Entire Issue - National Association of Legal Assistants

FREE SPEECH & FAIR USE STIFLED?
THE DIGITAL
MILLENNIUM
©OPYRIGHT ACT
by Cathy L. Clamp, PLS, CLAS
At the end of the past century, advances in electronics and
software occurred faster than laws could be written to govern
them. Development of CDs, MP3 recording devices and PDF
software brought a flood of books, movies and music within
reach of a growing worldwide Internet audience. These same
advances gave rise to piracy and fraud.
In 1998, Congress sought to bring the United States
into compliance with the 1996 World Intellectual Property
Organization (WIPO) Copyright Treaty. Their efforts
resulted in the Digital Millennium Copyright Act of 1998
(DMCA). Introduced as H.R.2281 and codified as 17 U.S.C.
§ 1201, et seq. of the U.S. Code, the DMCA was enacted
not only to comply with existing treaties, but also to provide
protection for creators of software and copy-protected CDs
and videos. In addition, Internet Service Providers such as
AOL had come under fire for allowing illegal copyrighted
material to be posted on their sites.
The intention of DMCA was honorable. Subsequent
cases and interpretations, however, have raised concerns about
the protection of libraries and scientific researchers from
prosecution for previously legitimate acts. Interpretation of
certain provisions also could pose serious problems for
consumers who seek to make use of copyrighted materials
that they have properly purchased.
DEFINING CASES
Four cases have defined the parameters of concern with
DMCA, raising issues of censorship, stifling of free speech, and
hindrance of legitimate competition and fair use.
United States of America v. Elcom Ltd., Elcomsoft Co., Ltd,
and Dmitry Sklyarov, 203 F.Supp.2d 1111, 2002 Copr.L.Dec.
P 28,453, 62 U.S.P.Q.2d 1736.
Dmitry Sklyarov is a Russian computer programmer
employed by Elcomsoft Co., Ltd. In July 2001, while
attending the Def Con hacker conference in Las Vegas, he
was arrested by federal agents after giving a presentation
on e-book security and was jailed for several weeks before
being returned to Russia.
In this case, Adobe Systems, Inc., had accused Elcomsoft
of marketing a software program called the Advanced e-Book
Processor. This application exploits a vulnerability in the proprietary
software, and allows a user to strip copy and use
restrictions from Adobe e-books to allow them to be printed,
backed up and read aloud. These are not features of the Adobe
Portable Document Format (PDF). Sklyarov was neither
accused of infringing on copyrighted e-books, nor assisting
anyone else in doing so. Rather, he was prosecuted under
Section 1201 of the DMCA, which prohibits any person from
manufacturing, importing, providing, offering to the public or
otherwise trafficking in a circumvention technology.
Even after Adobe withdrew their complaint, federal prosecutors
chose to go forward with the suit. Charges against
Dmitry Sklyarov were ultimately dismissed and Elcomsoft was
acquitted. While jurors agreed with prosecutors that the product
was illegal, they understood how the law could be confusing
to the Russian company. Elcomsoft’s attorney cautioned
that the acquittal does not mean software developers should
consider themselves immune from future criminal prosecutions
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