For those that think that some of us are paranoid about the MPAA and copy protection, here's some food for thought. This article from TechTV should wake you up.
Skip Ads on DVDs, Go to Jail?
Court ruling may erode 'fair use' consumer rights to use copyright works.
By Maria Godoy, TechTV News
April 26, 2001
The next time you sit down to watch a DVD and skip past the advertisements, you could be breaking the law.
This scenario may sound far-fetched, but depending on the outcome of a May 1 federal appeals court's review of the Digital Millennium Copyright Act (DMCA) of 1998, it could become all too true, opponents of the law say.
Designed to protect copyrights in the age of digital piracy, the DMCA makes it illegal to make or "offer to the public a device" -- whether it be software, hardware, or other means -- to circumvent technological protections in order to gain unauthorized access to any copyright work.
But opponents say the law is eroding the cherished concept of "fair use" -- an extension of First Amendment protections for free speech -- that allows the copying of copyright works for such purposes as teaching, researching, library archiving, news reporting, and criticism.
"Activities that have been lawful and legal are now under threat," said Robin Gross, an intellectual property and fair use attorney with the civil liberties group Electronic Frontier Foundation.
Next Tuesday, the EFF is set to square off against the Motion Picture Association of America (MPAA) before the 2nd Circuit Court of Appeals in New York. The outcome of the case could determine whether fair use freedoms consumers now enjoy -- such as the ability to record television shows on their VCRs for later viewing -- will still hold up in the age of CDs, DVDs, and other digital media.
Bye, bye, fair use?
At the center of the controversy is a Linux open-source software program called DeCSS that can decrypt DVDs, potentially making it easier to distribute pirated movie files online. When Web journalist Eric Corley posted links to the code on his website, 2600, the film industry sued him under the DMCA.
Rejecting the argument that the DMCA violates the First Amendment, last August US District Court Judge Lewis A. Kaplan ordered Corley to remove the links. That interpretation of the law will be at the center of Tuesday's appeals hearing.
"Judge Kaplan has held that fair use is not a defense to anything in the DMCA," said Jessica Litman, a law professor at Wayne State University and author of the new book "Digital Copyright." "If the ruling holds up, the implications for free speech are huge. We're going to have to get used to a whole new set of rules in the free exchange of information."
According to Gross of the EFF, which is funding Corley's defense, Kaplan's interpretation of the DMCA's provisions against circumventing copyright protections effectively nullifies previous fair use rights.
"If you apply the logic of this ruling to videos, it would mean that although recording 'David Letterman' is constitutionally protected, the use of VCRs to record the show and Circuit City's trafficking in them are both illegal," Gross said.
Repercussions for consumers
Congress passed the DMCA over the objections of academics, civil libertarians, technologists, and others who foresaw that the law's provisions against circumventing copyright protections could stifle free speech and scientific innovation, giving copyright holders unprecedented control over the way consumers experience digital works.
"The big tragedy of this law is that it passed without much public input," Litman said. "We failed to show just how widespread its affects could be." Now, she says, the consequences are becoming much too clear.
The recording industry successfully prevented Edward Felten, a Princeton computer scientist, from presenting a paper at a conference Thursday describing how to circumvent a music-encryption technology promoted by the Secure Digital Music Initiative, an industry group. The recording industry had threatened to sue Felten under the DMCA.
While legal experts say it's unlikely that type of scientific gag order would hold up in court, the incident illustrates how copyright holders might use their deep pockets to intimidate individual scientists and squelch free speech.
The end result is that "existing economic interests get to decide what forms of innovation get allowed," said Lawrence Lessig, a renowned cyberlaw expert with appointments at both Harvard and Stanford.
Lessig is among the many legal experts who warn that if the DMCA is upheld, consumers might soon lose certain privileges they've long been accustomed to. For example, while consumers can legally loan a friend a CD they've paid for, it would be illegal to share a legitimately obtained MP3 file if, for example, it is password protected.
DVD viewing might also take a hit, legal experts note. Entertainment companies such as Disney, an MPAA member, are beginning to use encryption technology to prevent DVD viewers from skipping past commercials that precede movies. Under the DMCA, it is illegal to try to fiddle with the code in order to avoid being forced to sit through ads before enjoying the show.
The MPAA, says Litman, "is using the DMCA to actually control the individual's private experience in an unprecedented way."
Emily Kutner, a spokesperson for the MPAA, dismissed the notion that her group would use the DMCA to launch legal attacks against individual consumers.
"That's the most ridiculous thing I've ever heard," Kutner said. The MPAA, she said, is interested in preventing piracy, not controlling consumers.
But pointing to the music industry's threats against Felton, the EFF's Gross notes, "We've already seen an abuse of this power from the entertainment industry."