Analysis: The Digital Millennium Copyright Act

Note: This is part one of a two-part series.

The Digital Millennium Copyright Act (DMCA) was passed by Congress and signed into law more than a year ago, but its true impact is only beginning to be felt. Corporatism squared off brazenly against the geeks, and handily won Round One. If you're wondering where your Napster really went, read more below.

The Digital Millennium Copyright Act is an especially devious title for one of the most significant pieces of Internet legislation yet passed. If you're looking for insight into how corporatism and politics work together to control software and technology -- and to potentially stifle free speech and individual choice -- you can't do better. Nor will you find a more textbook-perfect example of dubious, perhaps even unconstitutional, Internet law.

This is how the struggle over who owns ideas, software and intellectual property on the Internet will be waged; Round One in the battle that is pitting corporatism against the geeks. They won.

The DMCA -- largely the fruit of massive lobbying by the entertainment industry, including companies like Time Warner, Disney and other giants of recording and movie industry -- was passed quietly 16 months ago by a normally acrimonious Congress, and immediately signed by the President. Despite the law's profound and far-reaching implications, Clinton's signing of the measure drew little media attention, online or off, and only in the last few months has its impact begun to be felt.

Central to the law is a clause making it illegal to thwart copyright protection methods through the use of software or hardware. Without that power, argued the lobbyists for record labels, traditional publishers and film studios, their industries would be run out of business by the newly empowered Net generation. This is a generation, mostly young, who've discovered that they could create their own culture on the Net, and get the music they wanted rather than pick only from the choices preselected for them by the music industry. And for free, no less. Thousands of artists who wouldn't have gotten through the record industry's artist-selection machine suddenly had channels to distribute their work and find new audiences. Music software is a powerful example of how the Net gave individuals -- especially ones far removed from corporate models of culture and creativity -- a chance to be seen and heard. And it gave music lovers a chance to hear them as well.

And although the law passed more than a year ago (despite opposition to DMCA by the Electronic Frontier Foundation and other online free-speech activists, the Act's proponents and their lawyers took their time strategizing about exactly how to enforce and implement it.

This year, the gloves came off -- and suddenly people at colleges all over the country are wondering what happened to their Napster sites. Despite what many schools are telling their students -- often that downloading music simply takes up too much bandwidth -- the real reason for their actions is the DCMA.

Pointedly high-profile lawsuits have been filed recently, as the entertainment industry takes the lead in the war against free culture and the spread of forums for artists to disseminate their work -- at least artists the industry doesn't control. The industry has obviously done its homework, studying how software really works and how information moves, and is using the Digital Millennial Copyright Act as its primary weapon against infringement by people using the Net and the Web.

As a result, with little political opposition or discussion, the DMCA is already beginning to redefine entertainment on the Net, and regain control of popular culture, as corporatists move against free music and movie users. As someone who's been writing about First Amendment issues for years, it's hard to imagine a piece of legislation with greater implications for free speech as well as corporate control of intellectual content. This legislation seems to have anti-trust implications as well: how could any law more actively discourage creativity and competition?

If there is a silver lining in the use of the DMCA to dominate entertainment, it's that day by day, the political issues become clearer. Even though many open source advocates see themselves as technologically centered, rather than politically, the DMCA pits the free software movement, squarely against the commercialist threat to the free nature of the Internet. The corporatists grasp what many young programmers don't: Open source is a powerful political idea, and it's antithetical to the way many modern corporations have always worked.

"The anti-circumvention clauses fundamentally change the balance of copyright," Alex Fowlier of the EFF told USA Today's Bruce Haring earlier this week. "Now we're not just talking about rights to the work, but about tying it to the system it is displayed on, or plays on, or is distributed by. That's one level deeper into control than copyright has been associated with." Tying the distribution, display or performance of a work to a system "affects the users in ways we can't even imagine," says Fowler. "It really hampers the future growth of the Internet." It doesn't do much for the present either.

One reason free music sources proliferated so rapidly was that they often piggy-backed on educational and other sites where music seekers congregated. College students could download music on their schools' sites, in part because the schools believed they were simply neutral, non-liable carriers of content. Since there was no Internet law governing content on Web sites, nobody knew if that was true or not. But it certainly isn't true anymore.

