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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 20 FACTS & FINDINGS / AUGUST 2003
well as DMCA when she said that the company “did not induce or encourage Robertson [the fan] to directly infringe Ellison’s work.” She ruled that AOL is protected by DMCA from liability so long as the disputed content is removed when the ISP is notified. The future of the Digital Millennium Copyright Act depends on both court interpretation and legislative action that will not only protect the owners of copyrighted works, software and systems, but will continue to allow fair use of the works by the public, schools and researchers. While not being reduced to lawsuits at present, libraries and on-line universities all over the world are holding their breath to determine if loading textbooks on Web sites is a violation of the provisions of the DMCA. The U.S. copyright laws have always carefully balanced the rights of both inventors and competitors, while allowing fair use by its citizens. This is a wise guiding principle that should encourage DMCA amendments allowing protection to all parties through the next millennium. Cathy L. Clamp, PLS, CLAS, is a freelance paralegal in Denver, CO, with specialties in both real estate and intellectual property. She is co-author of two novels, one an e-book, and one a traditional print book, both scheduled for release in 2003. clamp@centex.net “I know I should have called sooner, but…” Are you performing legal acrobatics at breakneck speed? RMTC will bring 35 years of experience to your aid when you need patent, litigation or contract work professionally translated. We translate into and from all languages with an emphasis on quality and turn time. Call or visit our website for a more complete list of services provided to the legal community. R alph McElroy Translation Excellence with a Sense of Urgency ® C ompany www.mcelroytranslation.com 1-800-531-9977 FACTS & FINDINGS / AUGUST 2003 21
Page 2 and 3: Departments President’s Message -
Page 4 and 5: Call for Proposals 2004 Convention
Page 6 and 7: Anatomyofa Construction Paralegals
Page 8 and 9: Anatomy of a Construction Defect Ca
Page 10 and 11: Resources & Opportunities Reviewed
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Page 28 and 29: CONVENTIONSNAPSHOTS July 9-12, 2003
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