In the golden age of copyright only a few years ago, the old adage "good fences make good neighbors" held true: Copyright laws and fair use doctrine created reliable boundaries of acceptable behavior. Copyright holders and copyright users had reached an accommodation. Fair use met the needs of each, allowing users of copyrighted material to reproduce materials in certain situations and also encouraging copyright owners to innovate by protecting against unlimited copying.
And then one day (well, over the course of a few years, actually), digital technology upset this balance by providing users with the ability to obtain data and create multiple copies at almost no cost of time, money, or effort. Industrial interests were threatened by the independence that consumers had gained through digital and Web technology. They longed for the days when they were highly valued and highly compensated. When worthy adversaries like Napster appeared, they filed suit. And when their interests were violated they lobbied vigorously for protection, proposing legislation such as the Digital Millennium Copyright Act (DMCA) and the Uniform Computer Information Transactions Act (UCITA). DMCA became federal law in 1998, while UCITA has followed a more circuitous path through the state legislatures. But do the DMCA and UCITA merely provide traditional protections to copyright holders of digitized and Web content'? Or do they, in fact, extend the power of copyright holders beyond previous bounds and enc roach on the rights of the consumer?
Act I, Scene I: Back in the Day
Fair use balances the rights of copy right owners (authors, music publishers, movie studios, etc.) with those of users of copyrighted material (researchers, students, journalists, the public). It permits reproduction and other use of copyrighted material for certain purposes, such as research, criticism, and teaching, and under certain circumstances. The fair use guidelines that appear in the copyright law were not always so formally codified; they were built up gradually out of case law. In 1976, the last time copyright law was significantly revised (prior to the DMCA), these guidelines, which govern fair use decisions, were recognized as part of the law. However, enshrining fair use guidelines in USC (United States Code) Title 17 has not by any means made deciding fair use clear-cut. Plenty of room remains for interpretation. In fact, over the years, the Supreme Court has heard more cases involving fair use than any other area of copyright law. (1)
In days of yore, in the print/analog world, a sort of "fair use equilibrium" had been achieved. Both copyright owners and users generally recognized what was permissible. Guidelines governing decisions about fair use pose four questions, with each answer tilting the balance either for or against fair use. The resulting fair use "score" guides the decisions of researchers, students, librarians, journalists, and other users of copyrighted material. And, if an infringement suit is brought, the courts consider this score in making their determination.
The four questions of the fair use test are:
1. What is the "purpose and character" of the use? Higher points for educational, lower for commercial.
2. What is the nature of the work? Higher points for nonfiction, lower for fiction; higher points for published, lower for unpublished.
3. How much of the copyrighted work is being used? Higher points for brief excerpts, lower for whole chapters.
4. What is the effect of the use on the market for the work? Higher points for spontaneous classroom use of out-of-print material; lower for assigned reading from an in-print textbook.
Act I, Scene II: Star-Crossed User Smitten with MP3, Exhibits Tragic Lack of Judgment ... and Seals His Fate?
While these guidelines worked well with textual information, newly available alternative formats have influenced learning styles. Our patrons have become more visually oriented and increasingly demand multimedia materials. This unbalancing act has drawn users of copyrighted information into collision with the bewildering complexity of copyright as it applies to multimedia; patched together as a series of exceptions to the unified theory of text-based copyright, the copyright rules for multimedia works encompass a mind-boggling array of concepts that include reuse fees, performance, and synchronization rights. While this is great news for intellectual property lawyers, it is bad news for the average (typically pre-adult) user attracted to multimedia and disinclined to pursue proper permissions for this class of works (or for anything else). Have the stars conspired to doom this type of user to a career of infringement? And will multimedia copyright issues, previously a special case, become the norm in copyrigh t disputes?
Act II, Scene I: All Are Punished, Napster Dude Terminated with Extreme Prejudice
Unfettered consumer access to perfect digital downloads of popular music and film files, along with a wealth of available decryption software, coincided with an upswing in interest in these products. Loss of control over these lucrative properties translated into lost income for copyright owners--an unprecedented incentive to seek redress. The results include lawsuits that have halted Napster, and lobbying efforts that have yielded the DMCA (in particular, the anti-circumvention measures that have become section 1201 of the USC), and UCITA.
What is circumvention, as the DMCA defines--and prohibits--it? Simply put, it's "hacking," a word that exudes illicit connotations. However, under the DMCA definition, any use or downloading of software, any playing of DVDs, any perusing of books is "hacking"--in other words, what you or I would call "gaining access." (Look, Mom, no innuendos!) In the old days, no special talent or equipment was needed to "hack" into a book you hadn't bought; if a friend lent or gave it to you, you just read it--a perfectly legal act under the now embattled doctrine of first sale. In the digital world of the DMCA, you may need a password to open that book, and there may even be technology-imposed limitations on who can use that password. You may not be able to access your friend's e-book, even if he or she legally bought the copy and voluntarily lent it to you.
