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    4 
    5 Fair Use in a Digital Age (Snve Hfr va n Qvtvgny Ntr)
    6 
    7 By Julian Catchen <topeka@catchen.org>
    8 First part in a series.
    9 
   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.  
   18 
   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."
   25 
   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.  
   31 
   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.
   38 
   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."
   50 
   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?
   55 
   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.
   63 
   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.  
   71 
   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.
   77 
   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.)
   83 
   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.
   96 
   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.
  114 
  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. 
  128 
  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.  
  140 
  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.  
  144 
  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.
  151 
  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.
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  163 
  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
  174 
  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
  182 
  183 Carnegie Mellon, Pittsburgh          <http://www.cs.cmu.edu>
  184 	Application Fee:  $65
  185 	Deadline:         January 5, 2002
  186 	Transcripts:      1
  187 
  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 
  195 
  196 Johns Hopkins University             <http://cs.jhu.edu/>
  197 	Application Fee:  $0
  198 	Deadline:         January 15, 2002
  199 	Transcripts:	  1
  200 
  201 Cornell University                   <http://www.cs.cornell.edu/>
  202 	Application Fee:  $65
  203 	Deadline:         January 1, 2002
  204 	Transcripts:      1
  205 
  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
  211 
  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)
  221 
  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 
  228 
  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
  235 
  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
  241 
  242 Massachusetts Institute of Technology
  243 	Application Fee:   $60
  244 	Deadline:	   January 1, 2002
  245 	Transcripts:       1
  246 
  247 
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