a personal nexus. For example, a company may choose to deny IP usage to a known criminal, or to a person whose demographic doesn't fit that company's target market, or to a critic; all of the latter then are out of luck, and access. Some users might refrain from certain speech acts, in order to anticipate DMCA-based blockage in the future17. As Lessig argues, the act of browsing, reading, or other usage should contain a certain level of anonymity to prevent this type of blocking, or should be able to rely on a sense of public interest, the commons, or fair use.18

A further spin on the free speech problem returns to fair use in terms of creative use of another's work. American culture has a long tradition of "fan fiction," stories and other works created using characters and settings from an established text. Star Trek offers the most famous example of this, with fans writing several decades' worth of stories, poems, novels, and songs featuring the crew of the Enterprise. A more recent, and digital, instance is the attempt by Warner Brothers to silence Buffy fan sites, which made creative (and loving) use of the popular show's characters. WB backed off, after a storm of protest, but their decision was tactical, not legal.19 According to the DMCA, any appropriation of IP must be done with the owner's permission; the rich variety of fan culture may decrease as a result of the Act.

In general, this massively intensified focus on IP holders' rights marks a historic shift in American copyright law and practice. The material focus of the DMCA on digital media grounds a narrowing of fair use and free speech. While pre-Web copyright laws still apply for analog media, digital materials are now subject to very narrow usage, legally. The DMCA "propertizes" intellectual property and copyright, in Lessig's terms, by reducing the panoply of IP usage to a yes/no checkbox on a licensing agreement dialog box. IP holders have enhanced freedom protect their property, indeed, but they now have as well the liberty to deny usage at a wider scope than modern America has allowed. Users and professions that depend on the doctrine of fair use, especially teachers and librarians, have fewer options and abilities under the DMCA; those relying on the application of freedom of speech, from researchers to computer scientists, may see their grasp of their chosen field slip away. The digital commons, made up of ever-developing new media, the internet, and netizens, which may be the most enduring emblem of the American 1990s, is largely closed off in favor of a constellation of licenses. The tradeoff is woefully unbalanced, and can only be addressed by a reinstallation of fair use and free speech guarantees.

b i o :
Bryan Alexander is an Assistant Professor of English at Centenary College of Louisiana, where he teaches computer-mediated classes on the Gothic literature, cyberculture, eighteenth century literature, critical theory, and the experience of war. Through classes on topics ranging from the Vietnam War to Gothic novels, Bryan has experimented with innovative approaches to distance learning. Along these lines, Bryan consults on computer-mediated writing, interdisciplinary studies, and writing across the curriculum. Committed to exploring computer-mediated pedagogy, he continues to research and write on the critical uses of computers and teaching in terms of interdisciplinary liberal arts and the contemporary development of cyberculture.

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footnotes:

1. http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html
2. http://www4.law.cornell.edu/uscode/17/106.html
3. http://www.loc.gov/copyright/faq.html#q53. See also the circular at http://www.loc.gov/copyright/circs/circ03.html .
4. http://www4.law.cornell.edu/uscode/17/107.html and also http://www.loc.gov/copyright/title17/92chap1.html#107 .
5. http://www4.law.cornell.edu/uscode/17/108.html and also http://www.loc.gov/copyright/title17/92chap1.html#108 .
6. http://www.loc.gov/copyright/faq.html#q47
7. Accessing a non-subscription-blocked Web page is itself an act of file sharing, as the user reads the HTML document creating the page, as well as whichever other multimedia files the page calls (images, sounds, movies, Flash and Shockwave files, etc.). Further, after Napster's spectacular smackdown, other P2P applications have continued to experiment and thrive, such as Groove, Gnutella, and FreeNet.
8. See Laurence Lessig's Code for the best explication and argument about the need for digital-specific laws and applications for cyberspace.
9. http://www.salon.com/tech/log/2000/05/19/dmca/index.html
10. Official text at http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html .
11. The full text of the DMCA can be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_bills&docid=f:h2281enr.txt.pdf .
12. http://news.cnet.com/news/0-1276-210-7462687-1.html?tag=bt_bh .
13. Cf his Congressional testimony at http://www.loc.gov/copyright/1201/hearings/siva.pdf
14. Cf homepage at http://www.mit.edu/iap/dvd/ .
15. http://www.arl.org/info/frn/copy/osp.html
16. See Mindjack blog http://www.mindjack.com/relay/archives/00000034.htm , which links to a Cnet story and the W3 proposal text.
17. Cf Siva Vaidhyanathan's tesimony, above.
18. Lessig, op cit, 138-141.
19. http://www.wired.com/news/print/0,1294,34563,00.html

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