While a computer-savvy user may be able to bypass the e-book's password protection, this circumvention of access-control measures placed on copyrighted works is precisely what is proscribed by Section 1201--the so-called heart of the DMCA. Even if a fair use of the work is intended, this legal use will have been preceded by an illegal act of circumvention. Under the DMCA, merely including on your own Web page a link to a Web site containing circumvention-enabling decryption software has become a prosecutable act, as in the case of Universal v. Reimerdes (the New York 2600/DeCSS case). (2)
Historically, the use of information, not the means of information distribution or consumption, has been regulated. For example, under copyright law, the sale of a photocopy of an entire book is an infringement, but sale of photocopy machines has never been regulated, despite their potential contributory role to such a crime; the same reasoning was applied to VCRs. ("Machines don't infringe copyright--people do!") By regulating the devices and software the people use, the DMCA actually regulates access to information, rather than regulating how a consumer uses that information. And restriction or denial of access may be made without regard to whether or not an intended use would be lawful. Some legal scholars, prompted by the DMCA anti-circumvention provisions' regulation of information through technology control, consider this departure from prior precedents of copyright law a venture into "paracopyright." (3)
And are technological restrictions permitted to outlast the term of the copyrighted material being "protected"? After material on a technology-protected CD has passed into the public domain, the technological measures restricting its use may still be active. And although this is only a problem if there are no paper copies, content in one format (e-books) tends to displace the same content in another (traditional books)--with the added downside of reduced rights of access and reproduction. And so dies the dream of free and unlimited access.
Act II, Scene II: UCITA, New and Unimproved, and Troubles Mount
If the DMCA has been the law of choice for irate copyright holders in federal court, then a related piece of legislation has found some success at the state level: UCITA. In the early 1990s, in response to complaints by software vendors that their products were not fully protected under existing state commercial law and federal copyright statutes, the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) began drafting Article 2B, a new article of the Uniform Commercial Code (UCC). This article would address challenges to commercial law enforcement of digital information product protections. However, as the draft became increasingly skewed in favor of software vendors and against software consumers, ALI withdrew its support. The NCCUSL decided to push ahead with stand-alone state contract legislation that mirrored the provisions of Article 2B. Thus, UCITA was born.
UCITA, the Uniform Computer Information Transactions Act, is a proposed state contract law that would define licensing requirements for computer information transactions. UCITA expands enforceability of software licenses and contains new limitation provisions that could be included in such licenses. Software, online databases, Internet service providers (ISPs), and many other types of computer information products and services would fall under UCITA regulation.
One aspect of UCITA that concerns librarians is how this law would support non-negotiated licenses. For example, while you are installing some new software, a license agreement pops up that includes all the license limitations that you must agree to before using the software. By clicking on "I Agree" when installing a piece of software or using a database, library staff or patrons may be surrendering their fair use rights. These "shrink-wrap" or "click-wrap" agreements are considered "non-negotiated" because customers are only able to view them after they have bought, opened, and installed the software. Users (including librarians) have no chance to examine the licensing provisions before buying. If consumers had a chance to compare license agreements among competing software packages, it might affect their purchasing decisions. A shrink-wrap software license might include a provision requiring product reviewers to obtain the approval of the software vendor, thus enabling the vendor to limit product use, eve n for purposes of review or criticism. In the past, courts have often refused to uphold the license provisions in shrink-wrap agreements; however, UCITA makes these licenses enforceable by the courts. And since some provisions of UCITA conflict with federal copyright law, librarians or other information consumers charged under UCITA could find themselves in the awkward position of having to defend their federal rights from encroachment by a flawed state commercial law.
UCITA allows the inclusion of programming code in products that would enable a vendor to automatically disable or restrict access to the product if a licensing violation were suspected. And while service could be suspended without benefit of a court order or official legal notice to the user, UCITA would also protect the vendor from consumer litigation seeking damages to recover costs associated with such loss of product service. Librarians are rightly concerned with possible loss of access to important products without prior notice or due process.
Act III, Scene I: As the World Turns, the Aggrieved Take Arms Against the Opposition
Over the past year, UCITA has met with plenty of opposition in its bid to be accepted in all 50 states; so far, only Virginia and Maryland have ratified UCITA.
Anti-UCITA forces in other states have successfully defeated the proposal where it has been submitted to legislators. Recently, the Attorneys General of 32 states published a letter that termed UCITA "fundamentally flawed" and suggested that NCCUSL abandon the legislation. (4)
In response to criticism from anti-UCITA groups, NCCUSL decided to revisit the most controversial sections of UCITA. The Standby Committee of NCCUSL accepted and reviewed 70 revisions to UCITA submitted by librarians and other opposition groups. From these, the committee developed amendments. (It is important to remember that these are only recommendations; the NCCUSL may ultimately decide to reject any or all of them.) Yet these amendments do not appear to be enough to salvage the law in the eyes of UCITA's opposition. According to the American Library Association's Washington Office, the 19 amendments do little to solve librarians' problems with the law. (5) The NCCUSL Standby Committee refused to add language to UCITA that would exempt libraries from mass-market, non-negotiated licenses that limit libraries' traditional fair use actions. Instead, the committee only provided a narrow exception to UCITA that would allow libraries to donate or transfer software only to public libraries, elementary schools, or secondary schools; software would have to be transferred with the computer on which it resided, in practical terms preventing any interlibrary loaning of the material. Many issues of interlibrary loan, distance education, and resale (through library materials sales) would still be subject to regulation by licenses limiting fair use activities. Industry groups and consumer protection groups also contend that the amendments do little to address their concerns with other sections of UCITA.
