the golden age of copyright, only a few years ago, the old adage "good
fences make good neighbors" held true: Copyright laws and fair use doctrine
created reliable boundaries of acceptable behavior. Copyright holders and
copyright users had reached an accommodation. Fair use met the needs of
each, allowing users of copyrighted material to reproduce materials in
certain situations and also encouraging copyright owners to innovate by
protecting against unlimited copying.
then one day (well, over the course of a few years, actually), digital
technology upset this balance by providing users with the ability to obtain
data and create multiple copies at almost no cost of time, money, or effort.
Industrial interests were threatened by the independence that consumers
had gained through digital and Web technology. They longed for the days
when they were highly valued and highly compensated. When worthy adversaries
like Napster appeared, they filed suit. And when their interests were violated
they lobbied vigorously for protection, proposing legislation such as the
Digital Millennium Copyright Act (DMCA) and the Uniform Computer Information
Transactions Act (UCITA). DMCA became federal law in 1998, while UCITA
has followed a more circuitous path through the state legislatures. But
do the DMCA and UCITA merely provide traditional protections to copyright
holders of digitized and Web content? Or do they, in fact, extend the power
of copyright holders beyond previous bounds and encroach on the rights
of the consumer?
I, Scene I: Back in the Day
use balances the rights of copyright owners (authors, music publishers,
movie studios, etc.) with those of users of copyrighted material (researchers,
students, journalists, the public). It permits reproduction and other use
of copyrighted material for certain purposes, such as research, criticism,
and teaching, and under certain circumstances. The fair use guidelines
that appear in the copyright law were not always so formally codified;
they were built up gradually out of case law. In 1976, the last time copyright
law was significantly revised (prior to the DMCA), these guidelines, which
govern fair use decisions, were recognized as part of the law. However,
enshrining fair use guidelines in USC (United States Code) Title 17 has
not by any means made deciding fair use clear-cut. Plenty of room remains
for interpretation. In fact, over the years, the Supreme Court has heard
more cases involving fair use than any other area of copyright law.1
days of yore, in the print/analog world, a sort of "fair use equilibrium"
had been achieved. Both copyright owners and users generally recognized
what was permissible. Guidelines governing decisions about fair use pose
four questions, with each answer tilting the balance either for or against
fair use. The resultingfair use "score" guides the decisions of researchers,
students, librarians, journalists, and other users of copyrighted material.
And, if an infringement suit is brought, the courts consider this score
in making their determination.
four questions of the fair use test are:
What is the "purpose and character" of the use? Higher points for
educational, lower for commercial.
What is the nature of the work? Higher points for nonfiction, lower
for fiction; higher points for published, lower for unpublished.
much of the copyrighted work is being used? Higher points for brief
excerpts, lower for whole chapters.
What is the effect of the use on the market for the work? Higher
points for spontaneous classroom use of out-of-print material; lower for
assigned reading from an in-print textbook.
I, Scene II: Star-Crossed User Smitten with MP3, Exhibits Tragic Lack of
Judgment ... and Seals His Fate?
these guidelines worked well with textual information, newly available
alternative formats have influenced learning styles. Our patrons have become
more visually oriented and increasingly demand multimedia materials. This
unbalancing act has drawn users of copyrighted information into collision
with the bewildering complexity of copyright as it applies to multimedia;
patched together as a series of exceptions to the unified theory of text-based
copyright, the copyright rules for multimedia works encompass a mind-boggling
array of concepts that include reuse fees, performance, and synchronization
rights. While this is great news for intellectual property lawyers, it
is bad news for the average (typically pre-adult) user attracted to multimedia
and disinclined to pursue proper permissions for this class of works (or
for anything else). Have the stars conspired to doom this type of user
to a career of infringement? And will multimedia copyright issues, previously
a special case, become the norm in copyright disputes?
II, Scene I: All Are Punished, Napster Dude Terminated with Extreme Prejudice
consumer access to perfect digital downloads of popular music and film
files, along with a wealth of available decryption software, coincided
with an upswing in interest in these products. Loss of control over these
lucrative properties translated into lost income for copyright owners—an
unprecedented incentive to seek redress. The results include lawsuits that
have halted Napster, and lobbying efforts that have yieldedthe DMCA (in
particular, the anti-circumventionmeasures that have become section1201
of the USC), and UCITA.
is circumvention, as the DMCA defines—and prohibits—it? Simply put,
it's "hacking," a word that exudes illicit connotations. However, under
the DMCA definition, any use or downloading of software, any playing of
DVDs, any perusing of books is "hacking"—in other words, what you or I
would call "gaining access." (Look, Mom, no innuendos!) In the old days,
no special talent or equipment was needed to "hack" into a book you hadn't
bought; if a friend lent or gave it to you, you just read it—a perfectly
legal act under the now embattled doctrine of first sale. In the digital
world of the DMCA, you may need a password to open that book, and there
may even be technology-imposed limitations on who can use that password.
