SHAWN C. REIMERDES (2600 Magazine)

I submit this brief to address the scope of the anticircumvention provisions of the
Digital Millennium Copyright Act ("DMCA"), Public Law 105-304 (1998).

I am a media studies scholar and cultural historian. I received a Ph.D. in American Studies from the
University of Texas at Austin in May of 1999. I have taught university-level classes at the University of
Texas, Concordia University at Austin, Wesleyan University, and New York University. At New York
University, I currently serve as a Faculty Fellow in the Department of Culture and Communication, where I teach classes entitled "Language of Communication: Film, Radio, Television," "Global Media," and
"Impacts of Technology: The Digital Moment."

In these classes, I frequently show films and film clips to my students. I also create World Wide Web
pages on the New York University server for my classes. These pages carry hypertext links to sites
through which my students may examine controversial issues in the development of the very
communicative technologies that have been the subject of this case. In the fall semester of 2000, I plan
to link my class web pages to sites that discuss DeCSS technology and the issues surrounding this case.

I am deeply concerned about the potential harm the anticircumvention powers of the Digital Millennium
Copyright Act will have on media studies and scholarship in general. I am just as concerned about the
effects that this emerging leak-proof, highly regulated electronic regime could have on American culture
and deliberative democracy.

Today, most of the subjects of media studies research are widely accessible. A handful of works of film
and early radio are even in the public domain. So scholars and teachers benefit from ample and easy
sources. But that might change over the next few decades as more works — even those already in the
public domain — become enclosed behind electronic locks and gates and delivered in streams of digital
signals. The potential for abuse of this technology and of the legal power behind it is immense.

Please imagine my classroom 35 years from now. As I do every semester, I plan to show my class a film
that explores conflicting values and loyalties during wartime: Casablanca. But some time during the
2020s, all the VHS players at New York University fell into disrepair. The library has the tape, but nothing
to play it on. Kim’s Video store on Bleecker Street is now a Starbucks. Blockbuster is now a hand-held
device instead of a large store. The only means for showing this film to my class is to have it streamed in
via a satellite feed into a video projector. Casablanca would have entered the public domain the previous
year (assuming Congress does not extend the term once again). But it remains well protected,
"double-wrapped" by both by "click-wrap" contract and technological access controls.

The class settles down. On my palm computer, I call up the interface page for the motion picture
distribution company. I enter my "educator’s code." I hit "play." Nothing happens. Once again, I must do
my poor Bogart impression for the class in lieu of the film. What happened? Perhaps there was some
technical failure. Perhaps this was my second class of the day and the service blocks "fair users" from
watching a film twice. Perhaps the NYU Library could not negotiate a contract renewal with the company
and stay within its tight budget. Perhaps my "educator’s code" revealed me to be the one who wrote that
scathing review of the major summer blockbuster of 2034. Perhaps the company identified me as
someone who filed and amicus brief against the industry in federal court way back in June of 2000.

The Digital Millennium Copyright Act grants complete power to allow or deny access to a work with the
producer or publisher of that work. The producer may prohibit access for those users who might have
hostile intentions toward the work. This power could exclude critics and scholars. Most likely it would
exclude parodists and satirists as well.

The anticircumvention provision shifts the site of negotiating fair use from the user (and the courts in the
case of likely infringement) to the producer. This is not how Congress intended fair use to operate when it
codified the concept in the 1976 copyright revisions. Under the DMCA, the producer has no
incentive to grant access to any user who might exploit the work for fair use -- including
scholarship, teaching, commentary, or parody. Under this regime, a user must agree to terms
of a contract with a monopolistic provider before gaining access. Under this new regime, one
must apply to read, listen, or watch.

The very economic basis of copyright is that a state-granted limited monopoly can create artificial
scarcity where natural scarcity could not exist. Once the content industry has a perfect, technological
monopoly on high-demand back-catalog films such as "Casablanca," it could regulate scarcity as it
pleases. The industry would have an incentive to limit the number of times a film could be shown for
free, including classroom use. Restricting free and "fair" use bolsters monopolistic pricing power, recapturing any "loss" that could not have been collected under an imperfect, "fair use" regime as
existed before the DMCA. With very little to lose in the market, and able to exact monopoly pricing
over their products, media companies would have great incentive to restrict harsh critics and parodists
from viewing their works.

