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2 Content-Disposition: form-data; name="uploaded_file"; filename="fairuse-part1.txt"
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5 Fair Use in a Digital Age (Snve Hfr va n Qvtvgny Ntr)
7 By Julian Catchen <email@example.com>
8 First part in a series.
10 In 1998, a new standard in intellectual property became law in the United States.
11 The Digital Millennium Copyright Act (DMCA) has changed the way Americans interact
12 with movies, music, software and other digital content. In the short time it has
13 been law, the act has put one Russian programmer in a U.S. jail, banned instructions
14 for reading data formats from the Internet and prevented academics from presenting
15 research to the public. The following series of articles will serve to document
16 the history of the DMCA and explore the chilling effect the slow degradation of fair
17 use rights has had on free speech in this country.
19 The idea that an artist or inventor (or more generally, any creator) has an innate
20 right to their creations has been a long-held belief of Western society. The Statute
21 of Anne first codified the idea of "copyright"into English law in 1710. The United
22 States Constitution included an explicit right of a creator to their work in order "to
23 promote the Progress of Science and useful Arts, by securing for limited Times to
24 Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
26 In 1790, the first U.S. copyright bill was passed by Congress protecting newly created
27 books, maps and charts for a term of 14 years, renewable for an additional 14 years.
28 Before 1900, prints, music, dramatic compositions and photographs would be protected
29 as well. Since then, the copyright laws have been updated more than a dozen times,
30 adding new works and extending the length of a copyright term.
32 However, copyright law does not only deal with the protection of copyright holders.
33 Authors and inventors of copyrighted works must provide fair use of their material to
34 the public. Thus, a public bargain is struck, whereby the author is rewarded with
35 exclusive royalties for their work, but the public may fairly use it, and after a
36 limited amount of time, it enters the public domain, becoming part of a public commons,
37 being owned by the society as a whole.
39 The concept of "fair use" was only a judicial doctrine until 1976 when it was codified
40 into law. But the foundation of the principle lies in a societal need for critical
41 commentary, political dissension, news reporting, teaching and any number of activities
42 that are protected by the First Amendment. It was the fair use doctrine that allowed
43 the Zapruder film to become public in order to explain one author's theory of the Kennedy
44 assassination. The fair use doctrine allows individuals to record television programs in
45 order to watch them at a later time. It was the fair use doctrine that gave Hustler
46 magazine the right to produce caricatures of Jerry Falwell in its pages. Judge Lewis Kaplan,
47 who has ruled in several significant fair use cases, referred to the fair use doctrine "as
48 a safety valve that accommodates the exclusive rights conferred by copyright with the
49 freedom of expression guaranteed by the First Amendment."
51 An important question to consider, though, is what happens to a society if that safety
52 valve is slowly closed over a number of years and by a number of pieces of legislation?
53 What do we lose as a society when our fair use rights and, hence, our First Amendment
54 rights are abridged?
56 Consider the following: in 1790, a copyright lasted for a term of 14 years, with the option
57 to renew it for an additional 14 years. In 1909, the renewal term was lengthened for a total
58 possible copyright period of 56 years. In 1976, the term was extended again to a single term
59 lasting the life of the author plus 50 years, or, if a work-for-hire (owned by a corporation),
60 the term was 75 years. Finally, in 1998, Congress passed the Sunny Bono Copyright Term
61 Extension Act, which again lengthened the copyright term to the life of the author plus 70
62 years, or 95 years if a work-for-hire.
64 The lengthening of copyrights is not the only way in which copyrights have changed. In the
65 late 1980's a new technology emerged that allowed audio to be recorded in a digital format.
66 Copyright holders feared that use of this Digital Audio Tape (DAT) technology would allow
67 massive piracy to deprive them of royalties. They were able to convince Congress to pass the
68 1992 Audio Home Recording Act which mandated a three percent tax on all DAT tape sales to be
69 distributed to copyright holders. In addition, the act specified that a technology be employed
70 in DAT recorders to prevent more than one generation of digital copying.
72 This act represents a significant turn in copyright law, as it is the first to assume that
73 all members of the public commons are essentially pirates and that a preemptive royalty tax
74 is necessary to ensure fairness in the copyright bargain. There is still a small balance
75 in this act, however, for if the users agree only to make copies of copyrighted works for
76 private, non-commercial use then they cannot be prosecuted for making those copies.
