Pamela Samuelson thinks she knows
- samuelson, in the wall street journal - 5/13/02 -
Samuelson's Argument: Intellectual-property protection must be strong enough to give people the incentive to place their creative works in the public domain but not excessively strong. If protection is too strong, it can impede innovation. Samuelson is attempting to narrow the scope of the 1998 Digital Millennium Copyright Act (DMCA) because it currently makes it illegal to circumvent technology designed to protect copyrighted work. Samuelson is concerned that the DMCA will slow the work of cryptographers and software developers who rely on existing software to improve and create new programs.
Relevant Case Law:
1986, The Court of Appeals for the Third Circuit rules that creating new software based on existing software violates copyright when there is a "substantial similarity" in the "structure, sequence and organization" of the new software. Whelan v. Jaslo presented a situation where a programmer had created software for a company and then the company used that software to create and market similar software. The courts sided with the programmer and declared that the company had violated her copyright.
1990, The Supreme Court overrules the Third Circuit's ruling in Whelan with Lotus v. Borland. The court rules that no copyright infringement is present when programmers use the basic structure of existing software to create new software even when the programs share similar features and interfaces. The decision gave programmers more liberty to copy the "look and feel" of existing programs.
2000, Napster. The Court of Appeals for the Ninth Circuit rules that Napster, a company that had developed and maintained an Internet based peer-to-peer file swapping service, encouraged and assisted people in infringing upon copyrights held by the record industry. However, the lower courts preliminary injunction was overbroad and the appeals court placed a higher burden on the record labels to give notice to Napster as to which copyrighted works needed to be removed from their service.
2000, Corley. The Court of Appeals for the Second Circuit ruled that a publisher of an online magazine couldn't post software used to descramble DVD encryption codes. The software in question allows DVDs to be freely copied and distributed over the Internet. Samuelson argues that the courts should further narrow the DMCA to leave room for fair-use and free speech rights.
What’s Next: Currently, Samuelson is preparing to challenge the DMCA's provisions on removing or altering technology designed to prevent music and software from being freely distributed on the Internet and provisions limiting unauthorized copying of copyrighted works. Samuelson argues that the DMCA is being used to hinder research.
Here are some related links:
Q&A with Napster creator
Court upholds ban on DVD descrambling
Wall Street Journal
Articles about DMCA
Articles about current music copyright issues
Copy protected CD's
Summary by Kevin S. Mann - Delaware Law Office Law Clerk