The music industry and its lawyers understood that colleges and universities are powerful channels for commercial music, places where artists, bands and even musical genres are discovered and become popular. They realized they didn't have to shut down every free music site on the Net -- those on instant messaging services like ICQ or AIM, for example -- in order to sharply curb the spread of free music. They could use the DMCA as a way to focus on a smaller number of sites, and on universities and colleges. For an industry that garnered $15 billion in revenues last year, the cost of that focused effort is chump change.

Rather than targeting music distributors or downloaders, they lobbied successfully to get a law passed that made it illegal to thwart copyright protection methods in software and hardware. Music industry lawyers then began notifying colleges and universities that they might be in violation of federal copyright protection laws if they tolerated the existence of Napster and other means of music dissemination. Free music users, accustomed for years to downloading what they wanted, were caught unawares.

The DMCA went a step further, in a legally ingenious way. The law decrees that Internet service providers won't be liable for copyright infringement by their users if the providers remove offending material once they're made aware of it. It's that provision that gains entertainment companies so many powerful new allies in their war against "pirates" -- recruiting, in effect, all the institutions and sites that allow content redistribution, and turning them into culture cops. If they block free music, they're off the hook legally. If they don't, they're liable.

Some colleges seem to think they have a far greater stake in avoiding lawsuits than they do in confronting the real issues involved -- like promoting free expression and diversity in culture. And college students are selective in political issues. There is, for example, a broad-based anti-sweatshop movement on many U.S. campuses, but no equivalently passionate and nationally-organized movement to keep culture free.

(Personal note: As an author who writes online and on paper, I am well aware of the complexity of intellectual content and copyright issues. Writing online, especially for this Web site, means relinquishing reprint, royalty and subsidiary rights that used to provide revenue to writers and artists. The work of me and other writers here and elsewhere on the Web is widely distributed, linked and even printed in paper form without permission or payment. But I've also come to believe that the free (open source, if you like) distribution of content -- even opinions -- offers creators new opportunities: broader audiences, greater impact, road-tested ideas, thus eventually, perhaps even more income.)

While the sweatshop issue (students accuse colleges as well as fashion retailers of buying merchandise produced by sweatshop labor) is perfectly valid, one could argue that the effort by corporatism to attack information software and control entertainment is ultimately of equal importance.

Before the DMCA, for example, a university -- or even a commercial Web site -- could look the other way as people presented, distributed and downloaded music. The legal issue was left between the record company and the so-called "pirates." But in recent months the DMCA has sparked legal actions like these:

• Jon Johansen, a 16-year-old Norwegian student who allegedly wrote software allowing DVDs to be played on Linux-based computers, was arrested at the behest of the Motion Picture Association of America. The MPAA claimed the code illegally circumvented DVD copy protection, and sent cease-and-desist orders to hundreds, perhaps thousands of Web sites, including this one, that had allegedly posted the source code or linked to it. The MPAA filed lawsuits against several sites, as well as charges against Johansen and other software developers, and announced it would pursue other offenders.

• RealNetworks obtained an injunction against a portion of software created by Streambox, designed to allow users to capture or record streaming media sent via Real's copy-protected format.

• The Recording Industry Association of America (RIAA) filed suit against Napster, which allows music seekers to trade song files directly from machine to machine without having to post them on the Net. Following the suit, Napster was removed from scores of college and other Web sites.

Tomorrow: The political issue is as simple as it is significant. Do individuals have the right to define their own cultural and entertainment experiences? Or must they depend on content and products sold by a handful of corporations?

Comments

SW indus doing DMCA like cellular indus did ECPA.

[Anonymous Coward]

