The Case Against the DMCA

Some background on the DMCA and how its affecting programmers, innovators and the public.

The year was 1998 when a piece of legislation was brought before Congress that tore away basic rights that we as Americans have enjoyed for hundreds of years. This now infamous piece of legislation violates our basic rights of free speech and fair use. Not only does this evil piece of legislation violate our rights; it also stifles technological growth. This legislation is officially known as the Digital Millennium Copyright Act, otherwise called the DMCA. The DMCA is a problem that must be dealt with, but how? The solution is to repeal or rewrite the DMCA.

The First Amendment to the United States Constitution grants all American citizens the right of free speech, a right in we commonly overlook and take for granted. When something challenges this basic right, we must confront the problem and eliminate it. Corporations backed by the DMCA have brought forth a plethora of lawsuits against everything from academics to magazines. Worried about one thing, the all mighty dollar, these corporations state that we don't have the right to publish technical documentation and computer source code that provides a way to bypass electronic copyright protection mechanisms, even if we are not violating the copyright itself.

DVDs currently provide the highest quality audio and video content available to the general public. The clarity of the audio and video is something that was unimaginable ten years ago. All DVD that are distributed are encoded using something called CSS. CSS is an encryption algorithm that is used to decode and encode DVD content, it also implements an authentification system that prevents PC-DVD players from reading the disc without a successful handshake. Generally this is a good thing; people should not be able to sell things that are not theirs. But CSS also causes problems. If you want to watch a DVD, you have to decode your DVD from CSS to the standard audio and video signals that your television and stereo understand. So all DVD players, hardware- and software-based, have licensed the CSS algorithm from the Motion Picture Association of America's (MPAA) licensing entity, the DVD Copy Control Association (DVD-CCA). After the DVD-CCA refused to license CSS to the open-source project LiVid, a Norwegian hacker named Jon Johansen wrote a version of the CSS algorithm from scratch and published it freely on the Internet. And thus was born DECSS. After the release of DECSS, the MPAA went on a lawsuit spree, suing anyone who was providing this code to the public. Most places publishing DECSS were private web sites that, after receiving a threatening subpoena, immediately complied and took down the source code to the DECSS. Fortunately one of the organizations that was sued did not abide and fought against the MPAA in this unjust lawsuit.

2600, a magazine for the hacker community, had a link to the DECSS source code published on their web site and was sued by the MPAA. 2600 decided to fight the MPAA on the grounds that source code was free speech and that 2600 had every right to publish the DECSS source code. The first court trial was unsuccessful; 2600 lost its case and was ordered to remove all copies and links to copies of the DECSS from its web site. These court orders were also upheld in a second trial at the US Circuit Court of Appeals in New York.

2600 is not standing down, though; they plan to continue fighting the MPAA to the Supreme Court. In an article that gave a brief synopsis of the year, 2600 made the following statement: "Even if it takes a hundred cases of people challenging the DMCA, we are confident that there is no shortage of individuals who will proudly step forward to defend the rights that they believe in. As our leaders are so fond of saying, we are in a war and we must all do our part and make sacrifices." On January 14, 2002, 2600 requested that the previous ruling be overturned. 2600 along with Electronic Frontier Foundation (EFF) is pushing this until it reaches all points of the United States justice system. The EFF and 2600 are sparking a revolution of fighting back against the corporate backed DMCA, fighting those impossible battles, and we all must contribute to protect our freedoms.

Imagine that you've been invited to Las Vegas to give a talk about your research in computer security. You give your talk, but afterwards you are arrested and held in jail for 22 days. You are released finally on $50,000 bail, but only on the condition that you remain in Northern California and cannot return to your home country of Russia. After remaining in Northern California for nearly six months, you are finally permitted to return home to Russia but only on the grounds that you come back to give testimony. This nightmare was a reality for a Russian cryptography expert named Dimitry Sklyarov.

Dimitry Sklyarov is a 27-year-old Russian programmer who works for a software company named ElcomSoft. While working for ElcomSoft, Dimitry was the main developer of a software program called the Advanced eBook Processor (AEBPR). AEBPR removes the copyright protection from Adobe's eBook format and then converts the eBook to Adobe's Portable Document Format (PDF). The goal of this software was to allow the eBook to be used in more ways than Adobe's eBook format currently provided. Adobe initially brought ElcomSoft's AEPBR to the FBI on June 26, 2001. Adobe was worried about this software infringing upon the copyrights of the eBook's author. The Electronic Frontier Foundation met with Adobe and discussed the details of this software, and after the meeting Adobe dropped all charges against Dimitry and Elcomsoft. Even after Adobe dropped the charges, however, the United States government continues to prosecute them. Currently, Dimitry and Elcomsoft are faced with five criminal charges, four of which are backed by section 1201 of the DMCA. These charges against Dimitry and Elcomsoft show the world how wrong the United States government can be. The DMCA is turning research that benefits society into crimes.

