The U.S. Copyright Office has narrowly defined when online users can legally circumvent copyright protection, and critics complain that it went too far in protecting content providers' rights.
Drawing from a broad range of options, the agency two weeks ago ruled that users could legally bypass copyright-protection technologies under only two specific circumstances. They can freely decrypt lists of Web sites collected by filtering software in order to see what sites the software is really blocking. And they can circumvent copyright protections when access software is malfunctioning and unintentionally keeping out potential users.
The Copyright Office's ruling was required by the Digital Millennium Copyright Act (DMCA), which Congress passed in 1998. That law lays the groundwork for copyright protection online. Critics of the law, including the House Commerce Committee and the Clinton administration, were concerned that it went too far in protecting content providers' copyrights at the risk of eliminating "fair-use" rights.
Fair-use rights allow users, particularly educators and librarians, to make one copy of protected content-book, article, TV show, movie, song-for private, individual use. In a February filing on the inquiry, Time Warner described the doctrine: "[A] fair-use defense might allow a user to quote a passage from a book, but it does not follow that the user is allowed to break into a bookstore and steal a book."
When the DMCA became law, the House Commerce Committee wrote, "[T]he Committee is concerned that marketplace realities may someday dictate a different outcome, resulting in less access, rather than more, to copyrighted materials that are important to education, scholarship and other socially vital endeavors."
A strict anticircumvention law, the committee reasoned, could give content providers the legal protection to require users not just to pay to download one copy of a copyrighted work, but to pay every time they wanted to look at or listen to that work.
That concern was expressed again by committee member Rep. Rick Boucher (D-Va.) last week after the Copyright Office published its decision. "This disappointing decision has moved our nation one step closer to a 'pay-per-use' society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers," he said. "There is little doubt that the 107th Congress will consider proposed revisions to the [law]."
The Clinton administration weighed in with its concerns just before the agency was due to release its decision: "[The National Telecommunications and Information Administration] believes that implementation of far-reaching access-control technologies without carefully drawn exemptions would not only invert 200 years of judicial interpretation regarding the scope of protections given to copyright holders, but also eviscerate individual scholarship and the notion of free inquiry," wrote Gregory Rohde, assistant secretary of Commerce and head of NTIA in a letter to the Copyright Office in late September.
An NTIA spokesman said the agency's views hadn't changed in light of the Copyright Office's decision, and NTIA did not say whether it agreed with the decision after its release.
Outside the government, corporations continued to fight with academics over the issue, just as they did while policymakers were writing the law.
Time Warner told the Copyright Office last February that the new law is designed to "protect the copyrighted works against unauthorized uses. Anyone wanting to make 'fair use' of a copyrighted work need only.buy or rent a copy, subscribe to a transmission thereof or borrow a copy from a library."
Academics and libraries are concerned about fair-use harm.