Report on Panel: Beyond Copyright: The Brave New World of Digital Rights Management

by Ben Wyrick
8/16/01

Dan Burk summed it up: "The Internet is the biggest copy machine in the world."

Digital technology catalyzed by the Internet is allowing a greater dissemination and propagation of knowledge than ever before. And much of that information is intellectual property, some of which is protected by U.S. copyright law.

Copyright law is currently in a state of flux, due to recent legislation such as the Digital Millenium Copyright Act (DMCA), passed in 1998.

What are the rights of creators, distributors, and end-users of material under the DMCA and how have those rights changed since the U.S. Constitution was penned? Do we have a reasonable system for protecting everyone's rights under current law?

These were the questions discussed in a panel titled "Beyond Copyright: The Brave New World of Digital Rights Management," chaired by Robert Ellis, SIGGRAPH Public Policy Program Chair.

Also on the panel were Dan Burk, a University of Minnesota law professor, Deborah Neville, an attorney who has represented authors and Hollywood studios, Barbara Simons, ACM Past President and ACM U.S. Public Policy Committee Co-Chair, and Sarah Stein, a media professor at North Carolina State University with a background in documentary film.

The Constitution calls for copyright protection to "promote the progress of science and useful arts." It states that copyrights are to be of a limited term, after which time they revert to the public domain. According to Burk, the idea is for the public to benefit from ideas, but under DMCA, distribution middlemen, record companies, and publishers are reaping the benefits.

For example, DVDs are protected against duplication by the Content Scrambling System (CSS), a weak method of encryption. A consumer purchasing a DVD remains unable to copy that DVD even after the copyright has run out, in essence keeping the DVD out of the public domain forever, a violation of original copyright law.

Enter DeCSS. DeCSS is a computer program which circumvents the encryption on DVDs and allows them to be copied or viewed on alternate operating systems such as Linux. It could be argued that DeCSS restores the spirit of early copyright law, returning the legal concept of "fair use" to DVDs.

The purpose of fair use, according to Burk, is to allow "enough play in the joints" between the needs of the creator and the needs of the user. Fair use allows the duplication of copyrighted material for academic or research purposes, reviews of a product by critics, and other rights. Fair use walks the thin line between protecting the rights of the artist and allowing legitimate uses of a purchased product by the consumer.

"We wouldn't have academic institutions the way we know them without fair use," Stein says, referring to the heavy reliance universities and libraries place on fair use. The panelists argued that DMCA seriously erodes the doctrine of fair use and encouraged audience members to become politically active in issues of intellectual property.

Another change DMCA has brought in copyright law is the introduction of criminal penalties for reverse engineering and other forms of infringement. Formerly the penalties were civil only, involving fines. Now you can go to jail. And supplying someone with the ability to circumvent encryption is illegal, even if the protected material is not copyrighted.

According to Stein, such provisions benefit distributors such as record companies, as opposed to the musicians themselves. Burk believes the erosion of fair use under DMCA may be unconstitutional due to conflicts with freedom of speech.

"The system is out of control," warns Burk, who believes the spirit of the DMCA is out of line with what the public thinks is fair. Neville points to profit as a motive for restricting fair use, and attributes the rise of illegal copying and hacking to unfair prices for media.

Simons spoke of the positive side of peer-to-peer file sharing networks. She views them as empowering the artist, who would then rely less on record companies for distribution. Hence the record companies' aversion to such networks.

"DMCA is the best legislation money can buy," said Burk, who called attendees to become the Rosa Parks of the copyright movement and take back control of intellectual property from Bill Gates and Jack Valenti.

Simons echoed the call for civil disobedience, but warned that violating the DMCA could have serious repercussions. She added that professional societies like the ACM can help lead the way to workable legislation.

The panelists agreed that a positive change in current law needs to take place: "People should not be thrown in jail for writing code," said Simons.