A Princeton University professor by the name of Edward Felton and his team of researchers (from Princeton and Rice Universities) decided to take on a public challenge that was presented by the Secure Digital Music Initiative, or SDMI. The SDMIs challenge was simple enough: anyone who could remove the SDMI watermarks, used to prevent copying digital music to someone who has not purchased, would be given a sum of $10,000. After successfully bypassing SDMIs watermarks, Feltons's Team went on to write a research paper on how they accomplished this, as well as the details of the SDMI watermarking technology. Felten's team then decided to present this paper at the 4th International Information Hiding Workshop. Before they could present this paper, however, the SDMI and Recording Industry Association of America (RIAA) sent a letter to Felton that threatened legal action against him and his researchers if they presented the paper. According to the SDMI, by presenting this paper Felton would be violating a click-thru agreement on the SDMI web site that had to be agreed to before entering the contest. According to Felton his team never officially entered the contest, did not qualify for the prize money and also did not accept the terms of not publishing the method behind removing these digital watermarks. Felton's team simply used the publicly available information on the SDMI web site.

In November of 2001, Felten's case was dismissed by a New Jersey Federal Court. Felten's team has decided not to appeal this on assurances from the RIAA and the United States Government that scientists attempting to study access control technologies are not subject to the DMCA. The RIAA also stated that, "We felt Felten should publish his findings, because everyone benefits from research into the vulnerabilities of security mechanisms." Wow, a complete rebuttal from the RIAA; it's interesting to see corporations losing the battle now trying to look like one of the good guys. Edward Felten stated that, "Although we would have preferred an enforceable court ruling, our research team decided to take the government and industry at their word that they will never again threaten publishers of scientific research that exposes vulnerabilities in security systems for copyrighted works." So the government and recording industry have given us their "word"; let's all pray the live up to it.

The DMCA not only violates our right to free speech, but it also violates fair use rights that we have enjoyed and taken for granted. Fair use rights allow us to photocopy a page from a book at the library, make a compilation CD of our favorite music for the car, make a second copy of a CD that is more convenient than just having one, etc. Under the DMCA these fundamental fair use rights are threatened and could possibly be eliminated.

Regarding Linux, and the free distribution of it, is where the DMCA comes in. As previously stated, the DECSS is an unlicensed version of the MPAAs CSS encryption algorithm. The primary reason for developing DECSS was to give Linux users the ability to view the DVDs that they purchased, on a DVD player that they purchased, in a computer that they purchased. The MPAA did not provide a way for the Linux community to view DVDs under Linux, so as the Linux community usually does, they created their own way. This is a violation of the DMCA, since they did not license CSS from the DVD-CCA. What did you say? I can't watch a movie that I purchased, on a DVD drive that I purchased, in a computer that I purchased unless I run a proprietary, bug-filled operating system from a company with less morals than the MPAA? This is clearly a violation of the fair use rights that are well established within the United States.

The DMCA not only limits the rebels that are running that other operating system but also could prevent you from listening to a CD that you recently purchased on an older CD player. Recently a batch of CDs went on market that contained a copyright protection scheme that prevents some standard CD players from playing it back and also prevents these CDs from being played on a computer. Phillips, one of the original creators of the CD format and the owners of the "CD" trademark, has made statements favoring consumers stating that these dysfunctional discs should not rightfully be called "CDs".

This type of CD also prevents users from converting the audio CD to the audio codec MP3. MP3 is an extremely popular way of compressing digital audio so that it can be transmitted over the Internet at efficient speeds. It also allows the use of portable music devices that do not contain a single moving part. But under the DMCA, the RIAA may limit your ability to transfer digital content to their media formats, say from MP3s to minidisks. Also under the DMCA, you may not make a convenient copy of a DVD for the television on the second floor of your house unless you get written consent from the MPAA. In addition to that, you must also have the specific software with the ability to copy CSS-encoded DVDs. Since the MPAA controls CSS, they can also control whether a license may make it available to copy a DVD. So when the technology becomes available to store all your DVDs and CDs in one little box that sits on top of your TV, it may not go to the market because the MPAA or RIAA doesn't want it there.

