 this software application on the grounds that such a device would lead to piracy (even though no evidence was tendered of actual use of DeCSS in the service of DVD piracy). The Court dismissed the fact that there might be legitimate fair use reasons for copying all or part of a DVD film. The Court took this position even though an earlier Supreme Court decision, before the DMCA, – Sony v. Universal Studios, had held that a device could not be found in violation of the Copyright Act if it had substantial other non-infringing uses. Thus, simply because VCRs, CD-Burners and photocopiers can be used for infringing purposes does not mean they have been outlawed.
- Felten v RIAA: in this case, Professor Edward Felten of Princeton University, was threatened with a lawsuit by the Recording Industry under the DMCA if he revealed his findings of security flaws within the Secure Digital Music Initiative (SDMI) at an IT security conference. He later sued the RIAA for a declaratory judgement to clarify his rights to freedom of expression. The RIAA retracted its specific legal threat so Felton’s case became moot, but the shadow hanging over freedom of scientific expression remained.
- In U.S. v. Sklyarov, Dmitri Sklyarov, a Russian computer programmer was arrested and threatened with criminal prosecution for making the ‘Advanced e-book Processor’ (AEBP). (He was later released but the company he works for is still facing charges.) The AEBP is a tool, which translates e-books from Adobe’s e-Book format to Adobe’s Portable Document Format (PDF). This translation process removes the various restrictions (against copying, printing, text-to-speech processing, etc.) that publishers can impose on e-Books. The program is designed to work only with e-Books that have been lawfully purchased from sales outlets. The Advanced e-Book Processor allows those who have legitimately purchased e-Books to make fair uses of their e-Books, which would otherwise not be possible with the current Adobe e-Book format, such as printing an e-Book on paper or having a computer read an e-Book out loud using text-to-speech software. The latter is particularly important for visually impaired individuals.
These judicial interpretations of the DMCA indicate that in a conflict between new technological protection measures for copyright material and new uses enabled by new technology, it is the new uses which will lose out, even to the point that those who create devices with dual-uses (both ‘fair’ and infringing) may find themselves the subject of a criminal prosecution.
Another example of the disadvantages, or even dangers, of technological protection measures overriding exceptions appears in the EU Copyright Directive, Article 6.4. This allows the governments of EU Member States to intervene, in the absence of voluntary agreements between users and rights owners, to enable a beneficiary of an exception to benefit, but it is effectively negated, as the Directive does not allow intervention if a contract exists. As there is likely to be massive online contracting on the Internet with most terms and conditions being imposed and not negotiated, the value of governments intervening to enable exceptions has the practical effect of being limited to the offline environment. In any case, such intervention takes up valuable time and effort and so is likely to be little used by consumers.
The emerging licensing environment
In addition to intellectual property laws and the increasing use of digital rights management technology, contractual licensing also shapes the digital environment and is being used to limit user rights. ‘Unlike paper materials, digital information generally is not purchased by consumers or the library; rather it is licensed by the library from information providers. A license usually takes the form of a written contract or agreement between the library and the owner of the rights to distribute digital information.’
Licenses for libraries frequently take one of three forms: ‘standard-form’ paper licenses,‘shrink-wrap or ‘click-through’ licenses. In most cases