"What freedoms will we incinerate to protect a business model?"
I go through the history of these sorts of controversies, attempting to place this one in context from the strong-cryptography debate involving Pretty-Good-Privacy (PGP) and RSA encryption, to the predecessor DVD DeCSS lawsuit (as well as doing my small - very small - part to correct some myths which have grown up around them).
Then I try to convey the "paracopyright" problem, that copyright has spawned a kind of "Official Secrets Act" regarding access control systems,
I also attempt to explain what's going on in terms of the DMCA legal reasoning, but I'm not sure I'll make much headway there.
I support the FAIR USE Act (per EFF)
But then, you knew that already ...
Finally, the bill would loosen the grip of the DMCA, which restricts circumvention of digital rights management (DRM) restrictions even for lawful uses. The FAIR Use Act adds 12 exemptions, including the ability to circumvent for classic fair use purposes like news reporting, research, commentary, and criticism.
Broader DMCA and copyright reform remains absolutely necessary, but if passed this bill would be a big first step in the right direction.
Unfortunately, I doubt my blogging about it will do any good, because of preaching to choir (or to the "opposition researchers", but same thing).
[Update: memesterbation (linking because everyone else is linking ...) ]
Per AP, the US Copyright Office has now issued the 2006 anticircumvention exemptions for the Digital Millennium Copyright Act (DMCA).
http://www.copyright.gov/1201/docs/fedreg_notice.pdf
"Although the notice of proposed rulemaking made clear that proponents of renewal of an existing exemption must make their case de novo, proponents in the current rulemaking proceeding made no attempt to make any factual showing whatsoever, choosing instead to rest on the record from three years ago and argue that the existing exemption has done no harm, that nothing has changed to suggest the exemption is no longer needed, and that if anything, the use of filtering software is on the rise. In a rulemaking proceeding that places the burden of coming forward with facts to justify an exemption for the ensuing three-year period on proponents, one cannot assume that the elements of the case that was made three years ago remain true now. Nor is there any evidence in the record that there has been any use of the exemption in the past three years, or that there would be likely to be any use of an exemption during the next three years. While this is not necessarily fatal, nevertheless a record that reveals no use of an existing exemption tends to indicate that the exemption is unnecessary. Together, the absence of any quantification of the current scope of the problem along with the absence of any demonstration that the existing exemption has offered any assistance to noninfringing users leaves a record that provides no basis to justify a recommendation for renewal of the exemption."
According to a story making the rounds of the bogosphere, "Circuit City Flouts The DMCA For A Tenner"
Well, well, well! Look who's violating the Digital Millennium Copyright Act! For only a couple of fins, Circuit City will take your DVD and an iPod and flagrantly breach copyright at your behest.
When I read that story, it struck me as unbelievable. I could not imagine a large chain store setting up a DVD duplication service, without authorization. These people aren't going to fight the MPAA just for fun.
So I called Circuit City for some fact-checking.
According to Bill Cimino, Circuit City Director of Corporate Communications:
"The sign is incorrect and not authorized and we are in the process of making sure the sign is removed"
"We offer two services. In a small number of stores, we will transfer your commercial CD's to a DVD, and in other stores, we will transfer your home VHS to a DVD. We do not transfer pre-recorded VHS or DVD, to DVD"
Folks, apply common sense. It's a lot more believable that someone got service details wrong, or even did some under-the-table moonlighting, than that a large corporation has an official DVD-copying service.
The "CleanFlicks" case concerning bowlderization versus copyright is prompting much tech/law discussion, see e.g. Joe Gratz and Ed Felten
Side 1: Companies, e.g. "CleanFlicks", which take existing movies and
make version with offense parts cut out.
Side 2: Movie studios, etc.
Legal Issue: Is a bowlderization service a violation of copyright, even if the
company buys an unaltered copy first, and is doing it For The Childen?
Court's answer, so far: Yes (note this is different from the "Family Movie Act", which addressed making on-the-fly alterations, not permanent copies).
In terms of having something original to add to the commentary pile, I'd just like disagree with my pundit brethren regarding the speculation that the reason the movie studios didn't bring a DMCA claim against the bowlderizers was that the studios did not want to inflame social conservatives against the DMCA. That doesn't make sense, as social conservatives have more than enough to be outraged in the lawsuit itself (and now, the unfavorable decision). Such fine distinctions as the exact nature of the legal claims are very much inside baseball, details. No, I believe the reason a DMCA claim was not made has much more to do with not presenting a court with the fabled sympathetic DMCA circumvention defendant, one charged with circumvention but making fair use in a socially approved cause (and you can't get more sympathetic than For The Children, that's better than even prestigious academic researchers!)
Think it through: If the studios win on the copyright claim, there's no need for a DMCA claim. If the studios lose on the copyright claim, they could then bring a DMCA claim. So they have nothing to gain from starting with a DMCA claim, and risk enormous loss in having a court possibly scale back the extent of the DMCA (especially given the temptation to be swayed by the perceived virtues of the defendant). Thus, it's strategically obvious what to do based simply on risk/reward ratio.
Anyway, politics makes strange bedfellows, err, parlorguests.
Another pro-DMCA paper which trivializes the Digital Millennium Copyright Act (DMCA)'s chilling effects on research has prompted a rebuttal comment from Ed Felten:
DMCA boosters can repeat the speech-was-not-chilled claim as often as they like, but it's still false. There are two big examples of the chill. First, WE ACTUALLY DID WITHDRAW THE PAPER FROM PUBLICATION at the Information Hiding Workshop. Second, ONE OF MY COLLEAGUES LOST HIS JOB BECAUSE OF THE PAPER. Sorry for yelling, but I'm sick of having this lie repeated.
At the time we filed our suit, the RIAA and SDMI had not withdrawn their threats -- they told the press that they had never objected to our paper (which was false) but they refused to tell us that they would not sue if we published the paper. And note that the RIAA and SDMI were not the only two parties that had threatened us. The other party, Verance, had done nothing to withdraw their threat. It was only after we filed our lawsuit that all of them promised definitively not to sue.
In fact (before recent posts about it) *I* didn't know about the person who lost his job because of the paper, and I've probably followed the case more closely than 99.9+% of anyone interested.
But sadly, the issue is intrinsic to the politics of the pro-DMCA argument. To wit: If the DMCA hurts "good" people, there's a problem. So DMCA advocates are driven to say it only hurts "bad" people - and thus any "good" people affected must be either a) not really "good" or b) not really affected. It's problematic to impugn the high status which accrues to a Princeton professor, so that leaves attacking the effects.
To fair, from the outside it's sometimes hard to distinguish truth from hype. This is one reason I believe wolf-crying "journalists" do much harm, by raising phony alarms (but then, I'm bad at politics). And many people have very misleading ideas about how much support is available for civil-liberties defense (see, e.g. the CyberPatrol case - "What I found out was that those organizations, through no fault of their own, were able to give me a lot of sympathy and not enough of anything else, particularly money, to bring my personal risk of tragic consequences down to an acceptable level, despite, incredibly, the fact that what I had done was legal.")
