Copyright-Related State Legislation
Proposed legislation "to combat broadband and communications piracy" is being promoted by large entertainment companies represented by the MPAA (Motion Picture Association of America). These proponents claim that this legislation - based on the Model Communications Security Legislation --will update existing computer crime and cable theft statutes to help combat digital piracy. The proponents claim that new "criminal and civil penalties against Internet pirates and hackers of communications services" at the state level are "an essential tool to complement resource-limited activity at the federal level."
In reality, this copyright protection legislation largely duplicates the intention and the protective mechanisms inherent in the Digital Millennium Copyright Act (DMCA) passed by Congress in 1998 with the stated purpose of preventing digital piracy. However, unlike the DMCA that builds in certain exceptions and limitations to permit legitimate activities, the state versions do not. Furthermore, the sweeping language of the proposed legislation would inadvertently outlaw the use of security technologies such as encrypted email and firewalls. The legislation would increase the vulnerability of communications and the Internet at a time when cybersecurity is a national priority.
The DMCA prohibits the circumvention of a technological lock that controls access to a copyrighted work. It also prohibits the manufacture or distribution of any product or service that is primarily designed or produced for the purpose of circumventing a technological measure that controls access to a copyrighted work. Furthermore, it prohibits the manufacture or distribution of any product or service that is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that protects a right of a copyright owner.
However, the DMCA permits the act of circumvention for critical activities such as achieving interoperability, encryption research and security testing. The DMCA also establishes a rulemaking proceeding under which the Librarian of Congress can establish additional exceptions upon finding that users of a particular class of copyrighted works are likely to be adversely affected by their inability to make legitimate uses of the works. Further, the DMCA has a "no mandate" clause which states that the DMCA does not require that a consumer electronics, telecommunications, or computing product respond to any particular technological measure.
Furthermore, the DMCA remains controversial because it has had a chilling effect on academic research, access to information and the ability of libraries to preserve information resources. There are several bills in Congress to amend the DMCA to permit circumvention for activities that do not infringe copyrights.
The proposed state legislation does not include the important limitations of the DMCA and therefore will harm technology companies, universities, libraries and users. By broadening the circumvention ban, the " state DMCAs" have serious privacy and security implications.
Although the language of the legislation varies by state, the bills do not generally permit:
- the possession, sale or use of technologies "that conceal…the existence or place of origin or destination of any communication" thereby prohibiting encrypted email in which the "To" and "From" lines are concealed
- most firewalls that usually employ a technology that automatically translates, and thereby conceals, the source and destination of email traffic thereby severely undermining personal privacy and network security
- Track the legislation in the states (pdf)
- June 11, 2003: Joint library associations letter to Gov. Bush (PDF File)
- June 5, 2003: Florida Library Association letter to Gov. Bush (PDF File)
In addition to the pursuit of "Super DMCA" legislation, the entertainment industry represented by the Motion Picture Association of America (MPAA) is also promoting legislation that attempts to stop piracy of copyrighted movies by prohibiting the recording of movies in a facility in which a motion picture is being shown. The term "facility" is not defined and thus could include libraries. Because libraries often show films, sponsor film series, have videotapes and DVDs for patron use, use computers and other video equipment to preserve films, record news broadcasts and make fair use copies of segments of movies, this broadly defined legislation is problematic.
Track the legislation in the states (pdf)
20 February 2004:
Joint library association letter to Washington State Legislature (pdf)