University at Buffalo - The State University of New York

Published: January 16, 2003

By DONNA LONGENECKER
Reporter Assistant Editor

A UB faculty member contends that concerns over digital piracy are the pretext for a new age of highly restrictive laws that directly threaten the public's right to information, free speech and the ability to engage in research and scholarship.

Across the country and at UB, opposition is mounting against the Digital Millennium Copyright Act (DMCA), signed into law in 1998 by former President Clinton, as well as against other proposed legislation that would forbid the manufacture of digital devices that do not contain embedded government-certified, access-restriction technology.

The entertainment and computer industries lobbied hard for the passage of the DMCA and are using it to bring suit against anyone believed to be illegally copying music and film or decoding, file-sharing and data-swapping—activities many Americans take for granted on a daily basis.

John Ringland, associate professor of mathematics, is among those leading the fight at UB to increase awareness of just how the DMCA impacts research, scholarship and technological innovation.

He has presented two resolutions to the Faculty Senate Executive Committee that call for UB's president and provost to support the Digital Media Consumers' Rights Act and efforts to amend the offending provisions of the current DMCA, as well as support alternatives to Microsoft operating systems, such as Linux, as a means for the university to retain complete control of its computer hardware and software.

This, Ringland points out, would allow researchers and scholars to retain the rights of fair use and the ability to adapt computer systems to specific research and personal needs.

"This is a critical moment in history. The moment when essentially all storage, processing and sharing of information is moving into the digital domain," says Ringland.

He says the goal of proponents of the DMCA is to radically reduce the public's rights with respect to copyrighted—and non-copyrighted—material. "This is being done by a combination of draconian new laws and restrictive new architectures for computer hardware and software," he says.

Crashing headlong into legal efforts to enforce the DMCA are recent court cases, some billed as landmark decisions, that have illustrated the reluctance of judges and juries to cooperate with the computer and entertainment industries' attempts to control user activities and the flow of information. Earlier this month, a Norwegian teen was cleared of wrongdoing when an Olso court said it wasn't illegal for him to decode a computer program that enabled him to play DVDs on his home computer instead of his DVD player.

Other notable examples include Princeton University professor Ed Felten who, under pressure from the music industry, backed down from presenting a research paper, and the arrest last year of Dmitry Sklyarov, a Russian programmer who was jailed after Adobe discovered he had developed software that could crack its eBooks Reader Software.

Publishers who use the eBooks Software can set what many consider to be highly restrictive rules for viewing published works—even works long held in the public domain, such as "Alice in Wonderland"—that prevent a computer from reading the text aloud, making copies or restricting the amount of time a reader spends viewing the work. Sklyarov was arrested when he came to the U.S. to present the results of his efforts to crack Adobe's eBook software. A federal jury found Sklyarov not guilty of violating the DMCA after he succeeded in showing that his decoding efforts enabled readers to exercise their "fair use" rights under copyright law, allowing them to make copies of ebooks for backup and transfer to other devices. Many opponents of the DMCA see this case as an important test of consumers' rights to use digital movies, images and books they legally obtain.

In a related case, the U.S. Naval Academy, responding to a letter sent to colleges and universities by the entertainment industry asking for help in stemming the tide of unauthorized file-swapping, seized 100 computers belonging to midshipmen suspected of downloading music over the Internet.

"The DMCA chills free expression, stifles learning and scientific research, jeopardizes fair use and impedes competition and innovation," says Ringland.

Copyright policies have long made exceptions for the concept of "fair use," a statutory doctrine that developed as the relationship between creators of copyrighted material and users of such material evolved through litigation and judicial decision. Most scholars are well acquainted with the criteria used to determine what constitutes fair use, which allows for the limited reproduction of copyrighted material for research and educational purposes. The primary goal of the concept of fair use is to ensure that the public's right to be informed is not infringed by copyright.

For scholars, the concern is that it may become difficult to access the information they now take for granted for use in their writing and teaching, says Hank Bromley, associate professor of educational leadership and policy, and a specialist in the social and cultural implications of computer technology.

Bromley cites as a potential issue of concern the traditional "right of first sale" that libraries depend on. "With books, the practice has been that the library buys one, then they own it and may lend it out to whomever they like under whatever conditions they like. It's theirs. When published works are distributed electronically instead, the publishers impose many conditions," he says.

"The libraries don't own their copy of the work, but merely purchase a limited license to use it. And the license generally prohibits anything that might allow copies to get around. When a book was on paper, making copies was expensive and time-consuming enough (and of poor enough quality) that publishers didn't worry too much about unauthorized photocopies of library books undermining their market for sales. But now that digital copies are essentially identical with the original, and essentially instantaneous, they're very worried—thus the restrictions in the licenses," he explains

"In general, they're attempting to move toward licenses that amount to 'pay-per-view.' It's not at all unrealistic to fear that before long, libraries may have to pay each time someone reads an article. If I want to look at it again while I work with it in preparing a related work of my own, the library has to pay again, over and over. Maybe that expense gets passed on to me as an individual, maybe the university covers it somehow, but either way, it's disastrous for my activities as a scholar," says Bromley.

