Abolish the Digital Millenium Copyright Act
US Congress and the Judiciary
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We believe that this law contradicts the interest that we, the People, intended when we delegated Congress the Constitutional Power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries".
We agree with Julie Cohen, writing for 46 intellectual property professors who find that "The DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers." We endorse their amicus brief submitted in Universal v. Corley: http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_lawprofs_amicus.html
We agree with the Supreme Court that copyright is not a birth right, but a "wholely statutory" grant (Wharton v. Peters, 1834). The Copyright grant exists by the grace of the public as a public investment for the public benefit, much like a loan. "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors" (US v. Paramount Pictures, 1948; Sony v. Universal City Studios, 1984).
This DMCA wrongly inhibits fair use of digital material by giving publishers a false right to control access to their digital material. Fair use is the quid-pro-quo that we, the People, demand in return for a temporary exclusive right to profit from a particular expression of one's work. We agree with Justice Stevens that copyright has "never accorded the copyright owner complete control over all possible uses of his work" (Sony v. Universal City Studios, 1984).
We agree with Justice O'Connor that "The author's consent to a reasonable use of his copyrighted works had always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained." (Harper & Row v. Nation Enterprises, 1985). These requirements are Constitutional in origin: First Amendment protections [are] embodied in the Copyright Acts distinction between copyrightable expression and uncopyrightable facts and ideas, and in the latitude for scholarship and comment traditionally afforded by fair use. (Harper & Row v. Nation Enterprises, 1985).
Moreover, the DMCA denies basic property rights to purchasers of tangible goods. The doctrine of First Sale protects these property rights, and includes but is not limited to
- the right to private performance of audio-visual works (PREI v. Columbia, 1993)
- a right to display works, 17 USC 109(c)
- a right to copy or adapt digital software works for utilization with a machine 17 USC 117(a)(1)
- a right to copy or adapt digital software works for archival purposes
In stark contrast, the DMCA takes these property rights from their owners and gives them permanently to publishers. We reject the notion that First Sale provides only the right to resell as advanced to defend the DMCA by certain Courts and the Copyright Office. The Copyright Office recently published a report to Congress about the effect of the DMCA on First Sale without mentioning these rights. To ignore the impact of the DMCA in particular on an owner's private performance right per PREI v. Columbia is an egregious omission. We reject the report and believe it grossly misstates the negative impact to the public of the DMCA.
We agree with Professor Felten that the DMCA chills speech and the progress of science in the arena of computer security. We believe that the DMCA will harm, not help, the interests of authors and citizens for this reason. We reject security through censorship.
We agree with the 17 eminent Computer Science professors represented by James Tyre and the 8 leading Cryptologists represented by Jennifer Granick that:
- Computer Code is Expressive Speech.
- Academics and Programmers Must Have the Freedom to Communicate Fully in Code.
- Source Code And Object Code Are Copyrightable And Thus Entitled To Full First Amendment Protection.
- The Protection Given To Code Cannot Be Limited On Account of "Functionality".
- The Encryption Research Exemption Is Insufficient
- The Anti-dissemination provisions are content based
- The DMCA harms rather than furthers a substantial public interest
- Inventing false new rights for publishers and effectivly eliminating fair use are not "narrowly tailored" means against copyright infringement
In particular, we reject the regulation of code as symbolic conduct under the "O'Brien" standard. Code is simply text, which has no conduct inherently associated with it. Code expresses functional ideas, much as a musical score does. It takes a machine and a willing human operator to turn those ideas into conduct. O'Brien was not arrested for carrying instructions on how to burn his draft card.
Finally, we view with disgust the arrest of Dmitry Sklyarov, who is charged with creating tools to read encrypted books. In the middle ages the pre-reform Catholic Church persecuted scholars who tried to translate the Latin bible into the common vernacular. Today encryption has replaced Latin as the tool of choice to stifle the right to read. The protestants who founded this nation, English bible in hand, would look upon the DMCA with the same disgust that they looked upon the evils of the medieval Catholic Church.
For the above reasons, we reject chapter 12 of the Digital Millennium Copyright Act as unconstitutional and bad policy.
We demand that Congress repeal it and that Courts strike it down.
Failing the rule of law, we, the People, declare "misuse of copyright" by popular decree, and thereby revoke our grant of Copyright to those works protected by chapter 12 of the Digital Millennium Copyright Act until such time as the government restores the Copyright Act to a form consistent with the Constitution and the will of the people.