This article was originally submitted to Razormouth.com (an internet based, editorial page from a Christian Reformed perspective) in February of 2003. I suppose it did not meet their editorial standards which is perhaps why I enjoy their site so much (“I sent the club a wire stating, Please accept my resignation. I don't want to belong to any club that will accept me as a member” Groucho Marx once quipped). It contains my favorite set of eclectic articles on all imaginable topics and (usually) from a Reformed perspective.
Most readers of Razormouth, I’m sure, have noticed the strong stance they can take against various actions and ideas in society and our churches. Here in America we take it for granted that we have free (in the sense of unrestricted) access to ideas in the public forum for criticism, exchange, and distribution. What would happen if the literature that carried these ideas had terms and conditions attached to them that forbid the reader to criticize them?
In 1997 one of America’s most outspoken free speech advocacy groups, Hollywood and other media conglomerates, went to congress with their lawyers in an effort to strengthen their control of the content they provide. What the industry requested was a law that would make the attempt at circumvention of digital copy protection mechanisms illegal and in return they promised a landslide of new content for the digital domain (http://news.com.com/2010-1078-825335.html). The studio’s fear was that the copyrights on content released in a digital format was too easily violated by pirates and they wanted the support of law in combating the problem.
Bowing to the pressure of these groups, congress enacted the “Digital Millennium Copyright Act” of 1998 (DMCA) and it, in effect, handed a sledgehammer to the media conglomerates and copyright holders to use against anyone they viewed as a critic or a competitor. In the ensuing time period since the passage of the legislation, instead of the promised content, we’ve been granted a slew of lawsuits and threats by anyone who put the word “copyright” on their material against anyone else that seemed to either cut into their business or even criticize their content.
Examples of abuses since the law's passage abound but to site a few: a group many of Razormouth’s readers probably hold dear, The Church of Scientology, used the DMCA to silence criticism (of course, those familiar with the tactics of the cult will not be surprised) (http://www.xenu.net/copyright.html, http://www.linuxsecurity.com/articles/government_article-4659.html?FACTNet) by forcing search engines to remove references to web sites that contained an evaluation that the cult found objectionable and where source material was quoted. According the various interpretations of the law, these search engines are required to remove these references regardless of the merit of the case. In stifling competition it has recently been invoked in a suit by Lexmark to bludgeon companies that make replacement toner cartridges for its popular printers (http://news.com.com/2100-1023-979791.html). It has the potential to allow enforcement of terms and conditions on e-books that stipulate that criticism of the material contained therein violate those conditions (http://book-conference.com/ProposalSystem/Presentations/P000016) and there is real concern that it soon could be used to make it illegal to skip commercials at the beginning of DVDs (http://www.techtv.com/news/culture/story/0,24195,3324352,00.html) since doing so would probably require either a circumvention of the scrambling system on the DVD (known as CSS), or a DVD player which violated the terms and conditions of the license that allowed the manufacturer to use the algorithms required to play the media.
While this might sound absurd the DMCA has already been invoked to find the identity of an individual suspected of piracy by the Recording Industry Association of America (RIAA) (http://www.cbsnews.com/stories/2002/11/04/tech/main527984.shtml). Armed with the DMCA, the RIAA recently won a court ruling against Verizon which requires Verizon to provide them with the name of one of their ISP customers whom they claim they’ve tracked downloading music off of the internet (On a personal note I’m not sure how the RIAA could even do this without violating the terms and conditions of the file sharing facility they were spying on, but that’s as it may be). Verizon is appealing the decision.
This most recent ruling, while perhaps warranted in this particular case (the individual was allegedly tracked by the RIAA downloading 600 songs), has very wide reaching consequences for the protection of individual privacy.
Copyright law in this country has a long and distinguished history. Its source is rooted in the Constitution and the original copyright law was established in 1790. Since then it has undergone only four major revisions. The ‘fair use’ clause (http://www.dartmouth.edu/~chance/Fair_Use/law.html) of the current copyright law explicitly allows for the use of material for the purposes of criticism and comment and lays out rules of thumb for determining if an infringement can be substantiated. The purpose of the original copyright law, along with its sister, patent law, is to promote the circulation and free exchange of ideas while allowing the copyright and patent holders to maintain some rights to their expressions and inventions. It is within this spirit and for this reason that the ‘fair use’ clause exists. The DMCA seems to be another major overhaul of these time tested laws that specifically provides a legal mechanism for the copyright holder to circumvent the fair use clause of the law to the detriment of free speech.
However, it must be recognized that there really is a serious problem that needs to be addressed. How many people reading this column have commercial software on their PC that they didn’t buy? How many have MP3s of songs that they didn’t purchase? While the hypocrisy of the RIAA and MPAA may be astounding as they are repeatedly dragged into court over price fixing (http://news.com.com/2104-1023-244195.html?tag=bplst) and implement policies that allow them to maintain their monopolies, does that give us, as Christians have the right to violate God’s law? When an entire generation of teenagers and young adults think nothing of getting their entire music collection from file sharing services like KaZaA and the now defunct Napster, something needs to be done to address the issue. But should that action entail a serious curtailment of the first amendment?
The irony of the media fighting for
provisions in the law that, if not in principle, at least in fact,
curtail the exercise of free speech is not lost. To see the
self-refuting behavior of the anti-establishment, independent,
rebellious band, Metallica, being the first artist lined up to hone
the craft of using the DMCA as a weapon amuses my Presuppositionalist
tendencies. But the cost is too high and there is an alternative. One
that is not likely to be supported by the industries that currently
benefit from the curtailment of competition and free speech, but VA
Representative Rick Boucher, a penitent participant in the passage of
the DMCA, has proposed a new bill
which would preserve the “fair use” rules of the existing
copyright laws. This bill, known as “Digital Media Consumers'
Rights Act” (DMCRA), would specifically amend the DMCA to
provide media in the digital domain with the same rights and
restrictions that have been afforded written works for over 200 years