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Copyright (c) 2003 Lawrence Erlbaum Associates, Inc. 
Communication Law and Policy

ARTICLE: Playing Fair with Fair Use? The Digital Millennium Copyright Act's Impact on Encryption Researchers and Academicians

Winter, 2003

8 Comm. L. & Pol'y 111


Cassandra Imfeld *


Enacted in 1998 to "facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age," 1 the Digital Millennium Copyright Act has turned the Copyright Act of 1976's fair use defense on its head and created an uncertain environment for many encryption researchers and academicians. Under the DMCA's "trafficking" provision, an individual who disseminates a "technology, product, service, device, component, or part thereof" 2 that discusses how to circumvent 3 encrypted devices can face civil or criminal consequences. Researchers and educators, for example, who publish articles or present papers discussing how to bypass the encryption device on a DVD to access a copyrighted work for educational or commentary purposes could face criminal and civil penalties.

In addition, the DMCA's "fair use" exemption for encryption research, as will be demonstrated, dangerously narrows the fair use defense that once offered protection against copyright infringement under the Copyright Act of 1976. As a result, the DMCA has chilled the work of many encryption researchers and educators around the world. For example, Dutch cryptographer Neils Ferguson, who discovered a security flaw in an Intel video encryption device, decided "to censor myself and not publish this paper for fear of prosecution and/or liability under the U.S. DMCA law." 4 In 2002, the Institute of Electrical and Electronics Engineers temporarily suspended acceptance of papers that could have challenged the DMCA. 5 According to its Web site, IEEE "produces 30 percent ...
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