I really don't know how to counter this. I get too much grief myself, even from activists who should know better, when talking about the risks of the DMCA.
Update: Bill Herman has a long rebuttal to the pro-DMCA paper.
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.
EFF has released a new DMCA report :
Unintended Consequences: Seven Years under the DMCA
I'm mentioned:
Censorware Research Obstructed
Seth Finkelstein conducts research on "censorware" software (i.e., programs that block websites that contain objectionable material), documenting flaws in such software. Finkelstein's research, for example, revealed that censorware vendor N2H2 blocked a variety of legitimate websites, evidence that assisted the ACLU in challenging a law requiring the use web filtering software by federally-funded public libraries.
N2H2 claimed that the DMCA should block researchers like Finkelstein from examining it. Finkelstein was ultimately forced to seek a DMCA exemption from the Librarian of Congress, who granted the exemption in both the 2000 and 2003 triennial rulemakings. The exemption, however, has not been a complete remedy, since it is limited to the act of circumvention, and does not permit researchers to create or distribute tools to facilitate research.
Collected noteworthy items, on censorware/DMCA and my past work.
Electronic Frontiers Australia (no relationship to US EFF) has a report out opposing a proposal by an Australian political party to require mandatory ISP censorware, if that party gets into power.
http://www.efa.org.au/Issues/Censor/mandatoryblocking.html
My work is cited in the middle of the report (sometimes it seems that that I'm more cited in Australia than my own country!).
Last week, the DMCA Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures had a hearing on censorware, as part of that process. As a very small milestone in my quitting activism, let the record show I did not testify. The experiment was run, the measurement's been done, the bad guys won :-(.
Speaking of the DMCA, a doggerel take-off song I wrote a while back, "YesterDMCA", has been recorded and posted to the web, by Quentin Smith. For the brave of heart:
And touchingly, Domoni at templeofme.com wrote many kind words about my censorware work (concluding: "While I was an administrator I fought censorware locally. Seth fought it globally. I know what I'm about to say isn't enough. It's all I have to give. Seth, you have my respect. Thanks."). Thank you.
EFF: http://www.eff.org/deeplinks/archives/004329.php
The U.S. Copyright Office received 74 comments proposing exemptions to the DMCA's anti-circumvention provision as part of its triennial DMCA rulemaking proceeding. In this and subsequent posts, we will summarize the key exemption proposals made in this first round of comments. If you can offer specific factual or legal arguments in support of these proposals, we urge you to file a reply with the Copyright Office before the February 2, 2006 deadline. For a helpful guide to filing replies, see Seth Finkelstein's Winning (DMCA) Exemptions, The Next Round. ....
[I've updated to 2006 my reply comment "round 2" DMCA guide:
http://sethf.com/publications/dmca-guide-2.php
]
The U.S. Copyright Office - Anticircumvention Rulemaking (for the Digital Millennium Copyright Act) is now accepting REPLY Comments on Anticircumvention Exemptions:
The Copyright Office is conducting a rulemaking proceeding mandated by the Digital Millennium Copyright Act, which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of measures that protect access.
Before considering submission of a reply comment, please read about the scope of this rulemaking.
As a part of the rulemaking, interested parties were invited to submit comments in November 2005. These comments are available for viewing from our comments page.
Reply Comment PeriodThe Copyright Office will be accepting reply comments from January 4, 2006, until 5:00 P.M. EST on February 2, 2006. Persons who oppose or support any exemptions proposed in the initial comments now have the opportunity to respond to the proposals made in the initial comments and to provide factual information and/or legal argument addressing whether a proposed exemption should be adopted. ...
Sigh ...
[Scoop? Scoop? Not a news echo! You heard it here first!]
The U.S. Copyright Office - Anticircumvention Rulemaking (for the Digital Millennium Copyright Act) has now posted the Comments on Anticircumvention Exemptions:
Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works
The Copyright Office received 74 comments in response to its notice of inquiry in this rulemaking. A significant number of these comments do not adhere to the requirements of the Office's Notice of Inquiry. For example, a number of commenters have failed to propose a "class of works," have proposed broad classes without factual support for such a class, have not identified a causal connection between a noninfringing use and the prohibition on circumvention, or have not identified an access control that would implicate the prohibition of circumvention. While the value of such comments to this statutory inquiry is questionable, the Copyright Office has decided to post these comments.
It should be noted, however, that the reply comment period is an opportunity to be responsive to the initial proposals, and the Office will only consider reply comments that provide additional facts and/or arguments in further support of or in opposition to genuine proposals for exemptions contained in the comments that appear below. The only mechanism for raising new proposed exemptions at this time is the discretionary petition process discussed in the last paragraph of the Notice of Inquiry.
Sigh ...
First, one note: Someone said it wasn't clear if I had in fact not made a DMCA exemption proposal. The die is cast, the deadline passed, I did not submit anything. It breaks my heart, but it also means I won't be (as much of) a target as a point-man, and on the balance, that seems to be the right decision.
On the topic of participation, Ed Felten wrote:
Many people decided not to submit exemption requests in this round, because of the way previous rounds have been handled. For example, the EFF argues that the process is so strongly tilted against exemptions, and the Copyright Office tries so hard to find excuses not to grant exemptions, that there is no point in asking for one. Even Seth Finkelstein, the only person who has had any real record of success in the process, decided to sit out this round. I submitted requests for research-related exemptions in 2000 and 2003; and having seen how those requests were handled, I sympathize with the skeptics' position.
Nevertheless, I think it's worth asking for this exemption, if only to see whether the Copyright Office will acknowledge that copy protection technologies that install spyware or otherwise endanger the security or privacy of citizens are harmful. Is that too much to ask?
Way down in the post's comments, Fred von Lohmann (EFF attorney) explained:
Just a brief clarification: EFF's view is that the DMCA exemption process is broken for the kinds of exemptions consumers are interested in (exemptions needed for lawful uses of CDs and DVDs). With respect to consumer-related uses, the various presumptions erected by the Register of Copyrights makes an exemption effectively impossible to get.
We continue to believe that the process could prove useful for exemptions aimed at non-consumer users (like Ed and Alex). We'll have to wait and see what the Register recommends. I will note, however, that Ed asked in 2003 for a very similar exemption for studying CD copy protection, only to have it rejected for formalistic reasons.
My view concurs with EFF's view, but I approach it from my own unique perspective. There's an unreasonable burden one needs to surmount. Recall this sentence from EFF's report: "Meeting these onerous requirements generally requires the assistance of specialized copyright attorneys, technical experts, researchers, and industry analysts.".
Now, if you are a technical expert, AND have the assistance of specialized copyright attorneys ("We'd like to thank Aaron Perzanowski and Deirdre Mulligan of the Samuelson Clinic at UC Berkeley, whose great work made this possible."), with the reputational protection of a position at a prestigious university, as well as an extensively-read platform for positive publicity, *plus* a substantial fan-base of support - well, GO FOR IT!
Unfortunately, these advantages aren't common.