Reacting to the act's built-in biases toward digital information vendors' interests, many groups have banded together to block passage of UCITA; opponents include librarians, professional engineering and computer science associations, insurance companies, and consumer protection organizations. As the NCCUSL is likely to continue to push for adoption of UCITA by other states in upcoming months, those opposed will need to remain alert and ready for action. To monitor UCITA's progress in each state, visit the following Web sites:
UCITA: State Contract Law Intersects Federal Copyright Law by the American Library Association (http://www.ala.org/washoff/ucita.html). This ALA Web site includes updated information on UCITA legislation in all 50 states.
AFFECT: Americans for Fair Electronic Commerce Transactions (formerly 4cite) (http://www.affect.ucita.com). This is a Web site of organizations representing the concerns of various interest groups opposed to UCITA.
Uniform Computer Information Transactions Act (UCITA) from the Association of Research Libraries (http://www.arl.org/info/frn/copy/ucitapg.html). Look here for a list of articles and letters that follow the history of UCITA and Article 2B.
Act III, Scene II: The Price of Freedom Is Eternal--Well, at Least, Continued--Vigilance
When the curtain comes down on our drama, will there be consideration for the rights of all? As the action continues, we spectators are invited to mount the stage and join the players, to take action that will influence the outcome. In 3 years, the Librarian of Congress is mandated to make a report on the DMCA "to assess whether the implementation [of the provisions of Section 1201] of technological protection measures that effectively control access to copyrighted works is adversely affecting individual users' ability to make lawful uses of copyrighted works." (6) As the comment period approaches, it will be very important to keep abreast of alerts and additional information posted by library organizations and other watchdog groups. But don't forget about these issues during the next 2 years. If your patrons have difficulties making fair use of material that is "locked up" by access control measures, make notes about each case and keep them handy. When the time comes for comments, ALA and other groups will w ant specifics of how users are "adversely affected."
UCITA and the DMCA represent a two-pronged assault on our ability to access copyrighted information. And while they may not represent the only threats to our right to information, they are ones that we can do something about!
(1.) Nimmer, David. A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 703 n.158 (2000).
(2.) Electronic Frontier Foundation, DeCSS Case to Be Reviewed by Appellate Court: Free Speech on Trial in DVD Fair Use Case (April 26, 2001) at http://www.eff.org/IP/Video/MPAA_DVD _cases/20010426_eff_appeal_pr.html.
(3.) H. Rep. No. 551, Pt. 2, 105th Cong., 2d Sess. 24 (1998).
(4.) Letter from the National Association of Attorneys General to Carlyle C. Ring, Commissioner, National Conference of Commissioners on Uniform State Laws (Nov. 13, 2001) at http://www.affect.ucita.com/pdf/Nov 132001_Letter_from_AGs_to_Carlyle_Ring.pdf.
(5.) American Library Association Washington Office, Library Response to NCCUSL Amendment Proposals (January 2002) at http://www.ala.org/washoff/libresp.pdf.
(6.) Nimmer, 697 n. 124.
RELATED ARTICLE: Dramatis Personae & Lexicon of Useful Acronyms
DMCA--Digital Millennium Copyright Act, passed in 1998, was the first major revision of copyright law since 1976. Its primary purpose was to bring the U.S. into compliance with international copyright agreements.
UCITA--Uniform Computer Information Transactions Act, a proposed revision to the Uniform Commercial Code (UCC), adopted in most states, which makes the principles governing contract law consistent from state to state. UCITA was intended to update the UCC by providing uniform rules for intangible products involved in computer information transactions on the Internet and elsewhere.
USC--United States Code, which is the codification (not the full text of each individual law) of federal law in force. It is divided into sections called "titles," and Title 17 covers copyright law. The DMCA added a new section to Title 17 (Section 12), which deals with copyright protections and management systems, and the first part of this section, 1201, is the "anti-circumvention" section discussed in this article.
All of the authors work at the Louis J. Blume Library at St. Mary's University in San Antonio, Texas. Kathleen L. Amen is the government information librarian. She received her M.L.S.from the University of Texas--Austin and an M.A. in communications studies front St. Mary's Her e-mail address is email@example.com. Trish Keogh is the cataloging librarian. She received her M.L.I.S. from the University of Texas--Austin and an M.A. in communications studies from St. Mary's. Her e-mail address is firstname.lastname@example.org. Necia Wolff is the business/off-campus services librarian. She received her M.L.I.S.from the University of Oklahoma in Norman, Oklahoma. Her e-mail address is email@example.com.