You may not be able to access your friend's e-book, even if he or she legally
bought the copy and voluntarily lent it to you.
a computer-savvy user may be able to bypass the e-book's password protection,
this circumvention of access-control measures placed on copyrighted works
is precisely what is proscribed by Section 1201—the so-called heart of
the DMCA. Even if a fair use of the work is intended, this legal use will
have been preceded by an illegal act of circumvention. Under the DMCA,
merely including on your own Web page a link to a Web site containing circumvention-enabling
decryption software has become a prosecutable act, as in the case of
Universal v. Reimerdes (the New York 2600/DeCSS case).2
the useofinformation, not the means of information distribution
or consumption, has been regulated. For example, under copyright law,
the sale of a photocopy of an entire book is an infringement, but sale
of photocopy machines has never been regulated, despite their potential
contributory role to such a crime; the same reasoning was applied to VCRs.
("Machines don't infringe copyright—people do!") By regulating the devices
and software the people use, the DMCA actually regulates access
to information, rather than regulating how a consumer uses that
information. And restriction or denial of access may be made without regard
to whether or not an intended use would be lawful. Some legal scholars,
prompted by the DMCA anti-circumvention provisions' regulation of information
through technology control, consider this departure from prior precedents
of copyright law a venture into "paracopyright."3
are technological restrictions permitted to outlast the term of the copyrighted
material being "protected"? After material on a technology-protected CD
has passed into the public domain, the technological measures restricting
its use may still be active. And although this is only a problem if there
are no paper copies, content in one format (e-books) tends to displace
the same content in another (traditional books)—with the added downside
of reduced rights of access and reproduction. And so dies the dream of
free and unlimited access.
II, Scene II: UCITA, New and Unimproved, and Troubles Mount
the DMCA has been the law of choice for irate copyright holders in federal
court, then a related piece of legislation has found some success at the
state level: UCITA. In the early 1990s, in response to complaints by software
vendors that their products were not fully protected under existing state
commercial law and federal copyright statutes, the National Conference
of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute
(ALI) began drafting Article 2B, a new article of the Uniform Commercial
Code (UCC). This article would address challenges to commercial law enforcement
of digital information product protections. However, as the draft became
increasingly skewed in favor of software vendors and against software consumers,
ALI withdrew its support. The NCCUSL decided to push ahead with stand-alone
state contract legislation that mirrored the provisions of Article 2B.
Thus, UCITA was born.
the Uniform Computer Information Transactions Act, is a proposed state
contract law that would define licensing requirements for computer information
transactions. UCITA expands enforceability of software licenses and contains
new limitation provisions that could be included in such licenses. Software,
online databases, Internet service providers (ISPs), and many other types
of computer information products and services would fall under UCITA regulation.
aspect of UCITA that concerns librarians is how this law would support
non-negotiated licenses. For example, while you are installing some new
software, a license agreement pops up that includes all the license limitations
that you must agree to before using the software. By clicking on "I Agree"
when installing a piece of software or using a database, library staff
or patrons may be surrendering their fair use rights. These "shrink-wrap"
or "click-wrap" agreements are considered "non-negotiated" because customers
are only able to view them after they have bought, opened, and installed
the software. Users (including librarians) have no chance to examine the
licensing provisions before buying. If consumers had a chance to compare
license agreements among competing software packages, it might affect their
purchasing decisions. A shrink-wrap software license might include a provision
requiring product reviewers to obtain the approval of the software vendor,
thus enabling the vendor to limit product use, even for purposes of review
or criticism. In the past, courts have often refused to uphold the license
provisions in shrink-wrap agreements; however, UCITA makes these licenses
enforceable by the courts. And since some provisions of UCITA conflict
with federal copyright law, librarians or other information consumers charged
under UCITA could find themselves in the awkward position of having to
defend their federal rights from encroachment by a flawed state commercial
allows the inclusion of programming code in products that would enable
a vendor to automatically disable or restrict access to the product if
a licensing violation were suspected. And while service could be suspended
without benefit of a court order or official legal notice to the user,
UCITA would also protect the vendor from consumer litigation seeking damages
to recover costs associated with such loss of product service. Librarians
are rightly concerned with possible loss of access to important products
without prior notice or due process.
III, Scene I: As the World Turns, the Aggrieved Take Arms Against the Opposition
the past year, UCITA has met with plenty of opposition in its bid to be
accepted in all 50 states; so far, only Virginia and Maryland have ratified
UCITA. Anti-UCITA forces in other states have successfully defeated the
proposal where it has been submitted to legislators. Recently, the Attorneys
General of 32 states published a letter that termed UCITA "fundamentally
flawed" and suggested that NCCUSL abandon the legislation.4
response to criticism from anti-UCITA groups, NCCUSL decided to revisit
the most controversial sections of UCITA. The Standby Committee of NCCUSL
accepted and reviewed 70 revisions to UCITA submitted by librarians and
other opposition groups. From these, the committee developed amendments.
(It is important to remember that these are only recommendations; the NCCUSL
may ultimately decide to reject any or all of them.) Yet these amendments
do not appear to be enough to salvage the law in the eyes of UCITA's opposition.
