How copyright became controversial

摘要

How did copyright become controversial? In a phrase, the DigitalMillennium Copyright Act (DMCA). Although many of legalcontroversies that have swirled since its October 1998 passagetrace their roots to other elements of copyright law, the DMCAcreated a new feature in copyright law that has crystallized why somany academics, librarians, computer users, and technologyentrepreneurs object to what they regard as the overreaching natureof copyright law.>This signal feature is the ban on individuals crackingencryption codes used by content owners to restrict access todigital works on which they hold copyrights. Now encoded in Section1201 of the Copyright Act, the statute reads: "No person shallcircumvent a technological measure that effectively controls accessto a work protected under this title." (17 U.S.C. 1201(a)(1)(A))The definitions of those terms are broad enough to bar almost allunauthorized decryption of content. Subsequent language in thesection also prohibits the manufacture, release,or sale ofproducts, services, and devices that can crack encryption designedto thwart either access to or copying of material unauthorized bythe copyright holder.>In other words, for the first time in history, it isn't thecopyright violation that was the crime. It is the creation of thetechnological tools to violate copyright that became the crime.>The law germinated from a 1995 "white paper" drafted by BruceLehman, the first patent office chief and intellectual propertyguru in the Clinton administration. Heavily supported by copyrightholders, the key rationale behind the white paper was that contentowners would be unwilling to put their content in digital form wereit not for new laws against those who defeat the digital locks theyplace on their products. The anti-circumvention concept gainedmomentum in 1996 when it was endorsed in a World IntellectualProperty Organization Copyright Treaty. It was subsequently adoptedas DMCA's Title I, the "WIPO Copyright and Performance andPhonograms Treaties Implementation Act.">Critics of current copyright law point to many expansions in itspower over the past decade. Among the more recent measures are theDigital Performance Right in Sound Recording Act of 1995 (creatinga new copyright in digital music performances), the No ElectronicTheft Act of 1997 (eliminating non-commercial use as a defenseagainst copyright infringement), the Sony Bono Copyright TermExtension Act of 1998 (adding 20 years to the already-lengthy termsof all copyrights), portions of DMCA mandating new royalties fordigital music performances, and the Digital Theft Deterrence andCopyright Damages Improvement Act of 1999 (stiffening penalties forinfringement). There are a few measures that arguably limit thepower of copyright holders, including the Fairness in MusicLicensing Act of 1998 (granting a limited exemption from musiclicensing for food service and drinking establishments) andelements of DMCA that limited Internet service provider liabilityfor copyright infringement if they comply with procedures to takedown allegedly infringing material from Web sites they control.>Some of those changes in law are directly at issue in currentcopyright controversies, such as the debate over extendingcopyright terms --- a challenge to Congress' authority overcopyright law that has been accepted by the Supreme Court --- andwhat rates should be paid by Internet radio stations for the rightto stream digital music over the Web. Other issues, like what to doabout the free digital music Web site Napster and its manysuccessor clones, delve into more fundamental questions: howfile-sharing technologies can be held liable for contributing tothe copyright infringement of their users, and whether users of atechnology have a "fair use" defense against charges ofinfringement.>Yet it is the DMCA's anti-circumvention prohibition --- whichhas been upheld by the 2nd Circuit Court of Appeals ---that is likely to have more s