We are working to form a new coalition of individuals and organizations concerned about the expansion of copyright holders' rights at the expense of the rights of scholars, consumers and other members of the public, through the Digital Millennium Copyright Act of 1988 (DMCA) - particularly the Act's Chapter 12 "anti-circumvention" provisions.

The Coalition has been tentatively designated ACCESS (Americans Committed to Communication and Expression in Secure Systems). Groups that have expressed interest in being part of the coalition currently include the American Civil Liberties Union, the Association of Research Libraries, Computer Professionals for Social Responsibility, the Electronic Privacy Information Center, the National Council of Teachers of English, and the National Writers' Union.

Of most immediate concern are Secs. 1201(a)(2) and (b)(1) of the DMCA. These are the so-called "tools" or "anti-trafficking" provisions that impose civil and criminal penalties on anyone who makes or distributes any technology that could be used to circumvent access or copy controls on digital content. These provisions create an entirely new form of liability, going beyond the prohibitions found in the Copyright Act while failing to incorporate traditional safeguards for content users (such as the "fair use" and "first sale" doctrines.)

Imposed without appropriate exceptions and limitations, such expanded liability will prevent socially beneficial uses of knowledge and information. Thus, it not only runs counter to the spirit of American IP law; in addition, it poses an obvious challenge to the freedom of expression values that inform the First Amendment.

Moreover, these DCMA provisions have been broadly interpreted by some courts. In the recent Reimerdes decision, a federal judge in New York applied the DMCA to hold a defendant liable for distributing computer code (DeCSS) even in the absence of proof that it actually had been used to infringe copyright, and went still further to impose liability for mere links on a web site to other sites where the code was available. In addition, the judge ruled out any "fair use" defense to this new "paracopyright" liability, and gave short shrift to defendants' assertions that the DMCA chills speech protected by the First Amendment.

In fact, the DMCA already has had a very real chilling effect on the development of new technologies, research, and the distribution of truthful information by journalists and academics. The recent Felten case is one example: The recording industry issued a challenge to test the security of new copy control technologies, and Princeton professor Ed Felten and a team of researchers successfully participated. When the researchers planned to present a paper with their findings at a scientific conference, they were threatened by the recording industry with liability under the DMCA's anti-circumvention provisions. Felten and his colleagues withdrew their paper from the conference; instead they sued in federal court to obtain a ruling that their scholarship is protected speech, and that enforcement of the DMCA against them would violate the First Amendment. That lawsuit is pending in Trenton, New Jersey. It in response to developments such as these that the ACCESS coalition now is being formed.

The purposes of ACCESS are:

• To participate in litigation, either directly or as amici ("friends of the court"), to ensure First Amendment protection against any overbroad interpretation of the DMCA's anti-circumvention provisions.
• To educate the courts and the public about the threats that the DMCA poses to legitimate researchers, academics, librarians, journalists, and other fair users of digital content.

The members of ACCESS believe that the "tools" or "anti-trafficking" provisions of the DMCA must either be struck down on their face or interpreted to:

• protect the freedom of researchers to do and to discuss fundamental work in the field of computer science;
• protect the development of all information technologies that are capable of substantial non-infringing uses; and
• protect the ability of consumers to make fair uses of technologies that circumvent access or copy controls.

Membership Qualifications and Obligations

It is very important that we develop the broadest possible coalition of people in order to convince the courts and the public of the DMCA's dangerous threat to valuable speech and research. Thus, we are seeking individuals and organizations whose members may be directly affected by the DMCA. For example:

• Individuals who (or organizations whose members) create, research, or distribute technologies subject to the DMCA for any purpose protected by the First Amendment or permitted by traditional intellectual property law.
• Individuals who (or organizations whose members) use digital content controlled by technologies subject to the DMCA for any purpose protected by the First Amendment or by traditional limitations on the scope of copyright. Other Individuals or organizations who are concerned about the threats of private censorship to which new developments in intellectual property law give rise.

By agreeing to participate in the Coalition, members are not committing to participate in each Coalition effort. Rather, each member can make an individual decision about whether to participate in each activity, based on descriptions, draft submissions, etc., that will be circulated in advance.

There is no financial contribution required of Coalition members. If members choose to participate in any Coalition Activity, legal representation of coalition members will be provided without fee by a group of lawyers that includes ACLU lawyers Ann Beeson and Chris Hansen, and the staff of the Glushko-Samuelson Intellectual Property Law Clinic, American University Law School

The Coalition is currently planning to submit an amicus brief in the Felten case to provide examples to the court of the overbroad impact of the DMCA.

Ann Beeson
American Civil Liberties Union
abeeson@aclu.org or 212-549-2601

Peter Jaszi
American University
pjaszi@wcl.american.edu or 202-274-4216