According to the American Library Association's Washington Office, the
19 amendments do little to solve librarians' problems with the law.5The
NCCUSL Standby Committee refused to add language to UCITA that would exempt
libraries from mass-market, non-negotiated licenses that limit libraries'
traditional fair use actions. Instead, the committee only provided a narrow
exception to UCITA that would allow libraries to donate or transfer software
only to public libraries, elementary schools, or secondary schools; software
would have to be transferred with the computer on which it resided, in
practical terms preventing any interlibrary loaning of the material. Many
issues of interlibrary loan, distance education, and resale (through library
materials sales) would still be subject to regulation by licenses limiting
fair use activities. Industry groups and consumer protection groups also
contend that the amendments do little to address their concerns with other
sections of UCITA.
to the act's built-in biases towarddigital information vendors' interests,
many groups have banded together to block passage of UCITA; opponents include
librarians, professional engineeringand computer science associations,
insurance companies, and consumer protection organizations. As the NCCUSL
is likely to continue to push for adoption of UCITAby other states in upcoming
months, those opposed will need to remain alert and ready for action. To
monitor UCITA's progress in each state, visit the following Web sites:
State Contract Law Intersects Federal Copyright Law by the American Library
This ALA Web site includes updated information on UCITA legislation in
all 50 states.
Americans for Fair Electronic Commerce Transactions (formerly 4cite) (http://www.affect.ucita.com).
This is a Web site of organizations representing the concerns of various
interest groups opposed to UCITA.
Computer Information Transactions Act (UCITA) from the Association of Research
Look here for a list of articles and letters that follow the history of
UCITA and Article 2B.
III, Scene II: The Price of Freedom Is Eternal—Well, at Least, Continued—Vigilance
the curtain comes down on our drama, will there be consideration for the
rights of all? As the action continues, we spectators are invited to mount
the stage and join the players, to take action that will influence the
outcome. In 3 years,the Librarian of Congress is mandated to make a report
on the DMCA "to assesswhether the implementation [of the provisions of
Section 1201] of technological protection measures that effectively control
access to copyrighted works is adversely affecting individual users' ability
to make lawful uses of copyrighted works."6
As the comment period approaches, it will be very important to keep abreast
of alerts and additional information posted by library organizations and
other watchdog groups. But don't forget about these issues during the next
2 years. If your patrons have difficulties making fair use of material
that is "locked up" by access control measures, make notes about each case
and keep them handy. When the time comes for comments, ALA and other groups
will want specifics of how users are "adversely affected."
and the DMCA represent a two-pronged assault on our ability to access copyrighted
information. And while they may not represent the only threats to our right
to information, they are ones that we can do something about!
Personae & Lexicon of Useful Acronyms
Millennium Copyright Act, passed in 1998, was the first major revision
of copyright law since 1976. Its primary purpose was to bring the U.S.
into compliance with international copyright agreements.
Computer Information Transactions Act, a proposed revision to the Uniform
Commercial Code (UCC), adopted in most states, which makes the principles
governing contract law consistent from state to state. UCITA was intended
to update the UCC by providing uniform rules for intangible products involved
in computer information transactions on the Internet and elsewhere.
States Code, which is the codification (not the full text of each individual
law) of federal law in force. It is divided into sections called "titles,"
and Title 17 covers copyright law. The DMCA added a new section to Title
17 (Section 12), which deals with copyright protections and management
systems, and the first part of this section, 1201, is the "anti-circumvention"
section discussed in this article.
Nimmer, David. A Riff on Fair Use in the Digital Millennium Copyright Act,
148 U. Pa. L. Rev. 703 n.158 (2000).
Electronic Frontier Foundation, DeCSS Case to Be Reviewed by Appellate
Court: Free Speech on Trial in DVD Fair Use Case (April 26, 2001) at http://www.eff.org/IP/Video/MPAA_DVD_cases/20010426_eff_appeal_pr.html.
H. Rep. No. 551, pt. 2, 105th Cong., 2d Sess. 24 (1998).
Letter from the National Association of Attorneys General to Carlyle C.
Ring, Commissioner, National Conference of Commissioners on Uniform State
13, 2001) at http://www.affect.ucita.com/pdf/Nov132001_Letter_from_AGs_to_Carlyle_Ring.pdf.
American Library Association Washington Office, Library Response to NCCUSL
Amendment Proposals (January 2002) at
Nimmer, 697 n.124.
of the authors work at the Louis J. Blume Library at St. Mary's University
in San Antonio, Texas. Kathleen L. Amen is the government information librarian.
She received her M.L.S. from the University ofTexasAustin and an M.A.
in communications studies from St. Mary's. Her e-mail address is firstname.lastname@example.org.
Trish Keogh is the cataloging librarian. She received her M.L.I.S. from
the University of TexasAustin and an M.A. in communications studies
from St. Mary's. Her e-mail address is email@example.com.
Necia Wolff is the business/off-campus services librarian. She received
her M.L.I.S. from the University of Oklahoma in Norman, Oklahoma. Her e-mail
address is firstname.lastname@example.org.