Last Wednesday, the U.S. Copyright Office issued a long-awaited report about the Digital Millennium Copyright Act (DMCA). It was a monumental disappointment. Instead of taking a stand to protect the public from the DMCA, the Copyright Office has firmly planted its head in the sand.
In the U.S. legal tradition, copyright law strikes a balance between copyright owners and the public. In order to create incentives for authors, we grant them certain rights (such as the right to make and sell copies). In order to protect consumers and foster widespread access to our culture, we reserve other rights to the public (like the right to use your VCR to tape ÒThe West WingÓ for later viewing).
In 1998, Congress broke with that tradition by enacting the DMCA, which makes it illegal to fiddle with any technology that copyright owners use to Òlock upÓ their works. Voila, no more copyright balance! If a consumer can't bypass the locks, she can't exercise any of the rights reserved to the public by the Copyright Act.
Responding to the resulting outcry from librarians, technologists, and consumers, Congress asked the Copyright Office to study how the DMCA might affect two specific rights on the public's side of the copyright balance: the right of "first sale" (i.e., the right to sell, loan to friends, or give away works you've purchased) and the right to make backups of software.
In preparing their report, you'd think the Copyright Office would have paid special attention to the public's side of the issue. After all, Hollywood has armies of lobbyists to defend its side of the copyright balance in Washington. The Copyright Office, as an arm of Congress, represents the rest of us. But instead of standing up for the public, the Copyright Office issued a timid report. It recognized the danger to the public side of the balance, but concluded that copyright owners have not yet used the DMCA to limit first sale or the right to make software backups. In essence, the Copyright Office asks the public to trust that copyright owners will wield the DMCA wisely.
Ironically, this Pollyanna advice came on the eve of the arraignment of Dmitry Sklyarov, a Russian programmer who faces up to 25 years in an American prison because his employer, Elcomsoft, sold a piece of software that translates Adobe eBooks from one format to another. What does this have to do with the public's side of the copyright balance? Adobe's format can lock an eBook to a particular computer. So, if you want to give your eBook to a friend or sell it to a used bookstore (things that Òfirst saleÓ permits for books on paper), you may need Elcomsoft's software. Same story if you want to make a back up of your eBook. If all the programmers like Mr. Sklyarov are in jail, you'll simply be out of luck. And the threat to your first sale and backup rights goes far beyond eBooks. Copyright owners are poised to debut a host of Òdigital rights managementÓ (DRM) technologies for movies, music, and software that will dramatically curtail these rights.
The story only gets worse when you look beyond first sale and back ups. Let's look at how copyright owners have used the DMCA so far: to silence a magazine publisher (2600 magazine, which has been barred from publishing software that unlocks DVDs), to threaten computer science professors (Princeton Professor Ed Felten and his team, who exposed weaknesses in digital music locks), and to jail programmers (Sklyarov).
How much worse does it have to get before the Copyright Office recognizes that the DMCA has fundamentally, and unwisely, unbalanced the Copyright Act?
The Copyright Office, seemingly oblivious to the controversy swirling around the DMCA, has told us to trust that the copyright industries will protect the public. Surely, says the Copyright Office, Hollywood would never do anything to alienate consumers in the marketplace. Are we talking about the same Hollywood that filed a lawsuit in 1979 demanding that all VCRs be seized as piracy tools?
But there's a more fundamental problem here. Since when has the public been required to trust in the generosity of the copyright industries to protect the public's side of the copyright balance? Isn't that what Congress and the Copyright Office are for?
Fred von Lohmann is a senior staff attorney at the Electronic Frontier Foundation (www.eff.org), the world's leading nonprofit organization devoted to defending civil liberties on the Internet.