Solveig Singleton - The DMCA Dialectic: Towards Constructive Criticism
Solveig Singleton has written a "pro-DMCA" report, in part replying to an earlier Tim Lee "anti-DMCA" paper. The pro-DMCA arguments are being extensively criticized e.g. by EFF and Ed Felten's (not) "Happy Endings". Against my better judgment, I looked at the report, and immediately spotted some deeply flawed discussion of Linux and the decryption of DVD's (DeCSS). For whatever good it'll do, since I know something about the topic, I'll toss this into the rebuttal of the DMCA defense. Solveig Singleton states:
Tim Lee's recent paper for the Cato Institute unfortunately contains a number of errors: ... Describing the DVD-CCA, which licenses CSS keys, as having neglected the development of Linux players, and attributing the development of DeCSS to this failure. First, CSS keys are licensed to anyone willing to comply with the license and pay the $15,000 application fee. Licensed Linux players include software such as Linspire, and LinDVD, as well as hardware such as MediaReady Digital Media Center product line from Video Without Boundaries, and have been available for a number of years. Furthermore, DeCSS was developed as a Windows product and the thesis that it was developed primarily to support Linux as opposed to simply break DRM is highly dubious.
1) The development of a free software Linux DVD player was indeed driven by lack of availability of licensed Linux DVD players at the time (let's not quibble over whether to call that "neglect" or not).
Below are the relevant refutations from Matthew Pavlovich's trial testimony
A. After getting to the point where we had gotten to where we needed to begin the DVD project, I spun a sister project off from Utah GLX that became known as the Linux Video project or for short, LiViD.
Q. Why did you start LiViD?
A. Quite frankly, I wanted to play DVDs on my Linux box. I received documentation for a hardware decoder that worked with my video code at the time and I wanted to be able to utilize that decoder chip and the DVD drive and movies I bought under Linux.
2) While the DeCSS program is what led to the court case, the history shouldn't be read apart for the whole development project for a Linux DVD player, which was inarguably about playing DVD's on Linux.
Q. Was DeCSS part of or connected to the LiViD project?
MS. MILLER: Objection, your Honor, no foundation.
THE COURT: Overruled.
A. Yes, the DeCSS has actually a long history of being related to the LiViD project. The CSS project or CSS process has a few phases, the authentication between a decoder or the piece whether it be hardware or software that takes the DVD data and converts it here in audio and video presentation and the actual decryption where it decrypts the encrypted content.
The first part of that process was the authentication and that was written and released for and under the LiViD project. DeCSS utilized the CSS routines from the LiViD project as a piece of DeCSS. DeCSS, the source code was later translated, the core functions were used in the decrypting part of the DeCSS for the Linux video player.
3) And the Windows aspect means less than one might think.
A. The file system found on DVDs is the UDF support for Linux was in infancy at the time, so one would need to have access to read the data before being able to decrypt the data on the disk, so yes someone would have to use windows or an operating system that supported UDF to develop DeCSS.
That one paragraph took me a page, and more time that I should have spent on it, to dissect. One other note, going back to Solveig Singleton:
Commentary on the DMCA at this point needs to be less strident and much more constructive. If the process for deciding which applications should be exempted from the DMCA is not working well in some areas, how could it be improved? Exactly how could the exemption for security and encryption research be strengthened without transforming anyone with a little technical skill and an ideological bent against DRM into a "researcher?" Or is it rather the hope of critics that this would happen?
Solveig, am I someone with "a little technical skill and an ideological bent", or a researcher? (for the purposes of a lawsuit, these are obviously disjoint categories - it's trivial to joke "both", but one can't be a little bit sued). That's not a completely rhetorical question. If the apologism algorithm is to trivialize the DMCA issues against high-status people (Felten), and to sneer at the DMCA issues against low-status people (DeCSS), that's a poor start from which to call for less strident and more constructive commentary.
By Seth Finkelstein | posted in dmca | on May 12, 2006 08:03 AM (Infothought permalink)
Just a quick response. DeCSS was developed initially "in connection" with efforts related to trying to develop a Linux player. However, relations between DeCSS developers and the Linux developers working on projects like DoD were not always good, which I why I think that DeCSS was an odd choice of program to champion. For example, DeCSS developer Jon Johansson borrowed some of Derek Fawcus's code, but did not attribute it to him, nor did JJ release the DeCSS code under the GPL, which he ought to have done if he wished to use DF's code. They later negotiated a private license. JJ also reportedly did not want to release the source code for DeCSS at all. I think a project like DoD has a stronger claim to being an open source effort.
In a short paper, it is difficult to do justice to everyone's arguments. I did not intend to sneer at anyone. My larger point remains; if the DMCA is necessary or probably necessary, and reforms are needed, well, what should they look like? How does one avoid the exception swallowing the rule? If the DMCA is not needed, then, well, that is a different argument (one that I think is much more interesting) and one that my paper did not really address; I expect I'll blog on that shortly.
As for you, Seth, I will cheerfully concede that you are a hard case.