A gathering of experts last Friday at a University of California at Berkeley conference on the law and policy of digital rights management seemed to produce a consensus: The DMCA is being used for purposes far afield from Congress’s original intention and is doing more harm than good:
- “There has to be a way between the lunatics at the two extremes,” said Larry Lessig, a law professor at Stanford University and well-known opponent of the DMCA. “We need to build a layer of reasonable copyright law on top of this background of unreasonable extremism.”
For the most part, Lessig and others seemed to have more problems with the law than with the technology behind digital rights management, which regulates what people can do with information. The Stanford professor has created an organization called the Creative Commons to offer alternatives to strict controls backed by laws such as the DMCA. He and other experts taking part in the two-day policy debate, even those sympathetic to the plight of copyright holders, could cite several cases where the DMCA has been used to exert control in a way never intended by the creators of the law.
On Friday, a Kentucky court granted a preliminary injunction to Lexmark International against a company that makes generic replacement cartridges for Lexmark printers. The court found that a chip in Lexmark cartridges that identify the refills as “official” could be protected under the DMCA, and thus, cannot be cloned.
Misapplication of the law
Even RealNetworks, a company that has a digital-rights management system for protecting video and audio delivered over the Internet, found fault with the ruling. “This is a travesty,” said Alex Alben, vice president for the Seattle-based firm. “This is not what we intended when we created the DMCA.”
The Lexmark case is the latest in what many legal experts and technologist argue is a misapplication of the law.
For example, security researchers have many more hurdles to overcome under the DMCA to publish research, said Joseph Liu, a law professor at Boston College Law School. Researchers can circumvent protections in order to study the security measures under an exemption of the DMCA, but the exemption favors those researchers with a good academic pedigree. Moreover, the researcher has to inform the copyright holder of the research and requires predisclosure of results, which could lead to censorship.
“There are so many flaws in the statute that you can censor yourself more than you really need to” because of the fear that you will be sued, Liu said.
Another speaker, Princeton University computer science professor Edward Felten, experienced such fears firsthand when the Recording Industry Association of America told him that publishing results that showed the weaknesses in several secure digital music candidate technologies could violate the DMCA.
….Until copyright policy tilts back to the populace, people will likely resist such systems, said John Erickson, a system program manager for Hewlett-Packard Labs, who spoke on one of four panels Friday. “We are taking the human being out of the equation…and putting a chastity belt on technology,” he said.
He stressed that laws and technology, such as digital rights management, need to take constitutional issues into account.
“There is not social governance of what goes into a rights management language,” he said. “If we are to have the regimes, we need to figure out how to have people in the loop.” [CNET]
And technology is the last thing you want to put a chastity belt on.