And more deeply, any process that depends on finding people with such a combination of qualities, as a prerequisite for preserving fair-use rights, simply sets the bar too high. It doesn't do what needs to be done. This is all part of the overall battle of the shifts in the right of fair-use vs the extent of the limited monopoly granted to copyright owners.
That all being said, I'm by no means calling for a boycott of the process (indeed, I was just nominally being supportive of other exemption attempts). And though I hardly speak for EFF, it's safe to say they aren't trying for a boycott either. I've tried to help people where I could, to understand the process and increase their chance of success. But on the other hand, I think there's value in describing the adverse conditions which make a mockery of the idea of a "safety valve" for user's rights.
DMCA Triennial Rulemaking: Failing Consumers Completely is EFF's posting on their report "documenting why we believe the process is so broken that we have decided not to propose any [consumer-oriented] exemptions this time."
I concur. I wholeheartedly agree with the sentiments.
The most relevant part of the report concerning public participation is the section:
B. Impenetrable Complexity, Impossible Burdens.
For example, any individual interested in participating meaningfully in the 2006 rulemaking procedure must begin by reading the 6-page 2005 Federal Register Notice, the 30-page 2003 Determination and Final Order, the Register's 200-page recommendation memorandum in the 2003 proceeding, and the 18 page Final Rule issued in 2000. Each of these documents is written by and for those familiar with many of the most complex and arcane provisions of the Copyright Act.
Moreover, the Copyright Office requires that those seeking DMCA exemptions:
[long list of requirements]
Simply put, this does not facilitate participation by members of the public. Meeting these onerous requirements generally requires the assistance of specialized copyright attorneys, technical experts, researchers, and industry analysts. Without expert assistance, individual digital consumers cannot reasonably gather the expertise and devote the time necessary to participate successfully in the DMCA rulemaking process.
Even with expert assistance, the burdens imposed by the Copyright Office on participants often prove nearly insurmountable. ...
I hereby attest: I went through those burdens, and EFF is not exaggerating or hyping. The description nearly insurmountable is accurate. The process is broken, and DMCA reform must come from other avenues.
This doesn't seem to be widely echoed, so I'll help out.
Catch 1201: A Legislative History and Content Analysis of the DMCA
Exemption Proceedings
Bill D Herman
Oscar Gandy
Abstract:
17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings. [...]We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law's intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights' interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.
[Via ShoutingLoudly]
I'm mentioned:
"In the case of the circumvention to gain access to lists of websites blocked by content-filtering software, [Marybeth Peters, Register of Copyrights] even commends the exemption's proponent, Seth Finkelstein, as providing an example to teach future proponents how to meet the burden of proof: The case made by Mr. Finkelstein for this exemption is also instructive for the manner in which it met the requisite showing. [...]"
[Not a news echo!]
http://www.copyright.gov/1201/comment_forms/index.html
"The Copyright Office is conducting a rulemaking proceeding mandated by the Digital Millennium Copyright Act, which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of measures that protect access."
"The deadline for electronic submissions is 5:00 P.M. E.S.T Thursday, Dec. 1. Commenters are strongly encouraged to submit comments well in advance of the deadline to allow sufficient time to correct any format defects and resubmit comments before the deadline."
[ See also: http://sethf.com/publications/dmca-guide.php ]
http://www.eff.org/deeplinks/archives/004089.php
"As part of the Digital Millennium Copyright Act (DMCA), Congress instructed the U.S. Copyright Office to consider every three years whether we need exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka Digital Rights Management or DRM) used to lock up copyrighted works. So if you want to make a legitimate use of a piece of media, but have been turned back by DRM and the DMCA, now is your chance to take your case to the Copyright Office and try to make the world a happier and safer place for the next three years. As two-time-successful-exemption-requester Seth Finkelstein says: "The lawsuit you prevent may be your own."
[Echoed for an obvious reason :-)]
http://sethf.com/publications/dmca-guide.php
It turns out my work has been helpful in terms of a submission to the Australian "Committee to inquire into and report on technological protection measures (TPM) exceptions". That is, the government of Australia is going through a process similar to the US Library of Congress, considering exceptions to "a liability scheme for certain activities relating to the circumvention of `effective technological measures'."
I didn't want to mention this until the material was on the site. But the submissions have now been posted. There's one from Danny Yee, which reads:
Dear secretary,
I wish to request an exemption for
Compilations consisting of lists of websites blocked by censorware ("filtering software" applications....
As background to understanding this exemption, I recommend the submission to the Library of Congress inquiry by Seth Finkelstein, available at
http://www.sethf.com/anticensorware/legal/dmcacom.php
With the permission of the author, I append an excerpt from that submission.
I'm happy to see my efforts help make a difference.
http://lwn.net/Articles/154546/
Apply now for DMCA exceptions - Yhe Digital Millennium Copyright Act includes a provision allowing the Library of Congress to exempt certain activities from the anti-circumvention clause ... See also Seth Finkelstein's guide on writing DMCA exemption requests.
Not directly connected, but on the same topic, it turns out that Australia had a somewhat similar exemption requests for comments
On 19 July 2005 the Attorney-General, The Hon Philip Ruddock MP, asked the Committee to inquire into and report on technological protection measures (TPM) exceptions.
The Committee invites interested persons and organisations to make submissions addressing the terms of reference by 7 October 2005 if possible.
Per "export" of the DMCA from the US to Australia:
Chapter 17 of the Australia-United States Free Trade Agreement deals with intellectual property rights. Article 17.4 stipulates the parties' obligations in relation to copyright.
Article 17.4.7 requires the Parties to create a liability scheme for certain activities relating to the circumvention of 'effective technological measures'. The Parties may introduce exceptions in the liability scheme as specified in Article 17.4.7(e)(i) to (vii) or pursuant to Article 17.4.7(e)(viii).
Deja Vu. In a bad way.
I've updated my DMCA exemptions guide:
"How To Win (DMCA) Exemptions And Influence Policy"
http://sethf.com/publications/dmca-guide.php
It was originally written for the 2003 proceedings. The relevant references are now revised for the 2006 proceedings.
Thanks to someone I'll just refer to as "The Big Boinger" for a bit of encouragement, and better yet, publicity.
Note, regarding issues of unsustainable activism, this updating was extremely high on the curve of reward per unit risk. Nobody was going to sue me for a little rewriting. Objectively, I did have far more to gain than I had to lose (and even so, it was difficult in a sense). It doesn't compare to censorware decryption research.
Let me pre-emptively note, for well-meaning critics, that it would be an unreasonable inference to think that just because this outcome was an overall good result, a large amount of risk would yield a better result. That fallacy has been what's gotten me into deep trouble all along.
Posted by Seth Finkelstein at 11:59 PM[Almost a scoop! But not a news echo! You heard it here first!]
Here "we" go again ...
U.S. Copyright Office - Anticircumvention Rulemaking:
The purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls. This page contains links to published documents in this proceeding.
The Notice of Inquiry in this third anticircumvention rulemaking requests written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public, in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works.