Copyright was invented in the British Isle as an instrument of censorship, a way of regulating the traffic
of ideas through the selective granting of licenses. Fortunately, copyright has grown in the American
context as something very different. It has enabled and encouraged a rich public sphere. Up until a few
years ago, when it still embodied a balance among creators, publishers, and users, copyright served as
an essential foundation of democratic culture. Its very imperfections — the leaks in the system such as
fair use and the first sale doctrine -- helped American culture and commerce thrive in the past 200 years.

American users have benefited from the proliferation of American cultural products, but they have also
enjoyed four important safety-valves against the censorious power of copyright: the first sale doctrine;
fair use; a limited term which allows works to enter the public domain eventually; and the idea-expression dichotomy which allows facts and ideas to flow freely while protecting specific displays of those ideas.  Now, all four of these notions are under attack by the content industries through the World Intellectual Property Organization treaties. The DMCA is only the first step of this process.

If the music and film industries continue to tighten the reins on use and access, they will strangle the
public domain and the information commons. This trend presents a much greater threat to American
culture than just a chilling effect on teaching and scholarship. Shrinking the information and cultural
commons starves the public sphere of elements of discourse, the raw material for decision making,
creativity, and humor.

So what can we do about this pernicious trend? How can we revive the beauty and genius of the
American copyright system and maintain its positive externalities on our culture and democracy?

• This court should declare that no exercise of law should regulate the creation of hypertext links to any
published web site. Connecting two pieces of text through any technology — tape, staples,
photocopying, or hypertext linking -- is an editorial exercise on par with appending two words, two
sentences, or two paragraphs. Linking clearly is an act protected by the First Amendment. The very
possibility that one might face legal action for linking to another web site over which one has no control
would chill the practice of linking to suspect sites, thus eroding the communicative value of the World
Wide Web.

• Second, this court should ensure that the anticircumvention prohibition does not apply in any case to
material not covered by 17 U.S.C., the Copyright Act. Therefore, a publisher could not stifle access to
works in the public domain, to government documents, or facts, ideas, or data. Allowing such access
protection would be unconstitutional because it would extend copyright de facto for perpetuity and
recapture unprotectable elements already in the public domain, including facts and data. Such power
would run counter to the principles the U.S. Supreme Court outlined in its Feist decision.

• This court should recognize that Congress did express concerns about the possible deleterious effects
this law could have on teaching and research. Congress authorized the Librarian of Congress to consider
exempting certain "classes of works" from the anticircumvention provisions of Section 1201. But without
carefully balanced guidance from this court, the DMCA might have an absurd effect. It would prohibit or at
least chill many creative efforts or research projects that might yield software that could be used for
circumvention. If this court’s ruling has the effect of chilling speech about possible ways to circumvent,
then we are left with a situation. Congress and the Library of Congress might conclude that there are
some instances when circumvention could be allowed or appropriate, yet the court would have stifled
access to the very anticircumvention technologies and devices that users require to exercise our rights.
That would be like granting us the right to record television shows for later viewing, but prohibiting the
sale of video recorders. It would be like declaring that we enjoy freedom of the press, but not the
freedom to own a press.

Congress recognized fair use as an important right in the 1976 copyright revisions and in the DMCA.
Courts have recognized fair use as an essential tool in the copyright system that works for the encouragement of learning and creativity. A broad interpretation of the anticircumvention provisions
of the DMCA would render that right moot.

When Congress revisits this issue, I trust it would recognize the value of an imperfectly regulated yet
balanced copyright system. As it stands, the Digital Millennium Copyright Act is a recklessly crafted law
that upsets that balance by granting to producers almost complete control over access to copyrighted
works. The companies get everything. The users (citizens, readers, students, researchers) get nothing. If
Congress does not redress this balance, I hope the U.S. Supreme Court, which several times in the
1990s upheld the constitutional value of users’ rights, would once again rescue our copyright system
from those who would corrupt it.

Respectfully submitted,
Siva Vaidhyanathan

Executed on June 2, 2000 in New York, New York