Copyright Fair Use and the Digital World

For the purposes of this discussion, copyright fair use will be limited to issues of consumer private use(s) of legally obtained digital material. This exercise will examine copyright fair use by focusing on two essential cases: the Johansen DeCSS case and the Elcomsoft ebooks case. Both involve the use of anti-circumvention technology to gain access to works legitimately owned by consumers for private consumption purposes--activities strictly banned by the Digital Millennium Copyright Act.

In essence, this is a debate between copyright owners and consumers where advances in technology have made it possible for copyright owners to physically prohibit "unauthorized" use of a work that might/would not otherwise be illegal.

Copyright law gives copyright owners many exclusive rights, including the exclusive right to reproduce and distribute their work. Congress, however, enumerated some exceptions to these rights, including fair use. Please read the following as background material:

17 U.S.C.A. §106--Exclusive rights
17 U.S.C.A. §107--Exclusive rights limitation--fair use

With the onset of the digital age, the Copyright Act was expanded to include the Digital Millennium Copyright Act (1998). Congress, through various sub-committees and extensive negotiations, developed new provisions to deal with a variety of digital copyright issues involving online materials and the information infrastructure that makes this material available. Specifically, under 17 U.S.C.A.§1201, the DMCA sought to address copyright reproduction and distribution issues unique to the online medium by enacting provisions which allowed copyright owners to use technological measures to control what copyright owners perceived as "unauthorized" access to their materials and imposed significant prohibitions and liability for those who circumvent these devices. Please read the DMCA language and a brief overview of the DMCA written by the Copyright Office:

17 U.S.C.A.§1201--Copyright Protection and Management Systems

http://lcweb.loc.gov/copyright/legislation/dmca.pdf

DISCUSSION

There continue to be ongoing debates regarding private use "copying" and whether or not this is fair use. Those who would say that this is not fair use argue that Congress gave copyright holders the exclusive right to control the reproduction of their works, and while §107 provides a "test" for exceptions to this rule, Congress did not give private consumers any affirmative rights to copy the work of others for personal use. Rather, Congress provided defenses for uses where "copying" had taken place, and where public policy dictated that no cause of action should be found.

Others believe that the Supreme Court and Ninth Circuit have handed down decisions which clearly state that non-commercial copying and use is presumed to be fair. These cases hinge on the premise that private copies are limited in purpose and unlikely to cause commercial harm (either because the instances of copying are only occasional or because the original materials are legitimately owned already).

Please read the following two cases:

Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)
RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999

The DMCA introduces a new twist into this debate because technological measure can now be employed to prevent the copying and/or use of specific material as the copyright holder sees fit (whether actually illegal or not). Copyright protection systems can dictate the specific use(s) of any digital copyrighted work and the DMCA prohibits the circumvention of these measures, with some exceptions. Two recent cases illustrate the issues consumers must deal with when purchasing or consuming digital media and the tension created with the fair use provision.

The first deals with a programmer, Johansen, in Norway who developed code (DeCSS) that removed the encryption placed on DVDs so that he could consume his legally purchased DVDs on a Linex operating system--a system not approved by the DVD copyright holder as an authorized playing device. DVDs are manufactured with encryption coding that require they be played in authorized DVD players that have the "key" to the encryption code and "unlocks" the content for consuming. Johansen made the DeCSS code available via the internet which caused a series of cases in the United States concerned with the trafficking of anti-circumvention measures--also prohibited by the DMCA (whether anyone actually uses them for illegal purposes or not). We will not discuss this portion of the anti-circumvention provision.

Please read:

http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/20030109_johansen_decision.html (Johansen was indicted in Norway and this case is a translation from the ruling on January 7, 2003)

Questions:

· Should Johansen be allowed to purposefully circumvent a technology measure put in place by the copyright holder to play a DVD which he purchased lawfully?

· Once the encryption code is removed, Johansen has full digital access to this work--should he be allowed to make copies for his own use? Can he burn a DVD copy and give it to a friend? What about one copy for him and one for his wife?

· What if he makes a copy available on his personal website?

The second case involves the use of anti-circumvention measures to remove encryption technology placed on ebooks. Adobe offers ebooks to be downloaded and read on a user's PC, but limits access to this material to a single copy on a specific PC, viewable only with specific software and not printable. A Russian company, Elcomsoft, created software that circumvented this restriction and made it possible to copy and view the ebooks via other software and on multiple PCs. It also allows them to be printed. Adobe brought this to the attention of the US government, who brought suit for violations under the DMCA. Currently, there are no allegations that the program created by Elcomsoft has caused any actual copyright infringement. Motions on both sides focus primarily on trafficking, jurisdictional issues or the constitutionality of the anti-circumvention provisions in the DMCA. As such, review this case at a high level, focusing on the potential availability of this software (or others like it) and its impact on fair use.

Please skim this case:

U.S. v. Elcom Ltd., 203 F.Supp.2d 1111 N.D.Cal., 2002

Questions:

· Should Adobe (and others) be allowed to determine the specific uses of the ebooks that they distribute--and that you purchase?

· If you read a great book today in the offline world, do you pass it along to a friend? Should you be able to do this with an ebook you also purchase? Why or why no?

· If you read a caption or article relevant to a law school class that you are currently taking, should you be allowed to make 10 copies and share it with your classmates? What if the material is contained within an ebook? Should you be allowed to "grab a couple pages" and distribute them to your classmates? Can you do this via email?

· What if you want to do this--and believe you have a legal right to do this, but utilize the Adobe software which does not allow you to make copies, cut or paste pages, or print any of the ebook? Would you use the Elcomsoft software if it was made available to you for purposes such as this?

Lastly, Representatives Rick Boucher (D.-Va.) and John Doolittle (R.-Calif.), re-introduced legislation in January of this year proposing to give consumer of digital media fair use rights not afforded to them under the DMCA. Please read the following article, and skim the bill (embedded as a link in the article):

http://dc.internet.com/news/article.php/1565901

Or view the bill here:

http://www.house.gov/boucher/docs/BOUCHE_025.pdf

Question:

· What do you think about this bill?

· Where to we go with this issue next--if anywhere?