Licenses stand to replace the sale of many copyrighted works today, without necessarily allowing licensees to make the uses of their works that copyright law would have permitted, such as fair use and the right to dispose of the licensee’s copy. For example, a license can say that you can't make a copy of a chapter from an electronic book to use with your class, or that you can't give away your copy of software when you no longer need it. Each restriction undermines public access to some degree.

The availability of a license also affects the outcome of the fair use test, making once fair uses subject to the payment of royalties, thus restricting access to those who can afford to pay.

Most disturbingly, copyright owners may use license terms to prevent disclosure of or discussion about information that normally would require extraordinary measures to protect it as a trade secret. Kerberos is a standard security infrastructure developed at the Massachusetts Institute of Technology with public funds. Microsoft apparently proposed additional features to Kerberos ("extensions"), and incorporated these proposed extensions in Windows 2000. In the context of the Microsoft antitrust case, discussion of the reasons Microsoft did this (allegedly to stifle competition from Linux) and its effect on competition, is important; however, Microsoft posted the specification for its proprietary Kerberos extensions under license terms that require users to treat it as Microsoft’s trade secret. In effect, no one who sees it can talk about it or share it with anyone else without breaching a contract. 4

Until recently, a license with such terms offered as a "shrink-wrap" or "click-on" license would not have been enforceable in most jurisdictions. Today, however, our state legislators are faced with the decision whether to adopt the Uniform Computer Information Transactions Act (UCITA), a uniform law that would validate shrink-wrap and click-on licenses so long as their terms are not unconscionable, pre-empted by federal law, or against public policy. None of these requirements is likely to have any effect on most such licenses. Thus, if UCITA is adopted in your state, and a software vendor includes terms that prohibit giving away your software or prohibit reverse-engineering, even though both of these would be permitted under copyright law (the first sale doctrine and fair use), those terms are enforceable. Likewise, if vendors include a term that says that copying a chapter from an electronic book is prohibited, that term will be enforceable even though doing so would be a fair use under the right circumstances. These are not terms a customer will be able to negotiate: a customer’s only recourse is to sue the vendor to try to determine whether such a term is unconscionable, pre-empted by federal law, or against public policy. UCITA thus establishes generally non-negotiable licensing as an alternative protection scheme for distributing mass-marketed copyrighted works without the necessity for balancing the rights of users with the incentive given to copyright owners. The legal environment becomes more or less, whatever the owners want it to be, limited for all practical purposes by what the market will bear.

Access controls function mainly to limit access to those who are authorized, usually by payment of a fee; however, access controls can be used for other purposes. Mattel owns a company that makes a program called Cyber Patrol that blocks access to certain websites; however, its users cannot see the product’s "block list." Critics of filtering software created a program called "cphack" that revealed the block list so that users could see that many unobjectionable sites were blocked by the software. Mattel’s first reaction to the criticism was to add the sites that criticized it and its product to the block list, thus using its access control technology to prevent its users from seeing sites containing views with which Mattel disagreed. 5

The Digital Millennium Copyright Act’s (DMCA) Internet Service Provider (ISP) liability limitations permit copyright owners to send notices to ISPs directing them to take down subscriber pages alleged to infringe the owner’s rights. These provisions are located in Section 512 of the Copyright Act. Copyright owners may use this procedure irrespective of whether the use may be subject to fair use claims. It is easy to send the notices (no judicial intervention is required, no court order, not even a sworn affidavit) and it’s easy (and safe) to comply if ISPs want the law's substantial protections. If they decide to comply, ISPs are not required to consider whether something may be infringing or fair use. They may take the allegations as true. Subscribers may raise such issues, but they may not be legally sophisticated enough to do so effectively.

On the surface, this probably appeals to Universities as ISPs: we receive a notice, we respond by taking down the allegedly infringing work, and nine times out of ten, that will be the end of it. But, what if the work complained of is a student's final exam, a website that fulfills course requirements. What if it’s a research site with work authored by the Dean of the Law School? Wouldn't some investigation of whether the work really is an infringement be appropriate before we take it down? I believe we can do that investigation without losing our protections under the DMCA, but we are not required to do it. Further, a copyright owner could argue that unless we do it really quickly, we are not really complying with the law's requirement to expeditiously take the work down. The law builds in a bias against considering fair use seriously.

Let’s see how this works in practice. Mattel sent such notices to ISPs world-wide to take down copies of cphack that Mattel alleged infringed its copyrights; however, cphack’s programmers arguably made a fair use of Cyber Patrol to reverse engineer cphack, and fair use is an affirmative defense to any allegation of infringement. In any event, despite the fact that the allegations were unproven, many, if not most, ISPs probably took the program down. Mattel also sent DMCA authorized subpoenas to websites worldwide for the identities of anyone who had downloaded cphack. Ultimately, Mattel bought the copyright in cphack from its creators, ostensibly to overcome the fair use objection and acquire the authority it needed to demand that the program be removed from all websites, but in an ironic twist, each time cphack was downloaded, it had been licensed under the GNU public license and copies already distributed could not be "called back." In the end, Mattel got a court order banning distribution of cphack, again, pursuant to the DMCA. 6