My DMCA testimony, and almost single-handedly actually winning one of the few exemptions in the last round (which note, still must be re-argued this round!) was one the high points of my net activism. But sadly, personally it was a pyrrhic victory.
Having wasted entirely too much time being sucked-into,
err, now thought about the Internet Archive / DMCA circumvention issue
at great length, I think I've come up with a closely-reasoned argument
for the Internet Archives' control system not to be subject to the DMCA:
Proposition: OPT-OUT controls are not DMCA access controls
The DMCA reads:
(B) a technological measure ''effectively controls access to a work'' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
The Internet Archive's robot.txt control look superficially like a DMCA access control. But I'd say at a detailed level, it doesn't qualify. Crucially, the default in the Internet Archive is to gain access, and it does the inverse - in the ordinary course of its operation, it requires the application of information, or a process or a treatment, with the authority of the copyright owner, [i.e., retrieving a robots.txt file] to DENY access to the work.
Of course, in a very abstract sense, one could say these are equivalent in terms of logical negation. But I'd argue that if, by explicit design decision (which is the case here), failure of the process leads to permission rather than denial, then it can't qualify as a DMCA 1201 access control method. Even if it's an access control method in a broader sense, not every access control method should be taken to fit the DMCA's definition.
This seems to capture an intuitive argument.
Disclaimer: I'm not a lawyer, this is not legal advice, I make no assurances a "hacker"-hating judge would care.
Further on the Internet Archive DMCA circumention topic, Jonathan Weinberg writes
... if there's a technological protection measure here, it looks like copy protection rather than access protection, which puts defendants in the clear. ...
Did the law firm's banging on the Internet Archive with requests for the page circumvent a "technological measure" that in the ordinary course of its operation "require[d] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access"'
I don't think so. This language describes technology that mediates access - that allows access to some people and not to others, depending on whether the person seeking access had properly applied "information, or a process or a treatment," so that the copyright owner authorized him to get access. Think pay-per-view. Think DivX. The Internet Archive server that the law firm banged on, by contrast, was running code designed to prevent anybody from downloading a copy of the pages in question. ...
As we DMCA-fans know, there's a whole subgenre devoted to issues of access vs copying, and the merger thereof, since there is a stand-alone access control circumvention prohibition, but not a stand-alone copy control circumvention prohibition. However, I don't see where "access" requires "some people and not to others". I mean, I see the argument being made - that an "access" of zero is not access control, but copy control. But take a look at the House legislative report, where it clarifies that copy control is after one has a copy (so initially obtaining a copy is access control, my emphasis below):
Subsection (b) applies when a person has obtained authorized access to a copy or a phonorecord of a work, but the copyright owner has put in place technological measures that effectively protect his or her right under Title 17 to control or limit further use of the copyrighted work.
Let's put it this way - while the programmer part of me thinks that making repeated requests so that an eventual connection time-out leads to getting desired data, is a really neat, err, "work-around" - the reader-of-many-DMCA-cases part of me thinks that's exactly the sort of action that judges tend to view with a jaundiced eye (at least when done by programmers!).
Now, I don't think that the above necessarily means there is a DMCA violation here. But again, the argument is harder than it looks at first glance.
The Internet Archive is a wonderful organization which keeps historical records of websites ('The Wayback Machine"). In Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, they are involved in a lawsuit alleging a violation of the DMCA. See William Patry for details and discussion.
The basic DMCA aspect of the case seems to be the Internet Archive uses (current website) "robots.txt" exclusion files to block access to archived material (they talk about "removing documents", but it's really "block access", not deletion). The defendants in the case were able to get to historical versions of the website in question anyway. The court complaint is unclear about exactly what happened. After thinking about it, the following is my speculation as to the technical aspect of the sequence of events (some material below taken for the lawsuit).
1) Fact - In order to decide whether to display the history version
of a website, the Internet Archive queries the current
website for the contents of the "robots.txt" file (to see if that
file prohibits the display or not).
2) Fact - The check is supposed to be done once per day.
3) Fact - There was a bug in this check, which led to the lawsuit.
4) SPECULATION - The bug in the check was that if an attempt to
retrieve the "robots.txt" file failed, that failure would be treated
as if no "robots.txt" file existed, and that means no block on display
(i.e. everything could be displayed for that attempt).
5) SPECULATION - At the time, this bug could be triggered by
repeatedly attempting to retrieve pages from the historical site
(which would, at the time, trigger repeated retrieval attempts of
"robots.txt", some of which might have failed).
Hmmm ... I hate to say it, but if the above is a correct reconstruction, it does begin to at least arguably look like an access control circumvention under the DMCA. The Internet Archive relies on external files to "control access" to archived website content. The defendants here found that sometimes it appears to the Internet Archive as if the external file wasn't present, via an implementation flaw.
I think it comes down to whether buggy "technological measures" still count under the law, and if taking advantage of a malfunction counts as circumvention by the user. It seems to be a much tougher case than it first appeared.
I listened to the oral argument for the Blizzard v BnetD case. The following are my impressions about the hearing (see also Groklaw, via Copyfight). Note for background and my perspective, I devoted the time to listen to it all, because it's necessary knowledge for my estimating the risks that I might someday be sued (I've abandoned censorware decryption research), and how such a case might evolve.
A quick summary of the issues being appealed: The programmers (of the BnetD software in the case title) violated DMCA 1201(a)(1) and DMCA 1201(a)(2) anti-circumvention provisions, the DMCA 1201(f) reverse-engineering exemption doesn't apply, shrinkwrap license prohibitions can override reverse-engineering rights.
Some people think that in complicated technical cases, the judges are idiots. But in much of the material I've read, the judges seem to have a good sense the technical background. The problem isn't that they're stupid (which feeds into the idea that if we could just explain it all to them, they'd agree with civil-libertarians). Rather, it's often that they're not favorable. As was said in another case:
"As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."
And that was the subtext I perceived in the oral argument here. The judges didn't say 'hacker', though, but they seemed to be trying to make up their minds as to whether anybody respectable was going to be harmed. The legal conflict expressing that social determination boiled down to whether "public policy" supports allowing reverse-engineering against an obvious mass-license "contract" forbidding it, and whether the DMCA's reverse-engineering exemption should be interpreted broadly or narrowly.
In two sentences, the argument was:
Company lawyer: If you allow this reverse-engineering, "piracy!" will be rampant.
Progammer's lawyer: Reverse-engineering is necessary for innovation, these programmers didn't pirate anything.
And as I heard it, the judges clearly understood that was the argument.
The programmer's legal team had a tough task getting out from under the many precedents that appeared to go against their position - the DeCSS cases, Bowers v. Baystate (shrinkwrap against reverse-engineering). They did a valiant jobs, in my view (while the opposition spent a notable amount of time praising those precedents as exactly applicable to this case). But I think at the end it's just going to come down to whether the judges believe public policy should support such reverse-engineering rights or not. And the track-record for that sort of determination is not good.
