BERKELEY, Calif.--Attempts to protect copyrighted material have strayed from their original purpose, say lawyers, technologists and academics, but few can agree on the solution.
Speaking Friday at a University of California at Berkeley conference on the law and policy of digital rights management, experts from all circles seem to agree that more is going wrong than right with the current approach to protecting digital content. Moreover, they argue that current laws such as the Digital Millennium Copyright Act (DMCA)--which makes cracking copyright protections illegal, even when otherwise acceptable under other laws--are serving the extremes, not the mainstream populace.
"There has to be a way between the lunatics at the two extremes," said Larry Lessig, a law professor at Stanford University and well-known opponent of the DMCA. "We need to build a layer of reasonable copyright law on top of this background of unreasonable extremism."
Such sentiments for loosening the control of copyright holders are finding far more fertile ground these days, in the wake of a number of lawsuits that illustrate the dangers of the DMCA. Far fewer people believe that the DMCA is an appropriate method to stave off digital pirates in the Internet age.
For the most part, Lessig and others seemed to have more problems with the law than with the technology behind digital rights management, which regulates what people can do with information. The Stanford professor has created an organization called the Creative Commons to offer alternatives to strict controls backed by laws such as the DMCA. He and other experts taking part in the two-day policy debate, even those sympathetic to the plight of copyright holders, could cite several cases where the DMCA has been used to exert control in a way never intended by the creators of the law.
On Friday, a Kentucky court granted a preliminary injunction to Lexmark International against a company that makes generic replacement cartridges for Lexmark printers. The court found that a chip in Lexmark cartridges that identify the refills as "official" could be protected under the DMCA, and thus, cannot be cloned.
Misapplication of the law
Even RealNetworks, a company that has a digital-rights management system for protecting video and audio delivered over the Internet, found fault with the ruling. "This is a travesty," said Alex Alben, vice president for the Seattle-based firm. "This is not what we intended when we created the DMCA."
The Lexmark case is the latest in what many legal experts and technologist argue is a misapplication of the law.
For example, security researchers have many more hurdles to overcome under the DMCA to publish research, said Joseph Liu, a law professor at Boston College Law School. Researchers can circumvent protections in order to study the security measures under an exemption of the DMCA, but the exemption favors those researchers with a good academic pedigree. Moreover, the researcher has to inform the copyright holder of the research and requires predisclosure of results, which could lead to censorship.
"There are so many flaws in the statute that you can censor yourself more than you really need to" because of the fear that you will be sued, Liu said.
Another speaker, Princeton University computer science professor Edward Felten, experienced such fears firsthand when the Recording Industry Association of America told him that publishing results that showed the weaknesses in several secure digital music candidate technologies could violate the DMCA.
The courts disagreed that such a notice entailed a threat and threw out the case, but the tactic has become commonplace. Software companies have cited the DMCA to researchers who discover holes in their programs, and have frequently sent out blanket notices to anyone who appears to host a pirated program. A site that offers the open-source OpenOffice program received such a notice from Microsoft, according to reports on Friday, because an automated program searching for MS Office triggered a simple keyword.
Increasingly, however, people receiving such notices are fighting back.
Ben Edelman, a Harvard law student and researcher, filed a pre-emptive lawsuit against a filter company to defend his research into the company's encrypted lists of blocked sites. And telecommunications and Internet service provider Verizon Communications has battled requests by the music industry to reveal the names of peer-to-peer sites that the RIAA alleges are offering pirated music online.
Concern for innovation
Such incidents have increased the resistance by consumers and rights advocates to the creation of a highly secure digital rights management system. In the current policy landscape--with such laws as the DMCA on the books--strict controls could lead to greater stifling of innovation and free speech, experts argued.
Even Microsoft--which is pushing for a security platform that could result in a extremely difficult-to-crack digital rights management system--wants to duck the policy issues.
"We have a clear focus that we don't want to restrict what people can use their computers for," said John Manferdelli, general manager for Microsoft's Windows Trusted Platform Technologies group. "We have found out in talking to customers that whatever the methods that you use, they cannot impose policy. It should be under the nuser's control."
Yet, solving those issues will not be easy. The issues are not simple, and regulating every fair use of copyrighted content would lead to a complex law that wouldn't help, said Boston University's Liu.
"If we tried to spell out fair use in law, I think we would come up with something that would resemble the tax code in its complexity," he said.
Despite such sentiments, others stressed that the law needs to shift to put the rights of the citizens over those of the copyright monopolists.
David Farber, law professor for the University of Pennsylvania, said that digital rights management systems need to be in place to protect not the minority of big corporations but the masses of people.
"I am not talking about protecting the media companies from people using their content," he said. "I am concerned with protecting my information and finding out who made copies of it."
Until copyright policy tilts back to the populace, people will likely resist such systems, said John Erickson, a system program manager for
Hewlett-Packard Labs, who spoke on one of four panels Friday. "We are taking the human being out of the equation...and putting a chastity belt on technology," he said.
He stressed that laws and technology, such as digital rights management, need to take constitutional issues into account.
"There is not social governance of what goes into a rights management language," he said. "If we are to have the regimes, we need to figure out how to have people in the loop."