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Legal and Technological Efforts to Lock up Content Threaten Innovation
Policymakers continue to sort through new challenges to copyright and intellectual property protection presented by advances in computing and communications technology. As the result of lobbying efforts by commercial content industries to gain more control over their works, new legislative and regulatory initiatives have emerged that threaten to erode the rights and expectations of researchers and consumers.
The computing community has reason to be concerned. By combining new legal rights under the Digital Millennium Copyright Act (DMCA) with technological protections made possible by digital rights management (DRM) technology, consumers and researchers face even greater restrictions over their use of personal computers, operating software, and other devices that display and copy digital content.
Passed by the U.S. Congress in 1998, the DMCA's stated intent was to impose legal penalties on individuals who circumvent encryption technologies designed to protect copyrighted works. It was strongly supported by commercial content industries as well as by ISPs and other technology companies. ACM's U.S. Public Policy Committee (USACM) and other leaders in the computing community cautioned lawmakers that broadly criminalizing the manufacture and use of any technology that can circumvent a copyright protection measure would produce a chilling effect on U.S. scientific and research enterprise, particularly in encryption and security research. We suggested a more balanced approach that targets the act of infringing behavior itself.
Since the DMCA's enactment, many scientists have had to consult attorneys to determine whether their previously legitimate research might be in violation of the law. The threat of legal action has deterred some scientists from publishing scholarly work or even discussing their research among peers and students. Foreign scientists and international members of ACM have indicated they will not attend conferences held in the U.S. while the DMCA is in force. In a legal declaration filed in a court case reviewing the DMCA, ACM concluded the law has the potential to limit the freedom to publish research, imposing a cost on the academic community, scientific discourse, and society in general.
In addition, the DMCA undermines efforts to address cybersecurity vulnerabilities by impeding the research and testing necessary to develop innovative security products. While many efforts are under way to enhance overall security of information infrastructures and e-commerce, the DMCA prevents circumventing access technologies to recognize shortcomings in security systems, discover and fix dangerous bugs in code, and conduct forms of desired educational activities. Even the President's Special Advisor for Cybersecurity has expressed concern that the DMCA stifles legitimate research needed to improve homeland security.
Earlier this year, legislation was introduced in Congress to amend the DMCA. The proposal would permit consumers and researchers to circumvent a technological measure to gain access to a protected work, providing the circumvention does not result in infringement of the work's copyright. Known as the Digital Media Consumers' Rights Act, it ensures that technologists would not face penalties for conducting research to improve copyright protection systems, security software, and software engineering tools. While it is too soon to project its prospects for passage into law, it is an important first step welcomed by the computing community.
As the result of lobbying efforts by commercial content industries to gain more control over their works, new legislative and regulatory initiatives have emerged that threaten to erode the rights and expectations of researchers and consumers.
Efforts to Mandate DRM
Seeking to build on the legal protections provided by the DMCA, the content industries were back before Congress last year promoting a plan that requires all devices that can retrieve, copy, or display copyrighted digital works to follow certain DRM copy-protection rules encoded in digital content. The Consumer Broadband and Digital Television Promotion Act (CBDTPA) proposal criminalizes the manufacture or sale of new hardware or software that does not conform to the DRM copy-protection restrictions. Tampering with the DRM copy-protection restrictions is also forbidden.
Although the legislation's DRM restrictions seek to prevent copyrighted works from being copied from one place on a disk or the network to another, these restrictions would interfere with thousands of legal, noninfringing uses of digital computing. In addition to interfering in the way that software and hardware is developed and used, this misguided legislation threatens the competitiveness of the U.S. IT industry.
While the combined opposition from device manufacturers and computing and consumer groups suggests passage of the CBDTPA is unlikely, legislative and regulatory efforts to advance DRM restrictions on a smaller scale remain ongoing. For instance, the Federal Communications Commission (FCC) is currently considering mandating a digital-protection standard for digital television transmissions that could open the door to more onerous restrictions in the future, along with major implications for digital computing and software.
DRM and the Risks to Digital Computing
Politically, the debate over DRM restrictions is shaping up as a confrontation between incumbents versus innovators. Incumbents envision a future where new legal protections and DRM restrictions are combined to grant unprecedented control over digital content and to protect their current business models from competition. Continued innovation in software and digital computing could be sacrificed.
A small sampling of the risks includes higher prices, fewer choices, and systems that are prohibitive and more difficult to use. For example, tamper-resistant systems could prevent computer users from auditing software, running open source software, accessing data and information, and customizing systems to enhance security and privacy. In addition, controlled access allows copyright holders to track individual uses of digital works, creating new personal concerns.
USACM is engaged to provide policymakers with a deeper understanding of IT policy issues of concern to the ACM membership and computing community. If the future of digital computing is shaped by content industries and technology companies without input from all computing stakeholders, the unintended consequences may threaten the progress of science, economic growth, and the overall security of our infrastructure.
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