21 May 2002 Grit   » (Journeyer)

The president of the Business Software Alliance wrote this spirited defense of the Digital Millenium Copyright Act in today's San Jose Mercury Times. Not too surprising given the BSA's support of the bill when it was in Congress. (Why the Merc's "My View" space is being used for the opinions of a professional mouthpiece from Washington, D.C. is an entirely different issue.)

I sent in the following response, which probably won't see the light of day, given that I expect a hailstorm of righteous indignation from other Bay Area geeks:

    Robert Holleyman's article on the Digital Millennium Copyright Act tries to justify the law's existence by claiming its necessity for the protection of online content. But the DMCA does not "[extend] traditional copyright protections to the digital world", as Mr. Holleyman claims; it creates an entirely new protection. Online content was already legally protected by existing copyright law.

    The so-called "anti-circumvention" provisions of the DMCA instead seek to provide legal protection to copy-protection and access-prevention devices and technologies. These technologies are not about "piracy"; they are about control, as aptly demonstrated by the example of the protection scheme used for DVDs. There are plenty of ways to copy a DVD: you can make a copy of the entire disk, protection and all, or use a digital video camera to record the movie off a screen. The encryption on a DVD disk does not prevent this copying; it prevents playing the disk on unapproved devices. Such control must necessarily interfere with "fair use" of copyrighted content, since the circumstances in which use of a copyrighted work is legal are far broader than can be allowed by a fixed technology.

    Judge Whyte's opinion does in fact state that the DMCA does not prevent circumventing use restrictions. But I find it incomprehensible that the tools to do so are illegal even while the act is not. Does "fair use" apply only to those technologically savvy enough to build their own tools? Congress's disclaimer of any attempt to impair fair use rings hollow. It is as if owning VCRs were legal but selling them were not. (Remember VCRs? The technology that was supposed to destroy the movie industry by making copying easy?)

    Mr. Holleyman's claims that the DMCA is responsible for the growth of Internet usage is nothing short of ridiculous, given that most Internet content is not protected by any technological protection measures. Employment services, bookstores, news, games, magazines, media sites, and auctions all offer value on the Internet without the need for anything beyond a simple password authentication. In fact, wasn't the movie industry just testifying before Congress that they needed yet more protection before releasing online versions of their movies?

    The nightmare world supporters of the DMCA paint for us already exists. Movies such as "Attack of the Clones" are available for download on the Internet before they are released in the theater. The DMCA is neither effective at preventing copyright violations, nor necessary in order to combat them. Instead, it shifts more power into the hands of content producers--- taking it away from those who write software, manufacture consumer electronics, or want to make fair use of legally purchased media.

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