The Kerberos controversy erupts in this context also: Slashdot, a website devoted to discussion of open-source software, received notice that discussions about the controversy are infringements of Microsoft’s rights. Participants variously posted the entire specification, links to other locations where one could see the specification and a statement that if the specification were opened in WinZip the license would not appear before the specification. All three of these kinds of messages were the targets of ISP notices under the DMCA. There is, of course, no need under the DMCA for Microsoft to demonstrate that the matter claimed to be protected as a trade secret is indeed a trade secret (which determination rests almost entirely on the degree to which it is effectively treated as a secret by its owner), whether posting the specification infringes any copyrights owned by Microsoft, or whether fair use covers any of the speech in question, including links to other sites where the specification might be found or an observation of fact about the function of WinZip. 7

In another example, the Church of Scientology allegedly sent a notice to eBay regarding the sale of a device, alleging that the device was protected by copyright and that selling it violated the owner’s rights. Even though the first sale doctrine (Section 109) protects subsequent sales of copyrighted materials from control by the copyright owner, eBay allegedly complied with the request, without investigating or objecting on the grounds that the device may not have been protected by copyright at all (copyright protects things like writings, paintings, music, video, etc., generally not things like devices) or that the first sale doctrine applied to limit the copyright owner’s rights to control a second sale. 8

But the biggest threat to speech and access is contained in the DMCA’s anti-circumvention provisions. These provisions are separate from and unrelated to the ISP liability limitations. They are in Chapter 12 of the Copyright Act, and currently prevent the manufacture or distribution of a device whose primary purpose is to circumvent a technology that protects a copyrighted work. There are exceptions for encryption research, reverse engineering, law enforcement, and library review of a product to see whether it wishes to purchase it, but analysts have indicated these have serious flaws and offer no real protection. The most fundamentally flawed aspect of the anti-circumvention provisions is that the reason a person has for circumventing a technology that protects a copyrighted work is irrelevant to the question of whether the person’s actions will violate the statute. You might wonder, "Well, so what? Shouldn’t it be wrong to manufacture or distribute a device whose primary purpose is to circumvent a technology that protects a copyrighted work?" In theory, I suppose so, but the scope of this law seems to me to just go way too far in protecting an owner’s rights without any counterbalancing concern for user’s interests.

Remember the Kerberos discussions that were the subject of notices under the DMCA’s ISP provisions, specifically, the statement that using WinZip would allow the reader to access the specification without the license appearing first to bind the user to secrecy? Well, that statement, those words, could violate the device prohibition. A statement of fact is now actionable as a distribution of a device whose primary purpose is to circumvent a technology that protects a copyrighted work. And, the fact that you may want to access it to comment upon or criticize it is irrelevant.

Similarly, Mattel need not concern itself with whether it can control the distribution of a software program that may or may not infringe its copyrights. It merely needs to allege that the program circumvents a technology that protects a copyrighted work. If it does this, as courts are already proclaiming, fair use (legitimate reverse-engineering) becomes irrelevant. 9

Currently there are two cases where the owners of copyright in one technology allege violations of anti-circumvention law by the creators of software that makes it possible for an owner of a legally acquired work to use it with a competing technology. One is about playing movies on a different machine (Universal City Studios v. Eric Corley) 10, and the other about playing music on a different player (RealNetworks v. Streambox) 11.

Stunning assertions about the scope of this law are emerging from these disputes: RealNetworks argues that its file format is a copy control device, a technology that protects a copyrighted work, so converting its files to another format is circumvention. 12 Both plaintiffs argue, as critics of the law have said they would, that the legitimacy of the purpose of the end user, such as making a fair use, is irrelevant to the inquiry. 13 They probably are right.

Irrespective of whether plaintiffs are right, the Universal lawsuit alone reportedly was enough to cause many sites posting copies of DeCSS to shut themselves down, thus demonstrating the chilling effect on speech this law is already having.

Finally, plaintiffs are arguing that mere links to allegedly infringing material, which amounts to little more than facts about the location of such materials, constitute contributory infringement. 14 Compare a newspaper story that reports a fact such as, "copies can be purchased at any flea market" (referring to allegedly bootleg copies) with a web page that reports, "Copies of DeCSS are available at the following locations: [linked list]," where, in neither case has there been a determination that any copies are in fact infringing. Would we ban the speech in the newspaper article? Well, we are asking courts to ban the speech on the web page by court order. If this doesn't get you worried, I haven't done a very good job of explaining the situation!

In a very general sense, anti-circumvention provisions potentially threaten the entire bargain our copyright law represents because no one is authorized to "open" the locks to make a fair use, and no one is authorized to "open" them to lend a work, to make a copy for a library's patron, to archive a work, to display the work in the classroom, to make an adapted copy for a visually disabled person, to get at unprotected elements in a work (facts, ideas or public domain materials), and no one is authorized to "open" the locks when the term of protection has expired to permit these works to enter the public domain.

This takes what Congress set out as limited rights for limited times and turns it into unlimited rights forever!! If copyright owners do not voluntarily give users these rights, the public loses its half of the bargain. Can copyright really achieve its purpose with only an incentive to authors and owners and no counterbalancing rights for users? With terms of protection that last around 100 years now, this is no trivial matter.

Delivered by Georgia Harper, 8/7/2000 in Snowmass Village, Colorado to the Directors Seminar in Academic Computing, sponsored by Educause

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Last updated: August 6, 2001