Furthermore, security researchers have been pulling down their web pages and not publishing security flaws they have found in widely used systems for fear of prosecution under the DMCA. Dug Song pulled down his web site, all that remains are the words "Censored by the Digital Millennium Copyright Act" and a link to Anti-DMCA.org. Niels Furguson, a Dutch cryptanalysist, did not publish a discovery about a major flaw in the ieee1394 FireWire standard for fear of retribution. He is quoted as saying, "I travel to the US regularly. Both for professional and for personal reasons, I simply cannot afford to be sued or prosecuted in the US. I would go bankrupt paying for my lawyers." Fred Cohen, a security consultant and author of a digital forensics software package named Forensix, took his software off of his web site. Cohen says, "When they started to arrest people and threaten researches, I decided the legal risk was not worth it." As you can see leading experts in the field of computer security are scared to publish their work. Should they be? The US judicial system, MPAA and RIAA think so. Anti-DMCA.org put it best with the following analogy:

"We crash test cars to create stronger, safer vehicles. We need to crash test software to promote stronger, safer software. But with the DMCA, a company can do minimal research on security, and if someone does crack their software, they can sic the FBI on them."

What is the solution to this piece of legislation that has been wrongfully passed into law by our corporation corrupted legal system? The tech community says repeal or rewrite the DMCA. Many feel that the DMCA should be repealed completely, but they would be happy with a first step; the first step being rewriting section 1201 of the DMCA, which states that any action of circumventing a digital copyright protection scheme without consent of the copyright owner is a criminal offense. We must stand up and fight this!

In conclusion, the Digital Millennium Copyright Act has been pushed into our legal system backed by the money and power of corporate America. It restricts the First Amendment right of free speech. It tears at fair use rights that have been well established for the past two hundred years. It also restricts technological growth and leaves current technology with unfixed flaws. I will end with a quote from president Abraham Lincoln:

"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country.... Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

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affecting innovators

Dr. Joseph Portland's picture

This DMCA really has some holes in it. Why would some people stop other innovators from achieving their goal? I really think it is affecting the better future of the public. When will this be rewritten?

DMCA in 2004?

Anonymous's picture

bargainshare.com Black Friday 2004 Sale Ads and Deals

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It should be interesting to watch if the DMCA tries to pull anything this year. I'll be watching intently on that site.

Re: The Case Against the DMCA

Ian's picture

In the article, the author has missed a couple of things, and I feel also made at least one bad mistake that plays directly into the hands of the RIAA.

In speaking about 2600 magazine, the author missed the fact that the first trial was ruled by a judge that used to be an executive for Time Warner (Linux Journal, Jan 2002, pg 10). Clearly, this judge could not have been unbiased in this case, and would certainly not see the case through independent eyes because of his previous job with Time Warner. Now, because the MPAA have had their first win in court, it becomes more difficult to get a decision favouring the magazine and others who choose to publish the DeCSS. It also shows that the US legal system is not "unbiased" as it should in fact be.

The statement of compressing digital audio to transmit over internet efficiently plays directly into the hands of the RIAA. It is exactly this reason that the RIAA has been so agressive in trying to fight mp3's, and using the DMCA to do so. Here, the author has neglected to mention that the distribution to other parties of mp3's made from copyrighted matieral is itself a violation of existing copyright laws. These laws are sufficient to stop such copying and distribution of mp3's and video works, however the RIAA and record companies have shown little, if any, interest in pursuing any prosecutions under copyright law.

A much more legitimate use, and the one that should have been mentioned here, is the right, under copyright law, to make copies for your own personal use. The converting of music stored on a CD to an mp3 stored on the hard drive of your computer for playback is a legitimate and permissable action under copyright law, as is the copying of a DVD for your own personal use. These actions under the DMCA are illegal and people who do this could face severe criminal prosecution. The creation of mp3's from a copy protected CD's is almost certainly an offence under section 1201 of the DMCA because to create any kind of usable mp3 from a copy protected CD, you must take actions to circumvent the CD's copy protection. In short, the right under copyright law to create copies for your own personal use has been ripped away under the DMCA.

The DMCA has another, unseen side effect. Until it was passed, encryption and security measures were rapidly getting stronger. This was so because companies had to create strong security measures to stop hackers and pirates copying their matieral. The need to produce a stronly protected work, with the existance of the DMCA, no longer exists. The DMCA, as demonstrated by Dimitry Sklyarov, Advanced eBook Processor's creator, and John Johansen, the 16 year old who created the DeCSS, has allowed the use of weak encryption and copy protection methods. Now, the law and criminal prosecution under the DMCA have replaced good encryption and protection methods and copyright protection.

Legislation similar to the DMCA, the European Copyright Directive (EUCD), has been passed last year in Europe undere severe pressure from the US government and US corporations. Europe, did however, resist passing any such type of legislation because they saw it as it was, a violation of consumer rights, and a legislation that goes much too far. The exact conditions that caused the Europe Commission to pass this legislation are unclear, however it seems reasonable to expect that there were threats of the stopping of business relations, economic sanctions, or something similar.

Until the EUCD was passed in Europe, it was explicitly legal for software developers to reverse engineer a product for the purposes of compatibility. The DeCSS was created under exactly these conditions - the desire to have compatibility for the playing of DVD's on Linux. Under the new legislation, that right has been taken away.