Did you know that in 1986, it became illegal to listen to certain types of receive only radios in the US? And that the manufacture or import of these types of radios became illegal in 1994? This, of course, refers to the Electronic Communications Protections Act, the law which makes it illegal to listen to cellular radio calls (I refuse to call it "phone") that were being TRANSMITTED OVER THE AIR AND IN THE CLEAR (not encrypted). This was the first time in the history of the US that listening to a radio of any kind became illegal. This is just a shocking, mind bending event. It went unnoticed by the public. Instead of the right solution of cell companies encrypting their transmissions (expensive to them), they just lobbied congress to make listening in illegal (cheaper for them). Now cell companies could tell customers that their calls were "safe" because it's illegal for anyone to listen. In 1994, the cell phone move was brought to conclusion by banning production or import of radios that could receive cellular (824-851 uplink,869-694MHz downlink). Now maybe you think listening to cell calls is wrong and "so what"? Well, it's the slippery slope. It sets the stage for every Tom, Dick, and Harry to have his segment of the RF spectrum made "illegal" to listen to also. Cordless phone frequencies are now on the list, though receivers are not yet banned. Maybe cops will want to be next so "evil pedophile criminals can't use a scanner from radio shack to evade the law". There is also no digital modulation scheme that is defined as "in the clear" by the ECPA. So as companies moce RF emmissions to digital schemes, a massive false sense of security will be created. US digital cellular is *not* encrypted, just digitally modulated and receivable by *any* digital cell phone when put into the secret "test modes". Accountability of public services (police, fire, FBI, etc.) will quietly disappear as they buy new digital two-way radios. Do you think quality of police service will get better if they think the public cannot listen to them anymore? And to think, Americans used to scoff at the Soviet Union for prohibiting all but state approved radios. Truly we have become the evil.

Now the software industry is doing the same thing. Constitutional rights be damned.

So, what do we do about it?

[M-2]

('we' being 'the citizens of the United States of America' for all the foreign slashdotters.)

That's the question that needs to be looked at here. What can we, as a group, as a rising political force do to stop this? They ('they' being 'the forces of big business who want to control our minds in a way that Orwell may have not imagined at all') have managed to run this through the Congress using tremendous amounts of money that your average geek doesn't have. (The only one that DOES would be Gates, and we can be pretty sure he doesn't care either.)

Some ideas:

• It may be time for a geek-out. Every techie in America calls in protesting, and we get together in state capitols to protest. Set up booths to actually sign petitions to present to the state legislatures and to our Congressmen.
• Let's take it one step further, maybe. A Million Geek March. A firm show of what we are willing to do, to say to these people, "Not just this far and no further, but you have gone TOO FAR and we want you to step back!".
• Remember that spamming Washington is NOT a good idea - it says nothing to them. We need to seize the moral high ground and KEEP it. Maybe it's crazy, but if we can present our side of things to Congress AND the public, AND we can keep ourselves from looking like maniacs, we can take that high ground. This means, unfortunately, we may not want to let some of our more vocal friends out of the box. This is going to take a skill that many in the Open Source community do not have: Tact.

Anyone else have ideas as to how we can turn things around within the system? I'd prefer to start inside than try to break it from outside.

You're wrong - it IS the bandwidth issue.

[LordTherem]

Colleges are not ISPs, and bandwidth isn't free. They have very limited bandwidth for their userbase, often doubly hampered by halfassed attempts at upstream providers. If ANY application starts pegging their outgoing traffic at 100% 24/7, they're going to ban it or shut it down.

I spoke with the admin of a large university in upstate New York, who told me that the actual content of the traffic doesn't concern him unless someone complains about it - but if any one person or application starts using huge amounts of bandwidth, irrespective of what they're doing, he'll move to shut them down.

So long as bandwidth isn't free, Napster cannot exist in the high-speed environment of a university LAN. While I personally don't like the DMCA and would like nothing better than to see it repealed, this particular issue has nothing to do with it.

Re:Hey Katz...

[G27 Radio]

1.Katz talks about how wonderful the Net is in allowing new artists to make it around the record industries selection procedures. The whopping majority of mp3s being traded, however, are the works of the bigshot celebs who have already made it. Sure the new kids have a chance to distribute their music, but it's not as though they've suddenly found an equal market. The primary purpose of mp3s is (and always has been) to steal the latest best-selling albums so that you don't have to fork out a couple bucks for it.

Oh puh-lease. The primary purpose of MP3's is and always has been to steal the latest best-selling albums? Wake the fuck up! The primary purpose of MP3's has been to make it easier to widely distribute audio--something that big companies have had a stranglehold for a long time now.

