Copyright proposals for electronic distribution

Intellectual property is rivaling (and resembling) censorship as the top policy issue for electronic media. When a Russian computer science researcher is arrested in the U.S. while attending a computer conference, because his company produced a decryption program, and when a 16-year-old is arrested just for distributing similar software, you know the powers that be are getting serious. Several laws have been considered in the U.S. Congress to increase the rights of information providers at the expense of the research community and the public. International treaties meant to harmonize intellectual property, such as 1996 Performances and Phonograms Treaty of the World Intellectual Property Organization (WIPO), raise similar controversies.

Copyright holders may have tipped their hand too far by pushing a bill called the Security Systems Standards and Certification Act (SSSCA) in 2001. The movie and music industry has for some years been playing with hardware schemes that would enforce their anti-copying goals (that is, schemes that would recognize files that content providers had encrypted and signed, and refuse to allow such files to be copied). This bill would have put legal force behind such schemes. It would explicitly make illegal any hardware or software that failed to support such schemes. Effectively, it would restrict all future technological innovation to schemes that would be approved by large copyright holders, putting an end both to the history of digital technology growth and the history of copyright (which has always been evolving up to now). The bill naturally pitted the public interests and computer companies against the content industries, and passage seems unlikely. But it shows that the mindset of the large studios is to destroy whatever technology they cannot control.

For about a year, Napster and MP3.com were at the center of attention in the field of copyright, because they facilitated copying in ways that major record companies disapproved of. The courts have by now condemned quite consistently the "let everybody share files freely" life style. But an even more far-reaching area of attention and contention is the use of "technological self-help measures" such as encryption and authorization checks within copyrighted works. Many in the general public are familiar with these measures, in the form of DVDs and computer games that can be played only on certain machines. The scope of such measures, and the restrictions they place on customers, are likely to grow over the years, and the laws are being amended to support rather than limit them.

Most noteworthy are the clauses in section 1201 of the Digital Millennium Copyright Act of 1998 that make it illegal for anyone to offer a device "to circumvent protection offered by a technological measure" that prevents either access or copying. CPSR submitted a comment along with many other organizations to the U.S. Copyright Office pointing out the dangers of the access clause. Movie manufacturers are trying to prevent consumers from copying broadcasts of digital movies, a direct blow at the traditional right of fair use. The frightening and absurd results of the DeCSS case (in which movie and DVD manufacturers are trying to suppress information on how to decrypt their products) include legal injunctions against Web sites that make links to infringing sites, and threats against a professor who wrote an academic paper about the technology involved.

In October 2000, the Copyright Office made two minor exemptions to this clause: people can overcome copyright protections to publicize the sites blocked by "censorware" software filters, or to gain access to products after access measures fail or are inadequately supported by the manufacturer. The European Union has recently adopted a directive with substantially the same impact as the U.S.'s DMCA.

A change software companies are trying to make to the Uniform Commercial Code would codify the familiar “shrinkwrap licenses” that severely restrict consumers’ rights to use and even to talk about the contents. Originally called Article 2B of the UCC, the proposal is now called the Uniform Computer Information Transaction Act (UCITA). Critics have combined into a coalition called Americans for Fair Electronic Commerce Transactions (AFFECT). UCITA's supporters claim that most of the criticisms of UCITA are exaggerated or incorrect. Activities relating to the passage of this law in each state are tracked on a CPSR web page; CPSR has also published a general critique. A letter from an American Bar Association committee protests the law. A Web site summarizes the dangers; good background is also available at pages by the Association for Computing Machinery and the American Library Association. Some historical material is at a Consumer Project on Technology page. Law professor Lawrence Lessig has written a critical article.

Movie producers and DVD manufacturers are furiously pursuing people who promote free software for the playback of DVDs. Various cases based on patents, trade marks, and copyrights are trying to make it illegal not only to play the DVDs on unauthorized equipment, and not only to offer software making it possible, but even to make a link from your Web site to a site offering the software. Numerous documents on both sides of the case can be found at a protest Web site. CPSR and a number of other organizations released a statement in defense of the right to distribute information on playback software. The strongest of the cases seems to be based on the "technological measures" clauses in the Copyright Act. While this clause became notorious, being invoked to suppress reverse engineering, the bill as a while lacked some of the more onerous provisions of proposed copyright law. While public sharing of information (fair use) was weakened, librarians received some protections in the bill and ISP lobbyists felt ISPs were adequately protected.

The Digital Future Coalition has critiqued the Copyright Act. One little-known provision protects system administrators from liability for infringing content placed by users on their sites without their knowledge—but the administrators have to file with the Copyright Office to get that protection.

Since one of the bill’s goals is to facilitate the quick removal of copyrighted material (before other people can download it illegally) there have been reports of organizations such as the Church of Scientology misusing the act to identify and censor critics. The database provisions, dropped at the last minute, were opposed by the Clinton Administration, as described in a letter from the Justice Department.

The Collections of Information Antipiracy Act was defeated in 1998 but reintroduced in 1999; its current instantiation is HR 354. This bill is an attempt by companies that produce large databases to create a new type of intellectual property that has been widely criticized by scientists, librarians, and other researchers, including a letter circulated by CPSR. Bills of this sort have been introduced into Congress several times but never passed into law. A creative article by Jonathan Band suggests the impact of the bill. Some researchers and public interest representatives support the Consumer and Investor Access to Information Act, HR 1858, as a preferable compromise, but some problems in it were identified in a statement from the Federal Trade Commission.

The database vendors won these new restrictions on use in the European Union, but lost in U.S. Congress and the World Intellectual Property Organization. Other criticisms of early versions of the database protection proposals are in HyperLaw and a letter from more than 100 law professors. The ACM and IEEE have criticized some of the concepts behind it.

When considering intellectual property, one should not forget the legal and policy struggles over domain names. Trademark holders have pushed for court rulings and policies that allow them to take domain names away from other organizations and individuals.

Patents, again, are a different kind of intellectual property, but here too companies are pressing to grotesquely increase their rights, and their ability to charge prices and license fees above and beyond their actual contributions to useful products. Many people have heard of about the race to patent genes, which would let companies control any medical treatments or other innovations based on those genes. In the copyright world, that would be equivalent to copyrighting a word and preventing other people using that word in any novel or article. In addition to other abuses, the patenting of genes and other natural substances is accelerating the shift of assets from underdeveloped nations to multinational corporations. Software flourished for some four decades without patents, but in the 1980s the U.S. Patent Office started approving software patents; a number of notorious cases where companies patent obvious ideas and try to extract license fees for them have come up since then. As discussed by many articles at the League for Programming Freedom site, software is inappropriate for patents because it is not a physical process.

The No Electronic Theft (NET) Act imposes criminal penalties for the unauthorized distribution of software—a blow against those who break licensing agreements to share with friends or the public regardless of whether they get money in exchange.

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Last updated: November 21, 2001

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