Campus Copyright

Opposite of Progress is Congress - New Digital Copyright Bill

By Declan McCullagh

For the last few years, a coalition of technology companies, academics and computer programmers has been trying to persuade Congress to scale back the Digital Millennium Copyright Act. A proposed copyright law would expand the DMCA's restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers.

The Intellectual Property Protection Act of 2006 is expected to "be introduced in the near future.". "The bill as a whole does a lot of good things," said Keith Kupferschmid, vice president for intellectual property and enforcement at the Software and Information Industry Association in

Washington

,

D.C.

"It gives the (Justice Department) the ability to do things to combat IP crime that they now can't presently do."

The 24-page bill is a far-reaching medley of different proposals cobbled together. One would, for instance, create a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.

It also represents a political setback for critics of expanding copyright law, who have been backing federal legislation that veers in the opposite direction and permits bypassing copy protection for "fair use" purposes. That bill--introduced in 2002 by Rep. Rick Boucher, a Virginia Democrat--has been bottled up in a subcommittee ever since.

One of the more controversial sections are changes to the DMCA. Under current law, Section 1201 of the law, distributing or trafficking in any software or hardware that can be used to bypass copy-protection devices is prohibited. (That section already has been used against a

Princeton

computer science professor, Russian programmer Dmitry Sklyarov and a toner cartridge remanufacturer.)

Smith's measure would expand those civil and criminal restrictions. Instead of merely targeting distribution, the new language says nobody may "make, import, export, obtain control of, or possess" such anticircumvention tools if they may be redistributed to someone else. "It's one degree more likely that mere communication about the means of accomplishing a hack would be subject to penalties," said Peter Jaszi, who teaches copyright law at

American

University

and is critical of attempts to expand it.

Even the current wording of the DMCA has alarmed security researchers. Ed Felten, the Princeton professor, told the Copyright Office last month that he and a colleague were the first to uncover the so-called "rootkit" on some Sony BMG Music Entertainment CDs--but delayed publishing their findings for fear of being sued under the DMCA. A report prepared by critics of the DMCA says it quashes free speech and chokes innovation.

Jessica Litman, who teaches copyright law at

Wayne

State

University

, views the DMCA expansion as more than just a minor change. "If Sony had decided to stand on its rights and either McAfee or Norton Antivirus had tried to remove the rootkit from my hard drive, we'd all be violating this expanded definition," Litman said.

The proposed law scheduled to be introduced by Rep. Smith also does the following:

• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating "advanced tools of forensic science to investigate" copyright crimes.

• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.

• Boosts criminal penalties for copyright infringement originally created by the No Electronic Theft Act of 1997 from five years to 10 years (and 10 years to 20 years for subsequent offenses). The NET Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.

• Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be "destroyed" or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.

• Says copyright holders can impound "records documenting the manufacture, sale or receipt of items involved in" infringements.

Campus Copyright Guide Available

"Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations" is a new booklet on copyright written especially for higher education communities. The guide was developed by representatives of the Association of American Universities, Association of Research Libraries, Association of American University Presses, and the Association of American Publishers with the objective of producing a document that conveys these groups' "common understanding regarding the basic meaning and practical significance of copyright for the higher education community." The booklet is available online at http://www.aaupnet.org/aboutup/issues/Campus_Copyright.pdf.