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In this section...
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Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (click here for US Copyright Office analysis), which was enacted in 1998 to combat digital piracy, has had severe unintended consequences on computer science researchers. Unlike the recent Grokster Supreme Court decision, which prohibits behaviors that induce copyright infringement, the DMCA categorically bans many technologies that could be used to infringe copyright, even if their primary uses are legitimate. Especially in encryption and cybersecurity research, this has produced a chilling effect to researchers who fear running afoul of the law if they conduct and/or publish research that exposes flaws in digital rights management (DRM) or encryption algorithms or even suggest ways in which security systems could be compromised. Ironically, this leads to DRM being less safe and encryption algorithms being less secure, as reverse engineering of existing methods is the best way for identifying their flaws. As a result, the progress in these important fields of research is being unnecessarily hampered. Research on information processing systems and anti-malware programs has also been hampered by DMCA, since these areas of inquiry fall outside the limited exemptions the act offers.
The DMCA has also damaged the ability of the American computer science research community to interact with researchers from abroad. Largely because of several high profile civil and criminal actions brought under DMCA provisions, most notably those of Princeton University professor Edward Felten (of which Business Week provided excellent coverage) and Russian programmer Dmitry Sklyarov, foreign CS researchers have been unable or unwilling to attend conferences in the United States and to share their research with their American colleagues. This has allowed other countries to create technological advances in digital security that cannot be applied in the United States, giving America weaker data protection technologies than many competing countries.
Beyond basic research, the DMCA is stifling technologies from being developed and brought to market, and the act has been used in some situations in a deliberately anti-competitive fashion. Today's basic research will only lead to tomorrow's innovations if the path from basic research to development remains clear. The DMCA, by outlawing technologies rather than behaviors, erects significant roadblocks that harm innovation and competitiveness.
CRA recognizes the needs for intellectual property protection and supports legislation that targets criminal activities. However, the DMCA stifles research without providing real protections to copyright holders. Intellectual property protection law must balance the rights and needs of the IP holder with society's greater interests, and the DMCA has unfairly burdened society by preventing computer science research in key areas related to national security, product innovation, and IP management.
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Deemed export restrictions
When a foreign national is given access to a technology in the United States, it is deemed to be an export and must comply with export licensing restrictions in effect for that individual's country of citizenship and/or permanent residence. Recently, the Department of Commerce sought to change the rules regarding deemed exports in a number of ways that would radically affect the American computer science research landscape. (We blogged on this topic in June 2005.) Specifically, the rules as suggested would:
- Evaluate deemed export applications not just on country of citizenship and permanent residence, but on country of birth as well;
- Expand the definition of "use" of controlled technologies to any form of instruction on their operation, including access to manuals and, by a conservative reading, visual access to a machine or source code; and
- Exclude from the fundamental research exemption all research conducted under government sponsorship that is subject, either by regulation or prudential practice, to prepublication review.
Foreign citizens are a vital part of the American computer science research system and our IT workforce, and changes to the deemed export regulations would provide a substantial hinderance to American research in computer science without providing any real benefits to national security. CRA submitted comments as part of the public comment period when the rule changes were being discussed. We are currently awaiting a ruling as to whether the rules will be changed or not.
Certainly, it is in the best interests of computer science research and America's long-term prosperity to remove impediments that keep the best and the brightest CS researchers from around the world from coming to our shores.
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Visa issues
In addition to deemed export restrictions, visas for highly qualified students, post-docs, and researchers have been increasingly difficult to obtain in the wake of September 11, 2001. This has had a significant impact on computer science research in America. In 2002, the presidents of the three national academies released a joint statement arguing:
[R]ecent efforts by our government to constrain the flow of international visitors in the name of national security are having serious unintended consequences for American science, engineering, and medicine. The evidence we have collected from the U.S. scientific community reveals that ongoing research collaborations have been hampered; that outstanding young scientists, engineers, and health researchers have been prevented from or delayed in entering this country; that important international conferences have been canceled or negatively impacted; and that such conferences will be moved out of the United States in the future if the situation is not corrected.
In an era of increased globalization, it is vital that the US research community have access to the best minds from around the globe and that unnecessary visa impediments not be erected. Programs like the Student and Exchange Visitor Information System (SEVIS) have greatly reduced the risk of visa abuse, and the State Department should make every effort to increase the speed of visa processing and ensure that highly qualified foreigners who bear no ill will to the United States are not unnecessarily denied entry to America.
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Database protections
Despite the fact that the contents of commercial databases are protected under a variety of state and federal laws, there has been a movement over the last decade to change copyright laws to allow the copyrighting of collected public domain information. In other words, this would allow for people or organizations to copyright facts, and civil and criminal penalties would apply if these facts are intentionally or inadvertently disseminated.
The purpose of copyright is to, in the words of the US Constitution, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the five centuries of copyright law it has never been permitted to own facts, but there is a movement to change this basic precept of intellectual property protections, despite Supreme Court's ruling in Feist Publications v. Rural Telephone Service that a phone book is not copyrightable and that arranging entries in alphabetical order does not constitute creativity.
CRA believes that a database protection law, in addition to being unconstitutional, would undermine the ability of the scientific research community to conduct research by hamstringing the ability of researchers to learn from one another's work. For a fuller explanation, see the testimony Wm. A. Wulf gave to the House Committee on Energy and Commerce in 2003.
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Frequently Asked Questions
The FAQ will be developed as questions arise.
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Useful Graphs and Charts
Selected Nonimmigrant Visas Issued, 1992-2004
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Image in PDF (24k)
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