"Macrovision Files Lawsuit Against Sima and Interburn's DVD Copying Products"
SANTA CLARA, Calif.--(BUSINESS WIRE)--June 15, 2005--Macrovision Corporation (Nasdaq: MVSN) announced today that it has filed suit against Sima Products Corporation ("Sima") and Interburn Enterprises Inc. ("Interburn"). The lawsuit charges that Sima's "Video Enhancers," which are principally used to allow consumers to make unauthorized copies of copyrighted DVDs, infringe Macrovision's patented copy protection technology and also violate the Digital Millennium Copyright Act ("DMCA"). These products include, but are not limited to, products currently marketed under the names CT-1, CT-100, CT-2, CT-200, and SCC-2. The lawsuit further charges that Interburn products infringe Macrovision's intellectual property and the DMCA.
(via Importance Of and CoCo).
Many months ago, I wrote about about exactly this issue of GoDVD!, DMCA, Macrovision:
... Here's the interesting issue - the DMCA basically mandates Macrovision in recorders. Macrovision, technically, is basically a "bug" in the video signal. So ... does selling signal-enhancing equipment like the GoDVD! (which specifically corrects that bug) violate the mandate? According to the letter of the law, I'd say no. On the other hand, this looks very much like what a hostile judge would view as a loophole. Or at least fodder for a quick amendment. The DMCA was definitely trying to outlaw the anti-Macrovision functionality which is part of the GoDVD! box.
I suppose the upshot is that even if it's true now that the GoDVD! box does not violate the Macrovision section of the DMCA, I'm not optimistic as to how long it will remain true.
We are about to find out ... I have my opinions, but the only ones which count are the court's opinions. I'll also note that even if the targeted companies have a reasonable legal defense, funding that legal defense may bankrupt them.
[In the US, the DMCA, hacks you]
Theshiftedlibrarian - Could the DMCA Exemption for Libraries Lead the Way through the DRM Maze? (thanks, Bruce Umbaugh) quotes a mistaken belief: "The DMCA already has a built-in exemption for libraries and other such nonprofit entities, which means it looks like you're free to convert those problematic encrypted WMA files into MP3 so that the majority of your patrons will be able to access and play said files in a noninfringing manner."
And asks: "... grants are due in June, and this year there's finally a "dream big" one that my organization could apply for. I've already pitched a half dozen ideas, two of which we're probably going to submit and one of which a member library is going to submit. But what if we submitted a grant to actually do what Ben proposes? What would the implications be? Is it realistic?"
Kill this now. I am not a lawyer, but I do know the DMCA cases very, very, well. Don't even think about it. The DMCA provision for libraries is extremely limited, having to do with evaluation of works. The above idea is another version of the problem of "substantial-non-infringing use" versus the DMCA. So far, sadly, the DMCA wins.
Here we go again. YADL! (Yet Another DMCA Lawsuit).
Plaintiff: "Tecmo" (a video-game company).
Defendant(s): Programmers and website creators (Mike Greiling, Will Glynn)
Target: Game modifications, (including
"to make Tecmo Characters appear naked.")
These all follow a pattern.
The corporation issues a press release about the Threat To Civilization As We Know It, i.e. "Ignoring the situation will ultimately hurt future gaming experiences for both casual and hardcore gamers,".
The programmers and hobbyists get accused of mopery, popery, snookery and mookery, I mean, "copyright infringement, circumventing copyright protection systems in violation of the Digital Millennium Copyright Act (DMCA), and passing off and unfair competition".
The free-speech side fights the good fight, points out it's an outrage, it's an atrocity, that it violates our social concepts of what is fair to use: "This complaint is absurd. ... . It's not competing in any way with Tecmo's product. In fact, you have to own Tecmo's product to use this stuff." (I'm skipping over the whole DMCA / fair use legal hack).
Sigh. Is there really any point in my writing much on this, except to me-too? It'll all be said, repeatedly, by many people, some far more qualified and more loveable than I am.
Two semi-original notes:
The coverage-swarm seems to have been triggered by the company
press release. It's at the root of the echo chamber,
even though the lawsuit seems to have been filed on January 21.
I don't know how many of these DMCA lawsuits there have to be, for certain people to admit my censored censorware research involved very serious legal risks (in some cases, it probably never will happen ...).
PDF files with usage restrictions often pose a problem regarding how to exercise one's fair-use right to quote excerpts. Back last March, I wrote about how to do "permission arbitrage", in a post "Making Fair Use of the Report on "Big Media" Meets The "Bloggers"" (there's a certain amount of irony there ...).
It seems as relevant now as it was then, so I'll repost it today.
[Repost]
Dowbrigade has sad comments on difficulty in making fair use of the Shorenstein Center report "Big Media" Meets the "Bloggers": (link credit Dave Winer)
The weird thing is the extent to which the authors have gone to make sure this milestone article in the academic history of the Blogosphere is unbloggable. Excerpts or selections of the text cannot be saved, or copied and pasted. The document cannot be converted to another format or saved as anything else. ... The selection below were typed out by the Dowbrigade, letter by letter.
It takes a very twisted view for a court to believe things like this do not impinge fair use rights ...
The encryption used here is well-known, and trivially within my technical ability to decrypt. But given what happened to the last guy who programmed about PDF files and decryption (the name Dmitry Sklyarov might ring a bell), I'll let someone else take the risk of an unquestioned DMCA 1201(a)(2) violation.
Instead, I'll note a very simple way to get usable text from the restricted file. Observe that printing is allowed. Now, one does not have to get fancy with OCR or images. Simply do a version of the "analog hole". The document can be printed. The printing process has the ability to print to a file. Use that option. That is, print the document to a file instead of directly to a printer. This produces a file in a different format.
There's a "Do not remove this tag under penalty of (DMCA) law" bit of code in that file, which handles the security for usage restrictions. HOWEVER, the text of the document itself is in the clear here! All that's needed is to make it more usable. So extract the whole text chunk from any line in the file where the line starts with a left parenthesis or ends with a right parenthesis (no text chunk has a segment with more than two lines)
That is, cough, I meant to say,
perl -n -e 'print $1 if (/^\(([^)]+)/ || /([^)]+)\)$/);' < shorenstein.ps
[I think I'm allowed to write the English statement, but in peril with the Perl statement, at least under current court precedents]
All done. You now have a file of text which, though not all that pretty in formatting, is quite amenable to cut-and-paste.
Does even this post violate the DMCA? Is it trafficking in "technology" that "is marketed by that person ... for use in circumventing a technological measure that effectively controls access to a work protected under this title."?
You guys at Harvard will defend me, right? Right? Right? ...
Disclaimer: No encryptions were broken in the making of this post.
[UPDATE (from March 2004): I found a simpler, better, procedure (all the following are standard Linux programs)
Use the program xpdf to generate the postscript print file. This program obeys the usage restrictions itself, but does NOT insert the usage restriction code in the generated print output.
Then use pstopdf13 to generate a PDF file from the print file (the default 1.2 version didn't work well, 1.3 works better).
This new PDF file is not usage restricted!
Then run pdftotext over this new file ... and presto, a pretty text version!
I'm really worried now ...
