Thursday, August 11, 2005

Fedex abusing DMCA - just as predicted

OK, it's been a LONG time since I wrote anything about the DMCA, so now's a good time for a brief refresher:

::::::::On October 12, 1998, the U.S. Congress passed the Digital Millennium Copyright Act, ending many months of turbulent negotiations regarding its provisions. Two weeks later, on October 28th, President Clinton signed the Act into law.

The Act is designed to implement the treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva conference, but also contains additional provisions addressing related matters.

As was the case with the 'No Electronic Theft' Act (1997), the bill was originally supported by the software and entertainment industries, and opposed by scientists, librarians, and academics.

Highlights Generally:

  • Makes it a crime to circumvent anti-piracy measures built into most commercial software.

  • Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.

  • Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems.

  • Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.

  • In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.

  • Service providers, however, are expected to remove material from users' web sites that appears to constitute copyright infringement.

  • Limits liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.

  • Requires that "webcasters" pay licensing fees to record companies.

  • Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while "maintaining an appropriate balance between the rights of copyright owners and the needs of users."

  • States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use..."

(Thanks to the UCLA for that write-up.) OK, the DMCA was put through Congress by content owners and developers looking to protect their investments. Their actions brought on the ire of the denizens of cyberspace for a variety of reasons. The principle issue that most of the heavy wire-heads have with the DMCA is that so much of the content is created specifically for users of Windows systems and this precludes the use by those folks who choose not to use a Microsoft product. Making it illegal to even attempt to circumvent copy protection methods means that these users cannot find ways to port the content into a usable form. Often, (as is the case with some music CD's) the copy protection will even prevent the use of the content on specific machines not approved for use. Some folks believe that when they buy a $15 CD of 12 tracks of music, they should be allowed to play that CD on whatever bloody device they choose. I happen to be one of those people but I'm not as rabid about the DMCA as others I've read.

One of the problems that was predicted when the DMCA was passed was that companies would abuse the law to force users to not post images, information, and reviews about their products if what was said or shown didn't meet with the companies' approval. This, of course, was poo-poohed loudly at the time.

I give you Fedex, who is, at this very moment, citing the DMCA as their justification to demand the removal of a web site put up by a man who furnished his apartment with stuff he made out of Fedex shipping boxes. The web site has pictures of the stuff he's made and Fedex is saying that it violates their copyright and, therefore, the DMCA. The man's lawyers are saying it's not a matter of copyright, but trademark infringement and that means the DMCA doesn't apply.

Fedex is giving themselves a black eye (and clamping a vice-grip on their own genitalia, by the way) in pursuing this kind of thing. Had they not waved the DMCA around, the site likely wouldn't have attracted much attention, and certainly not that of the tech web site titan Slashdot. My advice to Fedex: quietly withdraw the complaint and let it slide off into the sunset.