Hearing Spotlights Clash

BOSTON (05/24/2000) - The U.S. Copyright Office conducted two days of contentious public hearings at Stanford University last week to consider legal exemptions that would permit some circumvention of copy-protection schemes.

Supporters of such exemptions believe existing restrictions hinder development of open-source software, but opponents argue changes would unfairly allow outsiders to exploit protected work without compensating the authors.

Companies and public interest groups offered testimony on which classes of works should be exempted under section 1201(a)(1) of the Digital Millennium Copyright Act (DMCA). Meanwhile, outside the building, members of the Silicon Valley Linux Users Group held a rally to protest the current policy, which, they say, restricts the fair use of copyrighted material and development of free open-source software.

"On first blush this looks to be about money, but it is about power," said Eric Raymond, president of the San Jose-based Open Source Initiative, who attended the rally. "Is power going to go to the information monopolies, or will it go to developers and users?"

The anticircumvention provisions of the DMCA were cited by the Motion Picture Association of America (MPAA) when it filed suit in January to halt distribution of a software utility called DeCSS. DeCSS let users play DVDs on unauthorized Linux-based players. But the motion picture industry said the software could be used for widespread illegal copying.

"It does allow you to copy material to your hard drive, and that is a gateway to piracy," said Steven Metalitz, an attorney who testified on behalf of the MPAA and a collection of software developers. "Even if a lot of people won't use it for piracy, once there are unencrypted copies of this to the hard drive, it can be uploaded to a site and distributed around the world with no protection at all."

Robin Gross, staff attorney at the San Francisco-based Electronic Frontier Foundation, argued in her testimony that movies on DVD should be exempt from the anticircumvention provisions because restrictive region coding prevents lawfully acquired material from being viewed on players sold in another area.

"They are telling us how to use things I've legitimately licensed from them," added Chris DiBona who holds the title of Linux Community Evangelist at VA Linux Systems. "I'm not talking about piracy here, this is very frustrating."

While drafters of the intentionally vague DMCA expected many of the details of the law to be ironed out in court, few expected that the legal wrangling would include injunctions against the press. But both the MPAA and the DVD Copy Control Association have sought and received injunctions against media outlets posting or linking to DeCSS. The New York Times' Web site linked to the software in a story, and its editor in chief submitted an affidavit in a New York DVD case supporting the necessity of providing such links to readers.

A number of mirror sites have posted links to the software.

"Can a one judge sitting somewhere in a trial court issue an order that says nobody in the world is allowed to have, to use, to improve or to develop software for playing multimedia content without the permission of the manufacturers of the content themselves?" asked Eben Moglen, a professor of law at Columbia University Law School and general counsel to the Free Software Foundation. "This is an astonishing development in the course of our understanding of what we call the copyright bargain, the relationship between authors' rights, publishers' leverages and consumers' needs."

The DVD dispute has been the first skirmish in a larger conflict between proprietary software vendors and developers and users of free, open-source software. Users of devices with free software kernels can modify, redistribute and copy content. Open-source advocates fear that vendors will use the anticircumvention provisions to criminalize reverse engineering for the development of compatible, open-source products.

"It outlaws fair use of encrypted content by outlawing the equipment or software you would need to get at that content," said Nathan Myers, an engineer at Zembu Labs in Palo Alto, California, who joined the Linux Users rally. "It outlaws reverse-engineering the encryption in a product to discover what security hole and Trojan horses it might be hiding and offers grounds for prosecuting anyone who would report finding such problems."

Implications for Users

DiBona said software vendors could use the DMCA to halt the evaluation of code needed to do legitimate benchmarking tests and other performance analysis.

Metalitz contends that fair use is not the real issue, but simply a defense of copyright infringement. He said more DMCA exemptions would give producers of intellectual property less incentive and ability to invest in products.

"It is not just a motion picture issue," said Metalitz. "It affects all copyrighted material produced in digital form."

Members of the Washington-based Business Software Alliance (BSA) add that there are already some exemptions for reverse engineering. "There has been no clear demonstration that there needs to be an exemption, and any (more) exemptions would open a Pandora's box on methods of circumventing copyrighted material," said Martin Konopken, senior corporate counsel at BSA member Autodesk Inc. in San Rafael, California.

The Open Source Initiative's Raymond countered that the DMCA is simply being used to enforce information monopolies, price-gouge customers and take control away from end users.

Frederick Weingarten, a technology manager at the American Library Association, who testified at the hearings, said that his organization is seeking exemptions for uses such as archival rights, distance learning, display for educational purposes and the first-sale doctrine which allows libraries to buy a book and loan it out. 'The anticircumvention measures in the act constitute a really basic threat to a whole range of public rights that exist under copyright law," said Weingarten.

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More about Autodesk AustraliaBSABusiness Software AllianceDVD Copy Control AssociationFree Software FoundationGatewayLinux Users GroupMotion Picture Association of AmericaOpen Source InitiativeStanford UniversityVa LinuxVA Linux SystemsZembu

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