What I Want: Next Steps Post-Censorship

As described in these documents [ http://www.ils.unc.edu/gbnewby/DVD/index.html ], I was censored by UNC from using some source code to play DVDs on Wednesday, April 12, 2000.

I am scheduled to teach the same course [ http://ils.unc.edu/inls183/home.shtml ] during fall semester, 2000. Here is what I would like to see happen in order for me to teach my next section of the class:

1. For UNC's Legal Counsel office to tell me that I can use any software I would like, and talk about any topic I would like, for my class. The only exceptions would be software (or software uses) that has been found illegal in a court with NC jurisdiction, or topics that have been found illegal in a court with NC jurisdiction.
2. For my academic unit, SILS [ http://www.ils.unc.edu/ ], to tell me that I can use any software I would like, and talk about any topic I would like, for my class with the exceptions mentioned above.
3. For UNC to develop a specific policy addressing the impact of the DMCA on faculty, students and staff. This must include clear interpretation of "fair use," academic freedom and copyright. UNC then needs to stand by faculty who adhere to this policy.

   My suggestions are that this policy:

   • Specifically supports faculty members in academic use of any materials or topic, electronic or otherwise, that that faculty member believes will benefit his or her class.
   • Specifically rejects any external tampering with faculty choices of class materials or topics, including from within UNC (e.g., the UNC Legal Counsel), from the state (e.g., the NC State Assembly) or special interest groups (e.g., groups who seek to ban or limit access to particular topics).
   • Allow only a clear legal ruling with jurisdiction over UNC Chapel Hill to modify UNC's position on the above points. Even in a case where a legal ruling has been made, allow a process of discussion and debate before tampering with faculty choices of class materials or topics.
   • Identify clear processes by which a question about the legality or other issues concerning faculty choices of class materials or topics may be processed. Minimally, this must include a public hearing where the faculty member and interested parties may present their points of view.

There are any number of relevant court findings and statements from organizations to support a strong stance on fair use of copyrighted materials in academic settings. Some contemporary examples include:

• Code is Speech. On April 4, 2000, the Sixth Federal Court of Appeals ruled that source code is protected as speech. The decision is available online [ http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=00a0117p ]. This decision is in stark contrast with the UNC Legal Counsel's opinion (as expressed in email to me) that forcing me to remove source code is not censorship, since I could still talk about source code. We need to recognize that source code has the same protection under fair use provisions of US copyright law and the US first amendment as any other type of speech.
• States, and State institutions like UNC, have a special relationship to copyright law (including provisions under the new DMCA). The University of Texas System has successfully claimed immuity against prosecution for copyright violations under the US 11th Amendment. The court decision [ http://www.ca5.uscourts.gov/opinions/pub/93/93-02881-CV1.HTM ] is available online, as is UNT's copyright instructions [ http://www.utsystem.edu/ogc/intellectualproperty/chavez.htm ] to faculty and staff.
• The DMCA is being challenged on virtually all fronts. Rather than pro-actively stifling faculty based on untested provisions of the DMCA, UNC needs to consider the many organizations and individuals that are challenging the DMCA, and how their cases might change the DMCA.

  Some of the challenging organizations include:

  • The American Library Association [ http://www.ala.org/washoff/ip.html ], which has recognized the possible chilling effect of the DMCA on their ability to perform fundamental tasks such as loan books. They have also taken a leading position against the use of censoring software (while Mattel, a manufacturer of such software, has sued independent software developers under the DMCA. See this article [ http://www.thestandard.com/article/display/0,1151,13533,00.html ]).
  • The Openlaw Forum [ http://eon.law.harvard.edu/openlaw/ ], sponsored by the Berkman Center at the Harvard School of Law, is involved in cases against several aspects of the DMCA and related legislation. This includes the 20 year copyright extension ("Sonny Bono Copyright Term Extension Act") and the Open DVD/DeCSS.

First version: April 23, 2000

Copyright (c) 2000 Gregory B. Newby. Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License [ http://www.ils.unc.edu/gbnewby/DVD/COPYING-FDL.txt ], Version 1.1 or any later version published by the Free Software Foundation.