"American copyright law is supposed to encourage creativity, but what we are seeing -- 200 years later -- is a situation where the law discourages the creative process," Siva Vaidhyanathan, a faculty fellow in the School of Culture and Communications at New York University, said at a press conference before a meeting whose outcome could handcuff the law.
Representatives of several groups with an interest in strengthening users' abilities to use copyrights descended on Stanford to present comments to advisers from the U.S. Copyright Office, which is part of the Library of Congress -- the body responsible for determining which activities connote "fair use" and should be exempted from the law.
Vaidhyanathan argued his points to a panel of five copyright advisers from the Library of Congress.
The Digital Millennium Copyright Act of 1998 makes it illegal to circumvent copyright protections or to create a device that would do so, outside of a narrow list of exceptions.
The critics, who gathered here, maintained that the net effect of the DMCA, as it is known, is to let big corporations and copyright holders gag the free exchange of ideas.
"The copyright law is replete with balances so that the public can access copyrighted material -- protections to offset the benefits that copyright holders are given," said Frederick Weingarten, director of the Office for Information Technology Policy at the American Library Association.
For librarians, changes to the copyright law could mean that their ability to loan out information sources, or give free access to such sources, would be severely curtailed.
Other bills being pushed through Congress and state legislators, especially the Uniform Computer and Information Transaction Act (UCITA) and database protection laws, could make the situation even worse.
"The iron triangle -- copyright, UCITA and new database law -- are trying to bring about the information kiosk," said Weingarten. "Everyone will have to pay money every time they turn a page."
Over the past several months, the consequences of the DMCA have been felt as corporations flex their legal muscles under the new law.
This is a hot-button issue. The EFF is defending the well-known hacking publication 2600, which posted links to a program designed to access DVD movies by bypassing encryption on the discs.
Eight major Hollywood studios, the Motion Picture Association of America and the DVD Copy Control Association sued the creators of the program -- known as DeCSS -- and also subpoenaed those who posted or linked to the program and its source code.
On Monday, the EFF appealed to a California appeals court to reverse a preliminary injunction barring the publication of the DeCSS software on dozens of Web sites.
Such legal battles cropping up over DVD movies -- and how consumers are allowed to access them -- show only one facet of the Digital Millennium Copyright Act. Among the battles:
RealNetworks Inc. vs. Streambox Inc.
In January, Streambox found itself on the pointy end of the legal stick when a federal judge granted RealNetworks Inc. a preliminary injunction blocking Streambox's distribution of software used to capture and save RealAudio and RealVideo streams.
MPAA vs. DeCSS
Last December, the Motion Picture Association of America sued the creators of a program that broke the encryption on digital video discs in order to create an unlicensed player of DVDs. Such a player could, for example, skip the ads and previews that many Hollywood studios are placing in the intro track -- a track that cannot be skipped. The MPAA claimed that the creators were pirates.
RIAA vs. Napster
Last December, the Recording Industry Association of America, whose members account for all the major music publishers, and Metallica -- among others -- sued Napster Inc., a company whose program allows Internet users to swap MP3 music files. While Napster's ability to make music transfers easy virtually paints a target on the company, its huge popularity supplied the ammo.
Microsoft vs. Slashdot
Driven by popular outcry, Microsoft opened its own proprietary specification, based on the Massachusetts Institute of Technology's secure authentication protocol, called Kerberos. The standard allows client computers on the Web to securely contact a server using public encryption. However, Microsoft's version adds a few twists aimed at letting Windows clients better connect to Windows servers.
Even though it published the specification on its Web site, the license agreement -- which it forced readers to sign -- put severe limitations on how readers could critique or disseminate the information.
Last month, several Slashdot readers posted the spec without the license on the Web site, and others posted directions on how to view the Kerberos information without actually agreeing to the license. Microsoft has sent legal notification to the tech-community site requesting that all such documents be removed under the auspices of the DMCA.
While current copyright law strikes a balance between the owner of a creative work and the user of that work, the DMCA has, at the very least, given the scales a good shake, said Jeffrey Reyna, an attorney in the e-commerce and Internet law group at Hancock Rothert & Bunshoft LLP.
"It's a gray area," he said. "It is not about copyright, but copyright protection. It adds a provision to copyright law that says if you circumvent the copy protection, you are not just guilty of copyright infringement but also in violation of the circumvention."