It's no suprise that the MP3 format gets used for piracy--it's made for distributing audio! You say that "the whopping majority of mp3s being traded, however, are the works of the bigshot celebs who have already made it." I know this is probably obvious to most people but I'll take some time to explain this to you:

Local musicians commonly spent US$10 PER CD to have CD's manufactured so they'd have something to give to their fans, AT A LOSS. The big studios, OTOH manufacture billions of CD's at a fraction of the cost, then sell them in thousands of stores across the world. Now, does it really seem like much of a suprise that most of MP3's available happen to be the same music that has been the most widely available?

7.It all comes down to theft. We want to steal music that other people have spent millions to produce, and they want us to pay for it instead. We're pissed off because they're coming ever closer to preventing us from illegally copying their works. We have no right to be as righteously indignant as Jon Katz has portrayed himself

It does NOT all come down to theft. The fact is that MP3's are gaining popularity with local musicians who want a method to distribute their music without getting bent over by a major record label in the process. Stopping the distribution of MP3's is the only way for the big labels to insure their dominance. In case you haven't been paying attention, piracy by MP3 has not hurt them. The threat is music that is distributed by MP3 that is NOT pirated.

There is no music revolution. We're just trying to find better ways to steal.

God this is such a troll...you keep using the word "We" a lot, and I know that should have been an indicator early on... If you're speaking as a member of the RIAA then I apologize, you're not a troll and I applaud your honesty on this point.

Well "we", as in my group of friends, are very excited about the opportunity to use the MP3 format to distribute music globally. The fact that the MP3's we will produce in the coming month will face hurdles getting onto college campuses due to the efforts of the RIAA helps no one but the members of the RIAA.

No, without the ability for everyday people to distribute digital audio without the RIAA as middle-men, there will be no music revolution.

numb

Hey Katz...

[zpengo]

Some miscellaneous comments:

1. Katz talks about how wonderful the Net is in allowing new artists to make it around the record industries selection procedures. The whopping majority of mp3s being traded, however, are the works of the bigshot celebs who have already made it. Sure the new kids have a chance to distribute their music, but it's not as though they've suddenly found an equal market. The primary purpose of mp3s is (and always has been) to steal the latest best-selling albums so that you don't have to fork out a couple bucks for it.
2. The DMCA is not trying to redefine entertainment on the web. It is trying to reclaim what is legally theirs. Record companies spend millions of dollars signing artists and releasing albums so that they can make a profit -- this is no less noble than any other business. People have found an easy way around this, however, and they're taking advantage of it. The purpose of the DMCA is to defend against outright copyright infringement, which is what we are all doing.
3. College students don't have the ability to download mp3s onto college sites simply because the schools think it's harmless; They can do it because the schools generally don't know about it. Most schools will attempt to eliminate any type of non-official server they are aware of.
4. I hate having to repeat this, but copyright issues are not why schools are concerned. They're primary issue is with *bandwidth*. If napster didn't hog up so much space in the pipes, nobody would give a damn.
5. Free music sites did not proliferate because they piggy-backed off of educational sites where users. They proliferated because they had FREE MUSIC. Sites run off of school servers are nearly impossible to find. Go to the UC Berkeley web page and tell me where you see mp3s.
6. Katz admonishes colleges and universities for worrying more about copyright infringement than about free speech; He absolutely fails to realize that these artists' never intended that their work be given away. Free speech doesn't mean "gratis."
7. It all comes down to theft. We want to steal music that other people have spent millions to produce, and they want us to pay for it instead. We're pissed off because they're coming ever closer to preventing us from illegally copying their works. We have no right to be as righteously indignant as Jon Katz has portrayed himself.

There is no music revolution. We're just trying to find better ways to steal.

ICQ: 49636524
snowphoton@mindspring.com

Read the bill...its important!

[nullity]

The digital millenium copyright act certainely posses distinct dangers to existing leeway under copyright laws. But it also forces the law to "smarten up" about the digital world. That said, there are *good* clauses, like specifically allowing reverse engineering for compatibility. BRAVO!.

Before people snipe at it based on the above (which is certainely a valid perspective), I would highly encourage people to peruse the bill for themselves. Its long, yes, but very clear and direct as these things go. The complete text can be found online, but there are also many good abridged versions! Give it a shot....this is a very accessible and important document for all of us (even non-americans).

Sometimes I think its better to institute a clear law I agree with less...than to continue using a decrepit and unreliable set of rulings. AT least now I have some idea of the "official" stance on things. :-)

-nullity-

I am nothing