The DMCA jury is in

Legislators, Hollywood lobbyists, IT industry heavyweights and law professors have been battling over how copyright law should apply to the Internet. While these mighty forces struggle over what the legal and technical landscape should look like, we may learn something about that future from what happened when a jury weighed in on the practical boundaries of copyright law.

High-stakes lobbying and court battles brought the US a law called the Digital Millennium Copyright Act (DMCA), which both extends copyright protection to digital works and makes it a crime to use or distribute tools that help to break the copyright protection of digital works. These "anticircumvention" provisions have been controversial both with civil liberties advocates, who see them as restricting free speech, and with some people in the computer industry, who worry that they will regulate out of existence basic system functions such as cut and paste. The debate is far from over, but whatever the result, it will certainly have a fundamental impact on the kinds of computing tools available to the enterprise.

The technology for anticircumvention has also been quite controversial. Should computing platforms in the enterprise and the home be built to assure that it's impossible to copy documents, songs or images unless we have the explicit permission of the copyright holders? While this might help reduce the widespread infringement of music files, what effect would it have on the flexibility of basic enterprise computing? How about the free flow of information -- the driving engine of the Internet and the key to productivity improvements brought about by networked computing?

Still, if computers don't enforce copyrights on digital works, will the entertainment industry suffer irrevocably?

For the first time in this debate, a federal jury decided on this contentious question. They were asked whether software that breaks eBook copy protection codes violates the DMCA. In considering criminal charges leveled against a Russian software company that makes software to break the copy protection built into eBooks, the jury, in a federal court in San Jose, found that the software isn't criminal because there are legitimate reasons to allow users to make copies of information in eBook format. In the view of this jury, at least, it's not right to impose restrictive tools on all users just to catch a few lawbreakers.

This decision calls into question the tough provisions enacted by legislators all around the world. Ordinary folks, it seems, are much less inclined to throw people in jail in order to assure copyright holders that their works will be perfectly secure on the Internet.

Whether or not you agree with the jury's view, it does suggest that it's time to rethink the heavy-duty lock-and-key approach that many digital rights management systems are taking to protecting copyrighted works.

The dramatic rise (and fall) of services like Napster have focused lawmaking and technical attention on the 15-year-old who may care more about getting the latest music than the virtues of copyright. But in building systems designed to lock out the urges of teenagers, we've forgotten the vast majority of users, especially in the commercial and academic worlds, who respect copyright law.

Although in some cases heavy-duty technologies are in order, in this case perhaps the jury was right. We need technology to make it easier for law-abiding users to continue to respect copyrights, not more heavy-handed protection in general-purpose computing platforms.

Daniel J. Weitzner is Technology & Society Domain lead at the World Wide Web Consortium (W3C) and a research scientist at the MIT Laboratory for Computer Science in Cambridge, Mass. The opinions expressed are his alone and do not represent the views of W3C or its members.

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Daniel J. Weitzner

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