Entire Issue - National Association of Legal Assistants

The Digital Millennium Copyright Act
continued from page 19
under the law. “This is sort of the first dent in the
DMCA…but developers still need to be careful,” Burton said.
While this suit might seem a legitimate use of DMCA to
protect Adobe’s copyrighted software, other individuals and
companies which rely on the ability of a competitor of copyrighted
inventions to “reverse engineer” a similar product,
pulled their intended products from the market, fearing prosecution
on similar grounds. Likewise, Dug Song, an author of
papers regarding software security, removed a paper from his
Web site describing a common vulnerability in many firewalls.
Other programmers who have found flaws in proprietary software
have withheld papers or made anonymous reports instead
of being identified with the information. Detractors of DMCA
claim that the fear of prosecution stifles legitimate competition
and free speech.
Universal City Studios v. Reimerdes, 82 F.Supp.2d 211
(S.D.N.Y. 2000), broached both the issues of freedom of press
and fair use. Eric Corley, publisher of 2600 Magazine, in its
coverage of the DMCA controversy, posted on its Web site a
link to a program known as De-Contents Scramble System
(DeCSS), which defeats encryption used on DVD movies.
Corley and 2600 were not accused of creating the software, or
of using the software to infringe on existing copyrights. The
district court found that the mere posting of the link was sufficient
to be in violation of the provisions of §1201, and they
were permanently barred from publishing or even linking to
the DeCSS software code.
The Second Circuit Court of Appeals upheld the lower
court decision in November 2001. The mere threat of litigation
has silenced many web bulletin boards. According to an
article entitled “Call it the Digital Millennium Censorship Act,”
by Julie Cohen, law professor at Georgetown University: “A
publisher can prohibit fair-use commentary simply by implementing
access and disclosure restrictions that bind the entire
public.” While not the intent of the drafters, the DMCA seems
to protect one side of the public while unfairly restricting the
other.
Within the ruling, the DeCSS software was held to be a
violation of the DMCA because it defeated the encryption
placed on the product by the copyright owners. Yet, prior to
the DMCA, an individual consumer had the right of “fair use”
of a purchased copyrighted item. “Fair Use” is the doctrine that
allows the public to use copyrighted works, without having to
ask permission of the owner, so long as the use does not unduly
interfere with the owner’s market of the work.
The right of a consumer to purchase a music CD or
a VCR tape of a movie and make additional copies for
his/her own use has long been established. However, any
consumer who chooses to defeat anti-copy encryption on
products sold since the institution of DMCA are subject
to a first offense fine of $500,000 and/or five years in federal
prison. A second offense will net the violator a fine of
$1,000,000 and/or 10 years!
Edward Felten v. Recording Industry Association of
America, (RIAA), Case No. FVR63285 (D.N.J. 2001), also
dealt with freedom of speech in a different setting. In April
2001, just before the 4th International Information Hiding
Workshop, Professor Edward Felten of Princeton University
received a letter from RIAA strongly suggesting that if he were
to give his planned speech on cracking digital watermarks in
software such as Secure Digital Music Initiative (“SDMI”),
they would file suit under DMCA.
Professor Felten not only chose to give his speech,
he filed suit against RIAA and the U.S. in New Jersey
Federal Court. He asked the court to declare that he and his
research team had the First Amendment right to discuss and
publish their work, even if it may discuss weaknesses in the
systems used to control digital music. After both the government
and RIAA filed documents stating that “scientists
attempting to study access control technologies” are not
subject to the DMCA, the Court dismissed Felten’s case.
They chose not to appeal the dismissal, hoping to take the
industry and government at their word that they will never
again threaten scientific research.
SOME GOOD NEWS
Not all of the DMCA news is bad. The case of Ellison v.
Robertson, 189 F.Supp.2d 1051, 2002 Copr.L.Dec. P 28,420,
62 U.S.P.Q.2d 1170, will assist Internet Service Providers
(ISPs) in avoiding liability for illegal material appearing on
their networks.
Harlan Ellison, author of several books and short stories,
sued AOL in 2000 alleging that the company violated the
DMCA by allowing unauthorized copies of his works to
appear on Usenet servers for two weeks. The suit originally
named the fan who scanned the works, as well as the newsgroup
host, but both other parties settled, leaving AOL as the
only defendant.
U.S. District Judge Florence-Marie Cooper correctly
interpreted the provisions of existing copyright law, as
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FACTS & FINDINGS / AUGUST 2003