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Fair use is dead

The Digital Millennium Copyright Act stomps on constitutional fair use provisions.

An April 24th New York Times story underscores the need for someone to challenge the constitutionality of the Digital Millennium Copyright Act (DCMA).

The story describes the Recording Industry Association of America’s (RIAA’s) threatened lawsuit against Princeton University computer scientist Edward Felten. Felten had discovered a way to circumvent a music-industry copyright protection scheme and planned to present his findings at an academic conference. The RIAA believes the findings violate the DCMA in a similar way that the famed DeCSS technology did.

Felten placed himself in the RIAA’s crosshair when he and his team, which includes scientists from Xerox Park and Rice University, participated in a competition last year sponsored by the SDMI Group to test the security of a digital music copyright system. Though Felten’s team cracked the code and won the competition, it declined to publish the findings for fear of violating the DCMA.

Now Felten wants to present his work to his colleagues at the Fourth International Information Hiding workshop, which began Wednesday in Pittsburgh. Information hiding, or steganography, is the science of hiding data within public works, such as digital watermarks. Felten’s work is of vast interest to his colleagues in the field because it not only shows weaknesses in the digital music copyright system, but also it reveals important methods to test the validity of similar systems in the future.

If the RIAA is successful in blocking important scientific work from seeing the light of day, it will have several rather nasty consequences for everyone related to the computing industry. First, Felten’s work underscores the weakness in the industry’s scheme. The RIAA should see this as a service, similar to ethical hacking, which proves that a better standard needs to be developed. If Felten and his team could do it, it’s only a matter of time before other less honorable types will crack the code and it will become useless.

Second, what about free speech? Felten has every right to publish his scientific findings, law or no law. The fact that the law would stifle innovation is proof that it is bad law. When a law resembles pre-Renaissance Church dogma prohibiting scientific investigation, it should be scrapped.

Third, and most important, this is just one of a lengthening line of cases in which the DCMA is used to snuff out fair use. Scientific progress depends on a balance between copyright and fair use. It is clear that the DCMA disrupts this balance, and the above consequences follow when fair use is stamped out.

But the best argument against the RIAA and the DCMA comes from Mark Oppenheim, the head of the litigation department for the RIAA. “These is a line that can get crossed, and if you go further than academic pursuit needs to go, you’ve crossed the line and it’s bad for our entire community,” Oppenheim was quoted in the New York Times. “Not just the artists and content holders, it’s everyone who loves art, and it’s also bad for the scientific community.”

Questionable grammar aside, this perspective is eerily similar to the Church’s excommunication and house arrest of Galileo. My questions are, who draws that line and where is it drawn? Does some industry consortium draw the line out of its own corporate interests, lobby Congress to get the line made into law, and push the law to the hilt? Or do judges decide through careful consideration of legal precedent? The latter has worked for more than 200 years. Why all of a sudden are we forced to adopt the former?

James Mathewson is editorial director of and ComputerUser magazine.

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