Wednesday, October 09, 2002

News: Copyright decision to shape technology
But what the Supreme Court decides in this case, Eldred v. Ashcroft, could create ripple effects that spread throughout the technology industry and shape what kind of software and hardware products are legal to create and sell.

Here's an example. Under the 1998 Digital Millennium Copyright Act (DMCA), it's illegal to sell software or hardware that could descramble DVDs, unlock copy-protected CDs, or strip the protection away from Adobe's eBooks. The DMCA has even been used to threaten programmers who write font-manipulation software and researchers who point out security flaws.

As I wrote in a recent column, the DMCA may not be as noxious as some of its detractors claim it is, but any law that would ban software that could be used for both good and bad purposes goes too far. (It would be as nutty as banning all handguns, which Washington, D.C. does, just because some miscreants may use them for ill purposes.) Unfortunately, all court challenges to the "anti-circumvention" sections of the DMCA have failed.

The Supreme Court's eventual decision in the copyright extension case, which will come sometime in the next eight months or so, could change this losing streak. If the judges choose--and this is hardly certain--they could hand down a ruling that dramatically limits the reach of copyright law.

"I think the best case scenario is for them to say the First Amendment is a serious limitation on copyright law so we have to look critically and not permissively at what Congress is doing," says Peter Jaszi, a professor at American University who sometimes teaches his copyright law class wearing a T-shirt protesting the copyright extension act. "Then we would know something important. And that would, for instance, breathe new life into the discredited or disrespected First Amendment arguments in the DMCA cases."

Jaszi says the Supreme Court could, if it chose, "bring back the notion that one has to measure congressional judgments about intellectual property policy by a higher-than-normal standard because of the First Amendment stakes. And that's something that the Second Circuit didn't do. That was a very deferential decision."
http://zdnet.com.com/2100-1107-960969.html

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