One problem with the DMCA, according to its opponents, is that it makes it a crime to circumvent encrypted software/hardware to gain access to protected materials, regardless of whether the material is in the public domain or the intended use fits the criteria for fair use, Ringland points out. The DMCA doesn't outlaw the act of violating copyright, which already is prohibited by other statutes, but outlaws distributing and using technology that could be used to circumvent protection technology regardless of whatever legitimate uses the technology may have, and regardless of whether the material subsequently accessed is even under copyright protection.

As for lawmakers, says Bromley, "uninformed legislators hear how we need to prevent piracy, how the sale of copyrighted materials is one of the healthiest of our export markets, and say (to the entertainment industry) 'of course, whatever you need,' not recognizing how the recommended measures are wholly inappropriate for the nature of the problem."

"And apart from the uninformed, I imagine there's also a problem with legislators being swayed by campaign contributions from these companies," he adds.

In an effort to protect their products from copyright violations, many manufacturers have encrypted their products with surveillance technologies embedded in the hardware and software that consumers use on a daily basis, making privacy and free speech vulnerable to a variety of abuses because this technology tracks users behavior, say opponents of the DMCA.

Bromley maintains that surveillance technologies as a means of preventing copyright violations is inappropriate and based on a strategy of trying to shut down emerging forms of activity, rather than figuring out how to profit from them.

"I think one part of the problem is the effort to prevent illicit copying by imposing technical limitations on the equipment we all use. The copyright holders want to render our home electronics incapable of unauthorized copying, not seeing or not caring that doing so would also render the equipment incapable of many legally allowable copying practices—as well as most other useful functions.

"They're actually replicating the mistakes made 20 years ago by the film industry when video first came out. They viewed video as a threat to their market, thinking only about how unauthorized copying could devastate demand for the product and tried to prevent it through the same means: limiting the capabilities of VCR technology and getting legal restrictions imposed to enforce those limitations, says Bromley,

"It's obvious," he adds, that "they failed completely—but they're also lucky that they did. Home-video use is complementary to—not competitive with—theater patronage."

As with the VCR, Bromley contends that publishers of music and film now are trying to make the PC into a device limited to playback of prerecorded works purchased through official channels.

"If they had succeeded in limiting the VCR in that fashion, relatively few people would have bought them (the most common usage is for "time-shifting" TV programs to more convenient viewing times, or archiving favorite programs for repeated viewing). With a small user base, they'd never have received the benefits they have from the growth of the film-on-video rental and purchase market, and consequent theater attendance," explains Bromley.

Another piece of proposed legislation, the Consumer Broadband Digital Television Promotion Act (CBDTPA), would mandate "cop chips" in every digital device capable of copying data.

"If the CBDTPA is signed into law, it will become illegal to manufacture a computer that doesn't contain embedded control mechanisms and could make all system-level programming potentially criminal, creating serious impediments to adapting computers to specific research needs, Ringland said in a report to the FSEC.

Ideally, he says would like to see the UB administration take this issue seriously, endorsing his resolution supporting the Digital Media Consumers' Rights Act and lobbying for amendment of the DMCA, and against the CBDTPA.

"For those of us whose lives center on the use and production of information, it is extremely foolish to surrender control of information to third parties that would construct checkpoints and toll barriers between us and the information," says Ringland.

"The current situation is that a coup is being staged—led primarily by the entertainment industry and facilitated by the proprietary software industry. Their goal is to lock down information, to eliminate fair use, to create a pay-per-use society. Each type of access, each instance of access, will require authorization and payment," he adds.

Ringland's second resolution, which is endorsed by the FSEC and will be brought before the Faculty Senate at its Feb. 4 meeting, calls for the university to support open source software and open communication standards. Ringland says that pressures exist at UB for standardization on closed proprietary software (especially Microsoft) and communication protocols and formats.

"Any apparent convenience of standardizing on proprietary software is superficial, if not entirely illusory.

"In my view, a closed proprietary software infrastructure is fundamentally at odds with our academic mission, with freedom of expression and inquiry, with an open society."

Ringland says the power of Linux lies in its non-proprietary nature and the fact that it's free and easily adapted to a variety of research needs.

"Supporting open-source software at UB is a no-brainer. It's free as in freedom. It's free as in zero dollars. It provides leverage with Microsoft," says Ringland.

"The nature of information policies and infrastructure we establish now will have profound consequences for the future of academia and the future of society."