New Yorkers For Fair Use

© Copyright for the Digital Millennium
www.nyfairuse.org - Why the DMCA must be repealed.

www.nyfairuse.org

Why the DMCA must be repealed.

What is the DMCA?

The Digital Millennium Copyright Act is a law passed by Congress in 1998. The DMCA was lobbied for by the large movie and music and book and magazine companies. These corporations claimed to be afraid that the Internet would lead to massive distribution of popular movies, recorded music, books, and magazines without any payment to the copyright holders. Under the old pre-DMCA copyright law, buyers of books, albums, and movie tapes had many rights:

1. You may make copies for your own use.

2. You may lend books, albums, and movies to your friends. You may read a book aloud with your children. You may invite friends over to dance to the music of your album. You may view your movie with friends. You may stand in front of a room full of students and read the book, and you and the students may talk about the book.

3. If you are a library, you may buy one copy of a book, and lend it out for free to anyone with a library card. You may do the same with an album and also with a movie.

4. You may make copies of parts of the book, the album, and the movie, in order to discuss it, to make fun of it, and even incorporate the part in a new work.

5. You may sell the book, album, or movie to anyone you wish.

6. Any time you want to read the book, listen to the music, view the movie, you may, without paying one cent more to the copyright holder. You may do these things as often as you want.

We call these traditional rights "Fair Use". But under the DMCA, if the book, the music, the movie are in "digital form", you have no Fair Use rights:

1. You may not make copies for your own use.

2. You may not lend books, albums, and movies to your friends. You may not read a book aloud with your children. You may not invite friends over to dance to the music of your album. You may not view your movie with friends. You may not stand in front of a room full of students and read the book, and you and the students then talk about the book. You might be allowed to do some of these things, but only if you get special permission, or else pay the copyright holder.

3. If you are a library, you may not buy one copy of a book, and lend it out for free to anyone with a library card; rather, you must pay the copyright holder every time the book is lent out.

4. You may not make copies of parts of the book, the album, or the movie, for any purpose, unless you get special permission from the copyright holder.

5. You may not sell the book, album, or movie to anyone ever.

6. Any time you want to read the book, listen to the music, view the movie, you may not, unless you pay the copyright holder.

What effect will the DMCA have on free public libraries and public schools?

The Association of American Publishers has declared that they plan to close down all free public libraries. Yes, I know, this sound too crazy, but the AAP has repeatedly stated in public that this is their intention. They will use the Digital Millennium Copyright Act to do so. Further, the AAP would like to have all use of school library books metered so that they can get paid every time a child borrows a book. Now, the DMCA does not give publishers the right to such unfair over-charging if the book is a paper and ink book. But it does if the book is in digital form. So the large textbook publishers are pushing hard to get paper and ink books out of all schools. Indeed, New York University Dental School now requires that all students use only digital textbooks, so that the publishers and the school can charge them more than they could if the books were paper and ink books. The publishers want to do the same for all public schools. That way the publishers get paid more, the children cannot freely use the school library, and the cost of the public schools goes up, as what they offer goes down. Poor children will no longer have full use of public libraries, nor of their school libraries.

What effect will the DMCA have on the personal computer?

Today, many people have a personal computer at home. Usually this computer is connected to the Internet, and is used to send and receive mail, to surf the Net, to listen to music, to find information, to do many things, and even, sometimes, to play movies. Today your home computer is something that you control. No one is watching you when you use it. No publisher, and no secret police. The DMCA, with further legislation proposed by Senator Hollings, and supported by the Association of American Publishers, the Recording Industry Association of America, and the Motion Picture Association of America, will end your right to private use of your computer in your own house. This proposed law would require every personal computer sold to have built-in hardware and software whose only purpose is to spy upon everything you do on the computer. Once again, this sounds unbelievable, but the movie and record industry associations have already tried to get such spy stuff into your computer. Last year the attempt was narrowly defeated when programmers around the world found out about it. They will try again this year, and this time, if the Hollings bill passes, they will win. That means, that all personal computers sold after a certain date will have spy stuff in them. It will be a federal criminal offense to attempt to disable the spy machinery. Why do the big book publishers, the big popular music companies, and the big movie companies want to put this spyware into your computer? Because the spyware will allow them to charge you a fee every time you read a book, listen to some music, watch a movie using your computer. They also want to know if you try to make a copy of a book, album, or movie, because under the DMCA you are not allowed to do so.

What effect will the DMCA have on the Internet?

Under old copyright law, a copyright holder would have to go to court and get a court order to shut down a web site that might be infringing copyright. But under the DMCA, a single letter from the copyright holder to your Internet service provider will result in your site being taken down immediately, whether or not any court later finds you in the wrong. No evidence need be presented to any court, nor to any law enforcement agency. This new law has already been used to take down sites that some large corporation does not like.

The DMCA goes further though. The DMCA outlaws open public discussion of how to copy files on your own computer. The excuse here is that such discussion might lead to copyright infringement. The DMCA makes it a federal criminal offense to offer for sale utility programs to copy files that might be "copy protected". If old pre-DMCA copyright law were like the DMCA, then sale of paper, pencils, pens, ink, cameras, and copy machines would be a federal offense also. At the time the DMCA was passed many in Congress and also outside Congress were concerned that this provision of the law would be used to suppress free speech and free market competition. The supporters of the DMCA gave assurances that such use would never be made of this absurd part of the DMCA. Well, in July 2001, Dmitry Sklyarov was arrested, and later indicted on five counts of violating the DMCA. If convicted he might have gotten twenty-five years in prison. His offense: a company he works for sold a program to allow you to copy certain "copy protected" files from one computer to another. The program checks, as best it can, that the user of the program has bought and paid for the files being copied. (See note below on the present disposition of the Dmitry Sklarov case.)

But the DMCA goes yet further. Today all movies on DVD disks sold by the major movie studios are "copy protected". Under the DMCA, this gives the movie studios the right to tell you that you may view the movie only by using certain programs licensed by the DVD Copy Control Association. Now for some operating systems used by millions of people around the world, such as GNU/Linux, there is no licensed movie viewing program. But programmers have written movie viewing programs for these operating systems. The DMCA gives the movie studios the power to harass anybody who puts up a web page telling where these programs may be obtained. Right now several people have been hauled into court by the MPAA for just that. Such court cases cost millions of dollars to fight. So the MPAA can effectively stop competition in the market for movie viewing programs, and it can even effectively stop newspapers from reporting even the existence of such possibly cheaper and better viewing programs. Now why does the MPAA want such power? Because without it, you would still have your Fair Use rights to view at your pleasure, whenever you want, a DVD movie that you have bought and paid for. Under the DMCA and the Hollings Act, you would have to pay a fee every time you wanted to view the movie.

Note on the Dmitry Sklyarov case:

Today Dmitry Sklyarov has been released from jail. He is free and he is back home. His arrest and indictment outraged so many people that demonstrations were held in scores of places around the world.

The United States Department of Justice has now, apparently, backed down from trying to get Sklyarov in prison, and the company he works for was found not guilty in a jury trial. At no time was anyone accused of copyright infringement in relation to this case.