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How is the Academia World Involved?

There are five key stakeholder groups in the debates of the DMCA (Maxwell, 2004): (1) international and American government representatives, (2) authors, (3) user advocates, (4) content providers, and (5) Internet service providers. The academia world involves three stakeholders: authors, user advocates, and online content providers. Researchers, as authors of copyrighted scholarly publications, are an important stakeholder. At the same time, students, professors, and researchers are also users of copyrighted materials. In addition, educational institutions and libraries also build website to provide content, as well as providing web space for faculty members to post their own teaching materials. This blurs the boundary between authors, users, content providers and service providers, and makes it almost impossible to do a clear-cut analysis of different stakeholders. Lutzker has elaborated some of the concerns of the library community, the information center of higher education and research institutes. In this section, two controversial lawsuits are discussed to demonstrate how the DMCA, especially its anti-circumvention regulations, can affect academia.


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Copyright and Fair Use

The purpose of the copyright law is not only to protect authors' rights (including reputation and financial profits) in order to provide incentives for creative activities, but also to protect use/diffusion/flow of information in order to ensure the advancement of art, science, and technology in human society. Copyright Act section 107 – 112 defines limitations on exclusive rights, among which the fair use doctrine is a very important mechanism for achieving such a balance. Copyright Act section 107 describes the Fair Use Doctrine.


Under such a provision, copyright owners are deemed to consent to fair use of their works by others. In addition to section 107, Copyright Law section 108 provides the provisions for the reproduction of copyrighted works in libraries and archives, and section 109 defines the first sale doctrine that allows the owner of a copy of a work to sell or dispose of the copy without the authority of the copyright owner. These doctrines and provisions are the legal cornerstones of library services. Many education activities and library activities, including book circulation, preservation, reserves for classes, inter-library loan, etc., are under the umbrella of the fair use doctrine. However, such a provision does not define fair use per se – fair use is often a "gray and sloppy" concept (Vaidhyanathan, 2001, p.27); rather, whether a use is fair use is determined by balancing those four factors. This made fair use often times a complicated and ambiguous concept. A common practice in schools and universities has been to follow the Agreement on Guidelines for Classroom Copying in Not-For-Profit Education Institutions with Respect to Books and Periodicals, reached in 1976 by various interest groups (Allner, 2004).


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DMCA and Control of User Rights

The DMCA does not explicitly redefine the fair use doctrine. On the contrary, the DMCA recognizes users' rights of copying under fair use umbrella. In order to comply with this doctrine, the DMCA makes a distinction between "access" and "copying" of copyrighted materials (U. S. Copyright Office, 1998). According to the U.S. Copyright Office, the DMCA does not prohibit users from circumvent technological controls to make fair use copies of copyrighted work because copying of a work may be a fair use under appropriate circumstances. However, users are not allowed to circumvent technological controls to access copyrighted works, since "the fair use doctrine is not a defense to the act of gaining unauthorized access to a work" (p.4). This is to say, a user must not only have a fair use right to use the material, but also have the permission to gain access to the work to make a fair use of it in the first place (Lipinski, 2003). As a result, the regulations on anticircumvention technology practically limit the rights of users traditionally protected by the fair use doctrine.


Click here for more discussion


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Case Studies


I will discuss two controversial lawsuits to demonstrate how the DMCA, especially its anti-circumvention regulations, can affect academia. The first case shows that the DMCA can help overprotect copyright and restrict users' rights. The second case shows that the DMCA can be used by certain groups against adademic freedom and scholarly communication.


Case 1: United States v. Sklyarov


Analysis of Case 1


Case 2: Felten v. RIAA


Analysis of Case 2


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Sum up: The Impact of DMCA on Higher Education and Libraries

The preceding cases demonstrate that the DMCA has the potential to control user rights and expand author rights, to be used by certain groups against research and academic freedom, and to impact scientific and scholarly communication. For libraries that are perceived as a voice for the public good, DRM technologies can impact first-sale, preservation activities, and institute pay-per-use pricing.

The DMCA does allow qualifying libraries and archives to make up to three digital copies of works in its collections for preservation and security of unpublished works under section 108(b); and for replacement purposes for items damaged, deteriorating, lost, or stolen, or in an obsolete format under section 108(c) (Lipinski, 2003). However, there is a limitation on the use of digital items: they can only be made available to the premises of the library or archive. This means it is very problematic and troublesome for the library or archive to provide remote access to their users, thus affecting distance education. In addition, higher education institutes and libraries have been demanded to take a more proactive role in monitoring and restricting the use of copyrighted materials.


Because of this, the American Library Association has expressed its concern that the DMCA has a "real and potentially adverse impact ... on the public's ability to make non-infringing use of copyrighted works" (Craig, 2003). Information has the potential to become increasingly privatized under the new copyright legislation. In response to such a trend, libraries, authors, education sectors, and research sectors have initiated the open access movement to bypass the commercial control of scholarly communication. The library community is calling for more sophisticated technology, rather than mere DRM which controls access, to support the heterogeneous applications and uses of digital content in higher education – eLearning, digital libraries, online collaboration, and institutional repositories (ALA, 2003).


In short, the DMCA provides limited exceptions to allow circumvention actions by libraries and archives to determine if they want to purchase a work, actions necessary to undertake reserve engineering, encryption research, security testing, and actions to protect personal privacy (Maxwell, 2004). However, law cases and the related events and discussions have shown that such exceptions are largely overweight by the overprotection of the copyright holders' rights. If we are to "make a choice" in the digital age (Lessig, 1999), such legislation has to be reconsidered and continue to be amended.


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See reference list for this section here

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