DMCA threatens academic freedom

At one time, the free distribution of copyrighted materials for educational use was protected under the 'fair use' provisions of U.S. Copyright law. Has the DMCA undermined those provisions?
Written by Marc Wagner, Contributor

For as long as there has been public education, the right of schools and libraries to freely access and reproduce copyrighted materials for educational purposes has been recognized -- if not formally, certainly by precedent.  The concept of 'fair use' was formalized in the 1960's (see U.S.C. 17 sec 107). 

All that changed in 1998, when the Digital Millennium Copyright Act [H.R.2281.ENR] was passed by Congress.  While this act didn't actually abolish 'fair use', as our educational institutions embrace emerging technologies, free access to copyrighted materials in digital form will dramatically diminish over time. 

If 'fair use' is still permitted, how can this be?

Thanks to a particularly intrusive feature of the DMCA, Digital Rights Management (DRM --also referred to as C.R.A.P. by my colleague, David Berlind), no matter what the 'fair use' provisions of copyright law stipulate, there are a growing number of copyrighted materials that cannot be accessed without decoding software.  Since the DMCA forbids the use of unauthorized decoding software (regardless of the intent of its use), access to copyrighted materials for educational purposes is no longer under control of the educational institution.  (In fact, even possessing such unauthorized software is a felony.)  Instead, only the corporate owners of these copyrighted materials can grant access to the materials.  Whether they grant that access to the educational institution or not is entirely up to the copyright holder. 

So far, this doesn't sound all that intrusive.  After all, the information does belong to the copyright holder.  But wait ...

Do we really want our educators at the mercy of corporate interests for access to information which should be accessible to all in an educational setting? 

To make matters worse, since a single corporate interest completely controls their own DRM decoding mechanism, a school or district could easily find itself locked into the DRM technology of a single vendor.  Further, each DRM technology is protected by an End User License Agreement.  The terms of this EULA may change at any time, at the vendors discretion, without any recourse for the school district -- but to stop using the material or accept the cahnges interms -- no matter how instrusive they may be. 

In an academic environment, this kind of corporate influence can have a devastating impact on academic freedom.  If your school district is under severe budgetary constraints, it becomes ripe for corporate interests to come in and make an offer too good to pass up -- only to find itself locked out of a wealth of alternatives down the road. 

For a broader look at this issue, please see my blog in Between the Lines: DMCA should scare us all.

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