]
[Note: Blog items may be sporadic due to problems with my net connection, and time available]
Walt Crawford's "Cites & Insights" high-quality library 'zine has already put out the November 2004 issue.
Besides the discussions of open-access, WikiPedia, etc, one item struck me as deeply interesting (note for this one, the quoting of me arises because I found it so interesting, not the other way around, really):
INTERESTING & PECULIAR PRODUCTS in Cites & Insights 4:12 ended with an item on the Sima GoDVD!, a box that "enhances" analog video so you can convert it to digital form to burn to DVD -- and in the process apparently undoes Macrovision copy protection. I noted that Macrovision's president had suggested that GoDVD! violates DMCA and commented "but that's the wrong law: GoDVD! operates entirely in the analog domain, and VHS is an analog medium, so DMCA simply doesn't apply." Seth Finkelstein, who reads more of the law than I ever will, corrected that sentence. Section 1201k of DMCA relates to "Certain Analog Devices and Certain Technological Measures," and is in effect a provision that protects Macrovision copy protection, called "automatic gain control copy control technology" in the law. It outlaws manufacture, import, offering to the public, providing or otherwise trafficking in VHS VCRs, 8mm analog camcorders, Beta VCRs, 8mm analog VCRs if they ever become popular (sell 20,000 copies in a calendar year in the U.S.), or any other analog VCR using NTSC format. My sentence was wrong--but it can still be argued that GoDVD! doesn't violate DMCA. After all, it isn't a VCR or a camcorder; it's just a video enhancement box.
My emphasis on the last sentence. Here's the interesting issue - the DMCA basically mandates Macrovision in recorders. Macrovision, technically, is basically a "bug" in the video signal. So ... does selling signal-enhancing equipment like the GoDVD! (which specifically corrects that bug) violate the mandate? According to the letter of the law, I'd say no. On the other hand, this looks very much like what a hostile judge would view as a loophole. Or at least fodder for a quick amendment. The DMCA was definitely trying to outlaw the anti-Macrovision functionality which is part of the GoDVD! box.
I suppose the upshot is that even if it's true now that the GoDVD! box does not violate the Macrovision section of the DMCA, I'm not optimistic as to how long it will remain true.
At Copyfight, Donna Wentworth notes concerning the Blizzard v. BNETD case and reverse-engineering:
A reader over @ Freedom-to-Tinker observes that "This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I'd love to see that: 'Mr. Software developer, I'd like your permission to become your competitor.'" Me too. And pigs growing wings.
Just to clarify people's understanding, that's mixing up two parts of the decision. It's confusing, because the discussion is interleaved, switching back and forth between circumvention itself and the reverse-engineering defense. The relevant passage (my notes in brackets):
The Court finds that the defendants' actions constitute a circumvention of [a work protected by] copyright under the DMCA. It is undisputed that defendants circumvented Blizzard's technological measure, the "secret handshake" between Blizzard games and Battle.net, that effectively controlled access to Battle.net mode. It is true the defendants lawfully obtained the right to use a copy of the computer programs when they agreed to the EULAs and TOU. The statute, however, only exempts those who obtained permission to circumvent [i.e. allowed to decrypt] the technological measure, not everyone who obtained permission to use the games and Battle.net. See Universal City Studios, Inc. v. Corley, [...] (court rejects argument that because DVD buyer has authority to view DVD, buyer has authority of copyright owner to view DVD in a competing platform; court finds that argument misreads - 1201(a)(3) because the provision exempts from liability those who would "decrypt" -- not "use" -- an encrypted DVD with the authority of copyright owner). The defendants did not have the right to access Battle.net mode using the bnetd emulator. Therefore, defendants' access was without the authority of the copyright owner.
A rough translation of the above is "Just like unauthorized Linux DVD players violate the DMCA despite a buyer having a right to view a DVD, unauthorized game emulators violate the DMCA despite a buyer having a right to use a game" (n.b., I am paraphrasing, not agreeing).
This is all concerned with saying that the BNETD emulator is indeed a DMCA circumvention violation, before even discussing reverse-engineering. The "permission" refers to the fact that to be a circumvention violation, the decryption must be "without the authority of the copyright owner". One argument in defense of the legality of independent Linux DVD players, or here, open-source emulators, is that by purchasing the DVD or the game, that purchase is a grant of authority of the copyright owner to decrypt the DVD or game in order to use it (otherwise, what are you buying?). But the courts have so far said that this argument is wrong. You buy the ability to use the DVD or game, but not to decrypt it. The new decryption-right remains with copyright-owner, who can license that right separately. So if you buy a DVD, and want to view it on a Linux machine, but there are no authorized Linux players, tough luck. In essence, for encrypted copyright material, you've subject both to copyright AND the new decryption right ('paracopyright"), which are different sets of laws.
The reverse-engineering is a horror, but it's a different horror.
Disclaimer: I am a programmer, not a lawyer. I just study the DMCA with great personal interest (as in, I don't want to get sued, personally).
I again read through the Blizzard v. BNETD case, partially because of Ernest Miller's comment:
It is isn't clear to me that the "secret handshake" is circumvented. Blizzard games send an encrypted packet with a key. The BNETD servers ignore the key (not that they would be able to do anything with it). If that constitutes an access control device, there is not much that wouldn't.
The key (err, pun unintended) to this part is to realize that Blizzard basically put a password validation routine for a game feature in a location external to the game, their server. So abstractly, there's the official Blizzard Battle.net routine which is something like:
int validate_key (struct handshake *key) { super-sekrit-magic-yada-yada-.... }
And the emulator stub:
int validate_key (struct handshake *key) { return 1; /* true */ }
According to the court, congratulations, you've just violated the DMCA. This is exactly the sort of interpretation that, had I proposed it, some optimistic lawyers would have told me that no, no, don't confuse it with the Broadcast Flag, see section 1201(c)(3):
o (3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
And the trick there seems to be in the phrase "does not otherwise fall within". Apparently, implicit in the Court's reasoning, if you know something is an encrypted password, you have some sort of affirmative duty of care to validate it. And if you just ignore it, that's circumventing it.
I can't say I'm happy about that. But I can't say I'm surprised at it either.
And I really, really, wish people would take into account this sort of court attitude when I talk about my reaction to my own risk of being sued :-(.
Blizzard v. BNETD (formally "Davidson & Associates v. Internet Gateway") is a case about the right to reverse-engineer and build a open-source network game emulator. A district court decision has just been issued (via Ed Felten). In sum, it's a horror on every item, and rules solidly against programmer's interests.
Some of the parade of horrors:
The quasi-Libertarian like-it-or-lump-it view of a contract of adhesion:
The parties in this case did have unequal bargaining power because Blizzard is the sole seller of its software licenses; however, the defendants had the choice to select a different video game, to agree to the terms and gain the software and access to Battle.net, or to disagree and return the software for a full return of their money.
The "If you have to ask, you can't afford it" principle (that is, if you're skilled enough to reverse-engineer a program, you're presumed to understand you're forbidden to do it!)
