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DMCA-FTA Complications

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New Free Trade Agreement with Singapore would lock in most ass-sucking aspects of DMCA, writes law student:

    On May 6, President Bush and Prime Minister Goh of Singapore signed the U.S.-Singapore Free Trade Agreement (the “FTA”).

    ….It is the first international trade agreement to demand that the signatories implement anti-circumvention provisions similar to those of the hotly controversial Digital Millennium Copyright Act (“DMCA”).

    By pursuing anti-circumvention measures in a bilateral trade agreement, the Bush Administration had taken a new step in the progression by which the ownership and use of intellectual property have been increasingly politicized in recent years.

    This step will have international, as well as domestic consequences: If Congress approves the FTA, it will not able to alter the DMCA without violating its obligations to Singapore.

    ….The DMCA prohibits the circumvention of technological measures that effectively control access to a copyrighted work. For instance, it prohibits the use of software whose only purpose is to thwart “lockware” or encryption meant to protect copyrighted material – such as DVDs, eBooks, or music.

    The DMCA additionally prohibits the manufacture of, and trafficking in, such software – and other types of technology that are “primarily designed or produced for the purpose of circumventing a technological measure” controlling access to a copyrighted work.

    ….while an English professor might photocopy a few pages of a book for her class without risking liability, a music professor will risk liability under the DMCA if she cracks the protections of an MP3 in order to sample a few seconds of it for discussion in her music class. Both are fair uses, but under the DMCA, the latter is apparently illegal.

    Two bills pending in the House would resolve any ambiguity, making clear that circumvention of digital locks is legal for fair use or other noninfringing uses.

    ….in Congress, at least, the debate on the FTA is likely to be limited. The FTA was negotiated by the President under the Trade Promotion Authority (TPA) – formerly called “Fast Track” authority – delegated to him by Congress. Accordingly, Congress may only consider the FTA as an entire package – voting up or down on it as is, rather than considering amendments.

    ….That’s railroading by the copyright industries, not democracy.

    ….If the FTA is ratified, the judiciary will be out of options when it comes to ameliorating the effect of the fair-use-stifling DMCA. Congress will then have only one option: vote to override the treaty, a complex and wide-ranging trade agreement that regulates commerce between two nations.

    ….In sum, the passage of the FTA would tie both the judiciary’s and Congress’s hands to protect consumers’ long-established right to fair use. Unless Congress forces the President to go back to the drawing board and renegotiate the FTA to recognize fair use rights, both the FTA and the DMCA are likely to be set in stone for a long time to come – to the advantage of the copyright industries, and the detriment of free speech and fair use. [FindLaw]

Tell it, sister. This is a very important matter because the DMCA is so obviously flawed in preventing citizen action to exercise fair use – to “double-lock” these provsions ito place would be a crime.

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About Eric Olsen