Software Copyright – Digital Millennium Copyright Act (DMCA)
In 1998, President Bill Clinton signed into law the “Digital Millennium Copyright Act.” Sometimes called DMCA, it is also known as PL105-304. This was a significant addition and support for copyright law for several reasons. It clarified some complicated issues for users and offered international protection for owners of software copyrights.
Part of DMCA included a requirement that the law be re-authorized every three years. This requirement reflects the fact that technology is changing at a rapid place. Owners of copyrights for software will need new protections to protect them from new challenges, and software users will benefit from having important issues clarified. For example, the 1998 authorization explicitly states that people may make backup copies of software to facilitate computer maintenance (MSCU).
The most recent re-authorization of DMCA is called “TEACH,” for “Technology, Education, and Copyright Harmonization.” This re-authorization addressed specific new issues, including transmissions of performances, which relates to distance online learning, and the use of copyrighted information in educational displays (NCSU).
One example from DMCA illustrates the need for a law constructed to respond to the rapid nature of technological changes. Previous copyright laws did not address the issue of people who devise ways to circumvent protections software manufacturers might put on their software to prevent copying. DMCA specifically prohibits bypassing such programming to make unauthorized copies of digital material, including software.
Pirating,” or obtaining licensed software without paying for it, has been a major concern for software manufacturers. The provisions in DMCA were followed by the “Digital Theft Deterrence and Copyright Damages Improvement Act of 1999,” HR 3456 (ARL). This law increased fines for pirating software.
TEACH, which was passed in November of 2002, contains recommendations made by the United States Copyright Office, and specifically addresses complications regarding fair use stemming from the growth of distance learning, or taking classes over the Internet without physically attending the university doing the instruction.
While it would be easy to see these laws as putting restrictions on software users, some experts feel that TEACH broadens their choices for online education. However, it does also clarify use limitations. In the long run, most educational institutions want to work within the bounds of the law. The clearer the law is, the more certain they can be that their usage is within legal use. One requirement in TEACH clarifies the need to use copyright notices. Under TEACH, schools must credit not only contributors to information but the software as well. So, for instance, if an online history course uses information compiled from a variety of books and other publications, they must cite those sources. But in addition, they must cite the program used to present the information. If they use PowerPoint, they must acknowledge the use of that program (ARL).
These requirements are in addition to laws and regulations previously on place. The laws are intended to give software publishers the same protections text publishers have. Just as it is illegal to photocopy textbooks to avoid buying published copies, schools cannot copy software for use on multiple computers unless they have purchased a multiple-use license. Then, they must restrict the number of copies to the number authorized in their purchase. They may not install personal copies of software they purchased for home use on a school computer; or make copies of school-owned software for either home use or to share with parents and students.
In addition, the laws address the use of shareware. Sometimes people think of shareware as “free,” but it is not, and schools may not use shareware beyond the date at which the shareware copyright owner demands payment. In addition, although freeware is free in that the school does not have to pay for it, the law states that people may not sell freeware. Schools are not likely to do that, but they also cannot alter the freeware for any kind of commercial purpose, even if their goal was to support educational goals in some way (Education World).
The cumulative effect of these laws require that schools (as well as everyone else) use commercial software only in those ways strictly supported by the school’s sales or licensing agreement. However, the application of these laws is often situational – that is, circumstances may determine whether copying some software is “fair use” or not. Thus, a school can make copies of a word processing program for limited home use by teachers if using that software is integral to school functioning and if teachers complete some of that work at home. Teachers may not, however, make a copy of a program simply because they would like to have it for personal use at home. This distinction may be lost on teachers if they are simply handed copies of software owned by the school with no explanation of why those particular copies are legal when others might not be (Education World). All of these laws continue to allow schools to make archival copies of software – backup copies to be used only if they need to erase and resinstall the software for some reason.
School libraries have additional concerns regarding the software used on library computers when those computers will be used by students and staff as well as library personnel.
No doubt some educators find the laws complicated and cumbersome, but this reflects the complex nature of regulating rights in an area that grows and changes so rapidly. If schools are going to use computers, they must accept the requirement that they do so honestly and without violating the rights of those who created the software they use.
Bibliography
Association of Research Libraries (ARL). “A History of Copyright in the United States.” Accessed via the Internet 6/2/09. http://arl.cni.org/info/frn/copy/timeline.html#20C
Education world. “Applying Fair Use to New Technologies.” Accessed via the Internet 6/2/09. http://www.education-world.com/a_curr/curr280d.shtml
Minnesota State Colleges and Universities (MSCU). “Copyright Law/History,” in Intellectual Property and Copyright. Accessed via the Internet 6/2/09. http://copyright.mnscu.edu/introduction.htm
NCSU. “The TEACH Toolkit.” Accessed via the Internet 6/2/09. http://www.lib.ncsu.edu/scc/legislative/teachkit/
North Carolina Conference of English Instructors (NCCEI). “Copyright and Fair Use Guidelines for Teachers.” Accessed via the Internet 6/2/09. http://www.nccei.org/blackboard/copyright.html
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