78 Even now, if you buy recordable "music" compact discs for use in your stand-alone CD
79 duplicator or your personal computer, you pay a mandatory tax on every disc bought
80 which is used to subsidize the recording industry. (Interestingly, this tax does not apply
81 to "data" compact discs for use with only a computer as computers were excluded from the act.
82 The discs are functionally identical.)
84 During the 1990s, three important international treaties would be negotiated that would
85 also significantly affect U.S. copyright law. Originating from the World Trade
86 Organization (WTO), the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement
87 made most tenants of U.S. copyright law international and created an enforcement mechanism
88 whereby countries could bring action against one another through the WTO. Coming from the
89 World Intellectual Copyright Organization (WIPO), which is an arm of the United Nations, the
90 Copyright Treaty (WCT) and the Performances and Phonograms Treaty (WPPT) updated international
91 copyright law to handle many aspects of distribution over the Internet and included an important
92 new aspect of copyright law to prevent access to copyrighted works. In 1996, the WTO and WIPO,
93 entered into an agreement to enforce the provisions of these treaties with WTO member nations.
94 In effect, all three of these treaties (and with them, most aspects of U.S. copyright law) now
95 become internationally enforceable through the WTO.
97 Finally, in 1998 the Digital Millennium Copyright Act was passed into law in order to bring
98 the United States into compliance with the WCT, the WPPT and the TRIPS treaties. The DMCA
99 creates a new type of copyright protection. Section 1201(a)(1) of the act mandates: "No
100 person shall circumvent a technological measure that effectively controls access to a work."
101 It then goes on to specify in section 1201(2)(A) that "No person shall manufacture, import,
102 offer to the public ... any technology ... that is primarily designed or produced for the
103 purpose of circumventing a technological measure that effectively controls access to a work."
104 The effect of these words is staggering. The act, for the first time, provides that if the
105 owner of a copyrighted work makes an attempt to "protect" their work with technological means,
106 then it is illegal for any person to attempt to bypass that protection. Since the act does
107 not make any exceptions for fair use of a copyrighted work, any unauthorized attempt to
108 access a work, even for traditional fair use purposes becomes illegal. As professor
109 Lawrence Lessig, of Stanford University, put it, "The DMCA outlaws technologies designed to
110 circumvent other technologies that protect copyrighted material. It is law protecting software
111 code protecting copyright." Some applications of this are in DVD movies, which are encrypted
112 with the Content Scrambling System (CSS), and electronic books, which are protected in a variety
113 of ways.
115 Further, the act does not specify what type of protection must be used, only that it be
116 an "effective" technology. However, "effective" is such a broad word, that companies
117 have begun to use trivial software technologies to protect their works. One of the
118 technologies that is now in commercial use has been around since Roman times and was
119 used to "protect" the title of this article above. While copyright law guarantees
120 access to copyrighted material for fair use, technological copyright protections do not
121 have this responsibility. The DMCA makes no exception in these technologies to guarantee
122 the rights afforded by copyright law. Lastly, there are several narrow exceptions in
123 the DMCA which are supposed to allow access for activities such as security research and
124 reverse engineering for interoperability. However, even though a person might be exempted
125 from the anti-circumvention clause of the DMCA, it is still illegal to posses or distribute
126 tools that allow access controls to be circumvented, and hence there would be no way to
127 exercise that exception to the law.
129 The Constitution of the United States created a federal mechanism to fuel the production of
130 artistic works. In doing so, a deal was struck between the holders of copyrights and the
131 American public. The public guarantees exclusive royalties to the creator for a limited time,
132 and in return, the public receives fair use access to that work, and eventually, the work adds
133 itself to the public commons where it can be utilized and built upon by future artists and
134 inventors. In practice, however, what has occurred is an extreme imbalance in the deal towards
135 the protection of copyright holders. Over two hundred years, the length of a copyright has
136 been extended nearly five-fold. The number of works protected along with their means of storage
137 and transmission were increased dramatically. The means to duplicate copyrighted works were
138 wholly taxed, implicating an entire class of individuals as "pirates." Finally, the tools used
139 to make copies and to facilitate fair use, were outlawed.
