Even RealNetworks, a company that has a digital-rights management system for protecting video and audio delivered over the Internet, found fault with the ruling. "This is a travesty," said Alex Alben, vice president for the Seattle-based firm. "This is not what we intended when we created the DMCA." The Lexmark case is the latest in what many legal experts and technologist argue is a misapplication of the law. For example, security researchers have many more hurdles to overcome under the DMCA to publish research, said Joseph Liu, a law professor at Boston College Law School. Researchers can circumvent protections in order to study the security measures under an exemption of the DMCA, but the exemption favors those researchers with a good academic pedigree. Moreover, the researcher has to inform the copyright holder of the research and requires predisclosure of results, which could lead to censorship. "There are so many flaws in the statute that you can censor yourself more than you really need to" because of the fear that you will be sued, Liu said. Another speaker, Princeton University computer science professor Edward Felten, experienced such fears first hand when the Recording Industry Association of America told him that publishing results that showed the weaknesses in several secure digital music candidate technologies could violate the DMCA. The courts disagreed that such a notice entailed a threat and threw out the case, but the tactic has become commonplace. Software companies have cited the DMCA to researchers who discover holes in their programs and have frequently sent out blanket notices to anyone who seems to host a pirated program. A site that offers up the open-source OpenOffice program received such a notice from Microsoft, according to reports on Friday, because an automated program searching for MS Office was triggered by a simple keyword. Increasingly, however, people receiving such notices are fighting back. Ben Edelman, a Harvard law student and researcher, filed a pre-emptive lawsuit against a filter company to defend his research into the company's encrypted lists of blocked sites. And telecommunications and Internet service provider Verizon Communications has battled requests by the music industry to reveal the names of peer-to-peer sites that the RIAA alleges are offering pirated music online. Concern for innovation
Such incidents have increased the resistance by consumers and rights advocates to the creation of a highly secure digital rights management system. In the current policy landscape -- with such laws as the DMCA on the books -- strict controls could lead to greater stifling of innovation and free speech, experts argued. Even Microsoft -- which is pushing for a security platform that could result in a extremely difficult-to-crack digital rights management system -- wants to duck the policy issues. "We have a clear focus that we don't want to restrict what people can use their computers for," said John Manferdelli, general manager for Microsoft's Windows Trusted Platform Technologies group. "We have found out in talking to customers that whatever the methods that you use, they cannot impose policy. It should be under user's control." Yet, solving those issues will not be easy. The issues are not simple, and regulating every fair use of copyrighted content would lead to a complex law that wouldn't help, said Boston University's Liu. "If we tried to spell out fair use in law, I think we would come up with something that would resemble the tax code in its complexity," he said. Despite such sentiments, others stressed that the law needs to shift to put the rights of the citizens over those of the copyright monopolists. David Farber, law professor for the University of Pennsylvania, said that digital rights management systems need to be in place to protect not the minority of big corporations but the masses of people. "I am not talking about protecting the media companies from people using their content," he said. "I am concerned with protecting my information and finding out who made copies of it." Until copyright policy tilts back to the populace, people will likely resist such systems, said John Erickson, a system program manager for Hewlett-Packard Labs, who spoke on one of four panels Friday. "We are taking the human being out of the equation... and putting a chastity belt on technology," he said. He stressed that laws and technology, such as digital rights management, need to take constitutional issues into account. "There is not social governance of what goes into a rights management language," he said. "If we are to have the regimes, we need to figure out how to have people in the loop."
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