Also, the defendants are not unwitting members of the general public as they claim. They are computer programmers and administrators familiar with the language used in the contract, and have the expertise to reverse engineer and understand source code.
You can click away your fair use rights (my emphasis):
The Federal Circuit in Bowers stated that the First Circuit recognized the contractual waiver of affirmative defenses and statutory rights, therefore, the defendants could contractually waive their fair use right to reverse engineer. Id. The Court finds the reasoning in Bowers persuasive. The defendants in this case waived their "fair use" right to reverse engineer by agreeing to the licensing agreement. Parties may waive their statutory rights under law in a contract.
Open Source [Update2: or Free Software] counts against you in terms of a DMCA defense:
The bnetd emulator had limited commercial purpose because it was free and available to anyone who wanted to copy and use the program.
Interoperability exemption is narrow:
Finally, the development and distribution to others constituted copyright infringement and persons who commit copyright infringement cannot benefit from the exemptions of &sec; 1201(f). See 17 U.S.C. &sec; 1201(f)(2)-(3). "Sections 1201(f)(2) and (3) of the DMCA are not broad exceptions that can be employed to excuse any behavior that makes some device 'interoperable' with some other device." Lexmark Int'l Inc. v. Static Control Components, Inc., 253 F.Supp.2d 943, 970 (E.D. Ky. 2003).
On and on ... Read it and weep.
It's a huge burden to read through dozens of pages of a court case, and then try to figure out something original and insightful to say while a bunch of other people are trying to do the same thing. I'm inclined to stop doing it. But this one was "worth it" tonight :-(.
[Update: See also Ernest Miller's take, Major DMCA/EULA Loss - District Court Clueless in BNETD Case]
[Update2: See also the BNETD v. Blizzard netradio show, where I'm one of the guests]
Last week, the Internet Archive got some press for DMCA exemptions. That's last week, not last year. Being that the DMCA exemptions were announced last October, this puzzled me. As a DMCA exemption winner myself, with much grief, the topic is very dear to my heart.
It turned into a minor case study of echoing.
We start with the base article, from The Inquirer:
Internet Archive has copyright problems
DMCA exempt for nowBy Nick Farrell: Wednesday 11 August 2004, 07:17
[TheInquirer]
The US Internet Archive, which makes archival copies of software and data, said it was technically impossible to do its job because of the Act which forbids copying software. ...This week the group announced on its site here that the Copyright Office has ordered a temporary exemption for the group's work.
This article is not quite correct, as once more, the exemption were announced in October 2003. And the Archive announcements page shows the particular page was posted on January 08, 2004.
But now the fun begins.
Echo - broadbandreports
Echo - FARK
Echo - LawMeme
Echo - LISNews
Echo - CD Freaks
Echo - Techdirt (but points for at least wondering about the age of the story)
All of this generated from one item that arose from a reporter writing about something which was in fact many months old.
And the moral of the story is: Nobody should ever tell me that the paucity of favorable coverage I've received was due to my censorware work not being worthy. That's a rationalization. Because it's too easy to kick me when I'm down, than to admit I was let-down.
The copyfight Daily Memo today is about the DMCA legal posturing between Real Networks and Apple over interoperability. Yadda, yadda, naughty-naughty, potkettleblack.
Me too.
I'm amusingly reminded of the SF story "Narapoia", where a character has a feeling that he's following someone, combined with a "strange feeling that people are plotting to do me good". Apple is upset that a rival *encrypts* files to Apple's proprietary format. That is, usually companies complain when people *decrypt* their proprietary format, making files formerly encrypted now free. But here, Apple doesn't want files being put into their proprietary format.
I don't see this as a DMCA violation. Apple wants an "ACMD" (reverse-DMCA). Nobody shall encrypt a file, without the authority of the DRM systems owner ...
Ernest Miller discusses the DMCA and encoding songs in Apple FairPlay digital restrictions management:
However, if I use Real's Helix DRM to encode my music, then shift the DRM to FairPlay with Real's new software, I now have a FairPlay-encoded file without having signed a contract with Apple giving them authority to change FairPlay. If Apple now changes FairPlay restrictions, they would be doing so without the authority of the copyright holder, that is, me. So, I should, theoretically, be able to sue Apple for changing FairPlay restrictions under the DMCA.
My take: This is a convoluted version of an old "argument" sometimes put forth that purported to show that the DeCSS case was invalid. The story ran like this:
"The DMCA talks about decoders. But it doesn't say anything about encoders. Suppose I take a DVD movie for which I am the author and which I own the copyright. I then encode my own DVD movie with the *CSS* algorithm (that is, I use only an *encoder*, not a *decoder*). I now have a CSS-protected DVD. Thus every DVD player counts as a circumvention device, because they can play my DVD without my authority as the copyright owner! *GOTCHA!*"
What's wrong with this? Though of course it's appealing to the programmer mindset, I think the formal flaw is in the definition of "circumvent". The courts will look to the design of the system, grounding that in the "authority of the copyright owner".
The argument then basically reduces down to "Assume I get a unlicensed FairPlay encoded file of my own. If Apple changes FairPlay, that's now a circumvention device against my rights".
Per above, I argue that if Apple changed the FairPlay system with the consent of all copyright owners which it has formally licensed the system, that change wouldn't be circumvention. Such a change won't be made into circumvention by having some unlicensed uses of the system.
And realistically, the courts are going to draw exactly this distinction, as with the Chamberlain vs Skylink (garage door opener) case.
It circles back to what I mentioned recently, that copyright
isn't logical in the abstract, We've only had it pounded into us
not to
think about that, because to do so means you're a Commie
insufficiently respectful of "property" rights.
If any logical hack can be resolved by simply saying "the defendant is a bad guy, so he loses", then the courts won't have a problem with it.
Speaking of assembling political coalitions, a "Personal Technology Freedom Coalition" has been formed to lobby for the DMCRA (a DMCA reform bill).
The Personal Technology Freedom Coalition kicked off Tuesday with a Capitol Hill press conference and support from more than two dozen organizations and companies. Supporters ranged from the United States Student Association and Consumers Union to tech giants Intel Corp., Sun Microsystems Inc. and Gateway Inc. Four major telecommunications carriers and ISPs, including Verizon Communications Inc. and BellSouth Corp., also joined the coalition.
A cynical view: Money? Money? Where are the lobbyists, I don't even see a website.
I've been thinking of this part of the DRM speech
But now we live in a world where any cipher used to fence off a copyrighted work is off-limits to that kind of feedback. That's something that a Princeton engineering prof named Ed Felten discovered when he submitted a paper to an academic conference on the failings in the Secure Digital Music Initiative, a watermarking scheme proposed by the recording industry. The RIAA responded by threatening to sue his ass if he tried it. We fought them because Ed is the kind of client that impact litigators love: unimpeachable and clean-cut and the RIAA folded. Lucky Ed. Maybe the next guy isn't so lucky.
Matter of fact, the next guy wasn't. Dmitry Skylarov is a Russian programmer who gave a talk at a hacker con in Vegas on the failings in Adobe's e-book locks. The FBI threw him in the slam for 30 days. ...
