by Donna Demac

In the United States, freedom of speech has meant something like this: the government is forbidden under the First Amendment from censoring or punishing speakers, including the press, for what they say. A balance must be sought between uninhibited public debate about public issues and the state’s interests in national security. Historically, the courts have treated art as less important than overt political speech. Yet, during the last decade, courts have recognized the importance of art in a series of cases involving street artists, libraries, museums and more.

Today, freedom of speech has been strained in a way that affects everyone, due to the preoccupation by industry and government with the opportunities afforded by digital technology. In 1998, Congress passed and President Clinton signed the Digital Millennium Copyright Act (DMCA), which imposes new ground rules for communication via electronic media, such as the Internet and personal computers. In practical terms, the DMCA legalized technical controls on access to electronic works; it renders obsolete traditional rules for reading and sharing print materials and, simultaneously, enables content owners to implement a pay-per-use system that controls who has access, when, how much and from where. So, for instance, you can lend a paperback to friends, but you aren’t allowed to do the same thing with an electronic book.

In addition, the DMCA allows copyright holders to control the devices, such as DVDs, that play or transmit copyrighted material. Just consider the example of a DVD player that disables the user’s ability to fast-forward but allows copyright holders to insert advertisements.

Napster was one of the early targets prosecuted under the DMCA. By encouraging millions of computer users worldwide to exchange music files, it put the recorded music industry in turmoil. The industry’s trade group, the Recording Industry Association of America, (RIAA), launched a massive legal assault against Napster and the other file-sharing systems, charging them with wholesale copyright infringement. RIAA even targeted users of these systems, including students. In September, after RIAA faxed a complaint to Oklahoma State University, campus police seized a computer owned by a 19-year-old student whom they accused of infringing copyright law by offering free downloadable music from a computer linked to a school server. The student did not appear to be profiting from the alleged "piracy." Many other universities were also under pressure from the RIAA. Notre Dame, Indiana University, the University of Southern California and Yale complied with the RIAA’s request that they ban Napster, while other schools, including Harvard, Princeton and Stanford, refused to do so.

The copyright doctrine of fair use was at the center of the Napster controversy. This is an equitable remedy originally crafted by judges long ago to overcome monopoly-type behavior by copyright owners. It reflects the positive emphasis on access to information in the Constitution and, in copyright law, stands for the principle that certain kinds of reproduction and modification of a work do not require the permission of the copyright holder. Some of the areas encompassed by fair use are news reporting, scientific research, education and criticism. Lately, fair use has been extended to cases involving the creation of rap music and ephemeral characters for video games.

Bowing to mainstream media and music industry lobbyists who insisted that fair use is not appropriate to the digital age, fair use was downplayed in the DMCA. David Boies, Napster’s lead attorney, (who successfully argued the Justice Department’s antitrust case against Microsoft) argued that Napster was eligible under fair use. He further argued that effectively lodging control in the hands of five record companies was tantamount to a prior restraint on speech.

Battles over technology and free speech aren’t simply about commercial interests and users of the technology. The issues are more complicated now. There is the serious risk that new copyright laws will chip away at fair use?free expression and artistic freedom?as legislation undermines the longstanding principle that copyright requires a balancing of the objectives of content owners and many groups in society. A question to consider today is whether traditional principles will survive in the future or will the public accept technical devices as the gatekeeper of their access to content and technology?

Donna Demac is on the board of NCAC. Her publication "Is Any Use Fair in a Digital World? Toward New Fair Use Guidelines for Educational Use of Digitized News, Text and Music" was published in 1996 and is available for free from the Freedom Forum in Arlington, Virginia by e-mailing puborder@freedomforum.org or by calling (800) 830-3733 and asking for # 96-M01.