||OK. Let's admit it. We made a mistake. It seemed like a good idea
at the time, but we screwed up. It's time to make things right and
repeal the Digital Millennium Copyright Act.
Back in 1998 the entertainment industry was scared, and who could
blame them? Not only was the Internet threatening to undercut their
lucrative distribution business, but illegal Internet trading of
their content was becoming common. The industry claimed they needed
breathing room. They told us that they wanted to sell their huge
catalog of music and movies on the Internet, but couldn't do it
in that wild-west environment. The enforcement of copyright laws
just needed to be strengthened a little.
The DMCA was passed with those concerns in mind. Most significantly,
it prohibited the creation or distribution of technology that enabled
unauthorized access to copyrighted material; even if the creators
themselves did not violate copyright laws.
In our haste, however, we forgot that unlike patents and trademarks,
almost everything falls under copyright law. As soon as you create
a composition of any kind, you instantly own the copyright. You
don't have to register your new work or even show it to anyone.
It's yours. Normally that's good, but that is what caused the DMCA
to backfire on us.
In March 2001, Princeton University's Edward Felten had analysed
the file-encryption schemes favored by the recoding industry, and
planed to present his findings at a cryptography conference. Dr.
Felten was scathing in his criticism of the simplicity and ineffectualness
of the encryption, and his lecture was eagerly anticipated. Unfortunately,
before he could present the paper he, his employer and the conference
organizers were all threatened with lawsuits under the DMCA. It
seems that publicly discussing the weaknesses of this encryption
could help others gain access to the copyrighted material it protected.
The paper was pulled.
In March 2002, the Church of Scientology used the DMCA to pressure
Google and other search engines to remove links to sites critical
of the church. Scientology claimed that these sites contained copyrighted
material, and Google was helping to provide people with access to
them. The DMCA is structured such that Google faced a huge legal
liability if they did not remove the links immediately and without
In November 2002, Wal-Mart, Target, Staples and several other big
name retailers used the DMCA to threaten comparison-shopping sites
who discovered and published upcoming Thanksgiving-Day sale prices.
The rationale was that since the sales prices had been created by
these companies, they were copyrighted, and the websites had not
been given authorization to give users access to it. The information
was pulled from the sites.
Just this month, Lexmark won an injunction against printer-parts
manufacturer Static Control Components. The problem for Lexmark
was that this company manufactured a chip that enabled third parties
to produce low-cost printer cartridges that worked with Lexmark
printers, thus hurting their business. Lexmark argued that the chip
could be used to provide unauthorized access to the copyrighted
software on their printers. Of course, no copyright violation has
actually occurred. Customers who purchase Lexmark printers clearly
have the right to use those printers to print documents. Theoretically,
however, the chip could be used to provide such unauthorized access
if an "unauthorized party" ever came into possession of
a Lexmark printer.
I'm sure you see the pattern here. The DMCA is being used by large organizations
to shut down individuals or small companies doing anything they
don't like. There have, in fact, been few actual lawsuits. The DMCA
primarily a tool of intimidation. Since the law is weighted overwhelmingly
in favor of the copyright holder, defending yourself against it
is extremely expensive and risky.
Most notable perhaps, is what the DMCA has not achieved. The entertainment
industry has spent the last five years eliminating potential competition,
and the easy, inexpensive and widespread availability of content
we were promised is nowhere to be found.
In fact, now the industry now tells us that the DMCA is woefully
insufficient and is lobbing congress for absurd new levels of power.
In various bills pending before Congress now, they want the right
to break into computers they think are involved in copyright infringement
with no liability for any damage they may cause. They are demanding
that future digital TV sets send information back to them about
who is watching what shows and and when. They are also demanding
that Congress force all PC manufactures to alter their hardware
to prevent copying CDs and DVDs. Then maybe, just maybe, they might
allow us to buy their content over the Internet.
Clearly we have gone down the wrong path.
Now, I am happy to purchase music on the Internet if the entertainment
industry considers me trustworthy enough to buy it. If they don't
wish to sell it to me, for whatever reason, that's fine too. I am
not, however, willing to have Congress grant them Gestapo-like powers
on the premise that you and I simply can't be trusted.