141 These acts upset the balance between copyright holders and the public so profoundly that they
142 essentially destroy the notion of fair use and with that the hope for a rich, public commons
143 in the future.
145 Because of the Sonny Bono Act, it will be twenty years before any copyrighted work enters into
146 the public domain. It is now illegal, in many cases for a blind individual to have an electronic
147 book read aloud to them by their computer. It is illegal to decode a DVD simply so that you may
148 watch a legally purchased movie on a computer running the Linux operating system. It is
149 required that you pay a piracy tax on your recordable music CDs or DAT tapes before you can
150 purchase them.
152 In the subsequent articles in this series, I will explore the effect the DMCA has had on society.
153 We will look at the case of 2600 Magazine, which attempted to report about a computer program
154 known as DeCSS, a tool that allows people to watch their legally purchased DVDs. We will examine
155 the case of Dimitry Sklyarov, a Russian programmer who was arrested in Nevada when he came to
156 this country to give a lecture on the weaknesses of Adobe's eBook Reader software. We will also
157 look at the case of Professor Edward Felton, of Princeton University, who attempted to present
158 his research on digital watermarking to a security conference. Finally, we will examine upcoming
159 laws and take a look at the future of copyright law in the United States.
161 Content-Disposition: form-data; name="uploaded_file2"; filename="list.txt"
162 Content-Type: text/plain
164 University of Washington, Seattle <http://www.cs.washington.edu>
165 Application Fee: $45
166 Deadline: December 31, 2001
167 Average for admitted students:
168 GPA: 3.70
169 GRE Verbel: 629
170 GRE Analytical: 759
171 GRE Quantitative: 778
172 GRE Subject: 785
173 Transcripts: 1
175 University of Maryland, College Park <http://www.cs.umd.edu>
176 Application Fee: $50
177 Deadline: January 15, 2002
178 Transcripts: 2
179 Average for admitted students:
180 GPA: 3.50
181 GRE: 1950
183 Carnegie Mellon, Pittsburgh <http://www.cs.cmu.edu>
184 Application Fee: $65
185 Deadline: January 5, 2002
186 Transcripts: 1
188 University of Oregon, Eugene <http://www.cs.uoregon.edu>
189 Application Fee: $50
190 Deadline: February 1, 2002
191 GRE Verbel: 50%
192 GRE Analytical: 65%
193 GRE Quantitative: 65%
194 Transcripts: 1
196 Johns Hopkins University <http://cs.jhu.edu/>
197 Application Fee: $0
198 Deadline: January 15, 2002
199 Transcripts: 1
201 Cornell University <http://www.cs.cornell.edu/>
202 Application Fee: $65
203 Deadline: January 1, 2002
204 Transcripts: 1
206 University of California, Berkeley <http://www.cs.berkeley.edu/>
207 Application Fee: $40
208 GPA: 3.00
209 Deadline: December 15, 2001
210 Transcripts: 1
212 University of Wisconsin, Madison <http://www.cs.wisc.edu>
213 Application Fee: $45
214 GPA: 3.00 (3.75 in CS courses)
215 GRE Verbel: 600
216 GRE Analytical: 600
217 GRE Quantitative: 700
218 GRE Subject: 700
219 Deadline: December 31, 2001 (December 1, 2001 for fellowships)
220 Transcripts: 1 (+1 copy)
222 Michigan State University <http://web.cse.msu.edu/>
223 Application Fee: $30
224 Deadline: December 28, 2001 (December 1, 2001 for fellowships)
225 Transcripts: 2
226 GPA: 3.2
227 GRE: 2000
229 New York University <http://cs.nyu.edu/csweb/Academic/Graduate/>
230 Application Fee: $60
231 GRE Analytical: ~700
232 GRE Quantitative: ~700
233 Deadline: January 4, 2002
234 Transcripts: 2
236 University of California, San Diego <http://www-cse.ucsd.edu/>
237 Application Fee: $42
238 Preapplication Id: 3559
239 Deadline: January 7, 2002
240 Transcripts: 1
242 Massachusetts Institute of Technology
243 Application Fee: $60
244 Deadline: January 1, 2002
245 Transcripts: 1