321 Studios, which makes backup-software, is being sued under the DMCA by Atari and other Entertainment Software Association members, over 321's Games X Copy backup product (via Copyfight).
Press Release: Leading video game companies sue 321 studios
By coincidence, I was just going through the decision of 321 v MGM, a similar DMCA case, which 321 lost. Notable excerpts (my emphasis):
This Court finds, as did both the Corley and Elcom courts, that legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions of S 1201 (b)(1).
And
Fair use and misuse are defenses only to copyright infringement claims, which are not at issue in this motion. Additionally, as this Court has already related in some detail in the summary judgment portion of this opinion, the First Amendment is not an affirmative defense to a claim under the DMCA. Therefore, as 321's proposed amended defenses are futile, this Court DENIES the motion to amend counterclaims.
Frankly, I don't think 321 Studios has a chance here.
Matt Rolls a Hoover has a follow-up assessment of the DMCRA hearings (remember, the confusingly-named "DMCRA", the "Digital Media Consumers' Rights Act", is the anti-DMCA). Matt collects a set of reactions, In particular, my DMCRA hearing impressions, where he summarizes:
Seth Finkelstein has his notes about the hearing at Infothought. He refers to the discussion of the DMCA rulemaking process, saying "I definitely thought I had something to say!" I thought his point of view was well represented by various panelists, including Miriam Nisbet of the American Library Association and Gigi Sohn of Public Knowledge.
Will all due respect to the fine efforts noted above, I'd like to assert it's not the same. My point of view, of how hard it was, of spending hundreds of dollars of my own money while unemployed since I couldn't get any funding support, of having to basically potentially admit liability under standard copyright, trade secret, and reverse-engineering in violation of shrink-wrap license, of making oneself a personal target - these aspects did not seem to be well-represented. And my victory turned out to ultimately be somewhat pyrrhic in its cost.
Moreover, tool-making and distribution is important in this context, so other people can reproduce and do validation, which is the essence of research. The censorware companies will just lie, and for me, there sure won't be any Slashdot story defense of "a lie about the results" (heck, I'd be lucky if there wasn't Slashdot support for attacks on me!). Perhaps that's put a bit raw, but the idea that those interests facing embarrassing exposes will lie and use legal grounds to suppress embarrassing material, should be thoroughly understood (Diebold!)
Maybe all of that is irrelevant to the focus of the hearings. But I think the fair use and technology discussions missed some important nuances.
I've been listening to the DMCRA hearing, having it playing in the background like radio, via webcast, as I do other things (some people listen to Howard Stern, some to NPR ... I'm listening to "The Digital Media Consumers' Rights Act" hearing - isn't the Internet great?). Note thus the following is meant to be impressionistic, rather than journalistic. I was not taking notes, nor listening with rapt attention.
It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:
"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."
That is, one deep issue is the conflict between the controls sought by the industry, and the effects those controls have in terms of inhibiting fair use in practice. This is a complicated problem. And it's a waste of time to go around "Are you some sort of Commie?" (paraphrased, not literal) all the time.
Lessig vs. Valenti is like a cage-match :-). Lessig makes a great case to my ears, and I'll join the cheering section here (2-4-6-8, who's net copy-great, Lessig!). I'm not sure how well it goes over with those not already in the choir, though. Quite a few of the hearing audience seemed to me to be willing to grant the industry the benefit of any doubt. Strategically, fighting "pirates" with "fair use" seems unbalanced (hence the search for the "loveable hero")
Robert Moore, of 321 Studios, was surprising strong and good in his testimony. He did an excellent job of fielding many hostile questions well.
The MPAA and RIAA people don't like techs - they complain much about Hacking! Hacking! Hacking!
I'm biased, but I think technologists have something to say here. For example, Jack Valenti (mis)quoted Ed Felten. Even if this hearing was only about consumer issues, a prominent subject was whether it was possible to make usage restriction technology which somehow only permitted fair use. And what wins if that couldn't be done.
I'm really biased, but when they discussed whether or not fair use was being served by the Library of Congress Rulemaking about DMCA Exemptions, I definitely thought I had something to say!
Listening to these hearing is probably bad for me. It's always a tug to do more net-activism. Except that'll likely kill me, at least metaphorically, and probably literally, from stress.
[Update: Recommendation: See Matt Rolls a Hoover for hearing notes, excellent unpaid, I mean "citizen", journalism (thanks Derek)]
[Breaking news! Citizen journalism! Original reporting! You heard it here first (all dozen readers or so ... see previous DMCRA hearing entry about coverage)]
[Remember, DMCRA, the "Digital Media Consumers' Rights Act", is the anti-DMCA]
The witness list, that is, the people who will be testifying in the hearing, is now available, at http://energycommerce.house.gov/108/Hearings/05122004hearing1265/hearing.htm
It's an impressive line-up (more than a dozen panelists):
Lawrence Lessig, Jack Valenti (MPAA), Cary Sherman (RIAA), and more.
Witness statements aren't available there yet, but the Lessig DMCRA testimony is posted on his site.
[And if anyone is wondering, I didn't even try to be a witness here. It's above my status level, and there would be no support for me to do it anyway. Though deep down, as a person "primary responsible" for a DMCA exemption, I do think that I would have something to say.]
1) If you're following the DM*C*RA ( "DMCRA", the anti-DMCA) upcoming May 12 hearings, I haven't seen mention of the following important page:
Hearing
- H.R. 107, The Digital Media Consumers' Rights Act of 2003
http://energycommerce.house.gov/108/Hearings/05122004hearing1265/hearing.htm
I actually called them up to try to find out more information, for some complicated reasons, and had a very small adventure in "unpaid", I mean "citizen", journalism. (Them: "Who are you with?" Me: "The Infothought blog" - that actually worked, or at least, if they were sneering, they kept it out of their voice). But no info. (it might have worth developing something if I were a "paid", I mean "not citizen", journalist. But I'm not).
2) David Tannenbaum Coordinator of the Union for the Public Domain wrote me:
I am a fan of your work, and am writing in my capacity as coordinator of Union for the Public Domain. We are a non-profit organization dedicated to protecting the public domain from threats like the WIPO Broadcasting Treaty which is about to be negotiated. If you think it is worth drawing attention to it, I was hoping that you might give the treaty a mention on your blog. ...
One of the big hurdles we face in trying to change treaties like this one is that we don't actually know where governments stand on the various provisions, until very late in the game. That's been even more true for this treaty because it so much out of the public eye.
We're trying to overcome that this time by distributing a survey that we hope volunteers will administer to their country representatives. We will then post the results on our web site.
Is there any chance you would be able to give this a mention on your blog and maybe even a link to the survey? http://www.public-domain.org/?q=node/view/30
Mentioned, linked. And for more links, he supplies:
P.S. For more information on the details of the treaty see Ernest Miller's excellent article at
http://www.corante.com/importance/archives/002925.html,
and Edward Felten's sharp analysis at
http://www.freedom-to-tinker.com/archives/000571.html.