The DMCA and the EUCD are unnecessary pieces of legislation. Copyright laws that have existed for many years were already sufficient to protect companies, artists, and those who chose to publish their work in some way. Companies have been unwilling to prosecute anyone using the existing copyright laws, not because those laws are insufficient, but because they are too lazy, or perhaps because they wanted to cry foul and get something as draconian as the DMCA introduced. If companies were serious about protecting their intellectual property, they would have been prosecuting for a long time already under copyright law.

Re: The Case Against the DMCA

Anonymous's picture

Companies, in general, do not prosecute to the full extent of copyright law in many cases because it isn't profitable. The individual who violates the copyright, in most instances, would've never paid the commercial price, not because they are immoral, but because they can't afford it. Since they can't afford it, the company cannot legally extract it from them - they don't have it.

Further, at least a fair number of the individuals copying software are individuals capable, if sufficiently motivated, to produce a better, competing product. However, since the DMCA blocks that in certain circumstances, as well, the company is now covered from this kind of competitive threat, so they can now be mean if they wish. (All you need to do is put some simple XOR "encryption" in your code, and it's covered.)

(Incidentally, I know of at least one company who had gone out of business due to enforcement of copyright laws (back in '96, or so). They were, in fact, enforced. It's just that one tried to target violators who could pay, rather than violators who would go bankrupt from legal expenses and so have nothing left to give. Under the DMCA, it's suddenly economical to make examples out of them.)

Re: The Case Against the DMCA

Anonymous's picture

I have no idea if something like this has been posted before, but I have a case inwhich the DMCA can in fact start taxation on intellegence that is not electronic. I have presented a nice argument in the following link

DMCA vs God

More prove that lawyers are trained by parties with the purpose of sending the human race into years of confusion

Re: The Case Against the DMCA

fipster's picture

In arguing against the DMCA, the author brings up several valid points. However, looking at the situation from a Devil's Advocate position, why would the RIAA wish to allow CSS to be ported to Linux? Your essential position on that particular matter is "they don't let me watch my stuff on my stuff because they want me to use Microsoft". This isn't entirely accurate - the RIAA most likely doesn't want to allow CSS to be ported to Linux because the GPL would require the source code for CSS to be freely available.

I can think of several reasons why not wanting this to happen would be a reasonable position for the RIAA (or any organization whose only asset is intellectual property) to take.

The core of the problem is not the DMCA, the RIAA, the GPL, Corporate America, etc. Corporate America isn't some star chamber of bigwigs from Fortune 500 companies saying to some black-cloaked figure, "Go forth and get Congress to pass this legislation, bwahh hahahahaaha!" In truth, Corporate America is not one entity, but several large industries worth hundreds of billions of dollars a year each of whom has one asset - intellectual property.

It would be disgustingly lax for the CEOs and legal departments of these companies not to support any legislation that would increase the value of their property - a violation of their obligations to their stockholders. Most of these stockholders aren't "Corporate America", they're ordinary, average Americans holding stock in their 401K programs, etc.

The problem that we have here, essentially, is that there is no way for these very valuable assets to be protected without sweeping changes in our legal system, some of which (like the focus of your article) have very ugly side effects from being poorly written.

I am not advocating re-writing the DMCA. I am pointing out that our existing concept of intellectual property is _not_ supportable or feasible by anyone, given the current state of technology.

You cannot protect the newest release of your commercial operating system (MS, in this example) when, before its official release, hacked copies are available all over the Internet.

We've created several industries - the motion picture industry, the music recording industry, the software industry, etc. in the last 50 years, all of which generate billions of dollars in revenue every year, all of which sell...

Nothing, really. The emperor isn't wearing any clothes.

The copyright law, as it currently exists, is horribly outdated, unenforceable outside of the United States, grossly unfair to consumers, and needs to be thrown away and re-written from scratch. The Guttenberg press destroyed hand-copying of literature and enabled the middle and lower classes to afford books. The computer is destroying the misguided notion that what you put on paper or code into a machine is _worth_ anything. I will accept that we _want_ a movie industry (I like blockbusters, at least, I like the 1 out of every 20 or so that's worth watching). I will accept the fact that we _want_ commercial software (I know many programmers and want them to continue to be able to make a living).

I will _NOT_ accept that a company can continue to hold a copyright over a piece of software that it no longer supports. I do not accept that anyone should be able to make hundreds or even thousands or millions of times more money than a policeman, a fireman, a doctor, or even a farmer just by recording music (yes, I know that 99.99% of recording artists don't make large sums of money, except when they tour).

A reasonable copyright law needs to be written. Something that allows companies to get a reasonable return on their investment in researching and developing new technologies. Something that allows people to make a good living writing, or coding, or doing anything else that creates intellectual property that has value.

Just my $0.02

Re: The Case Against the DMCA

Anonymous's picture

They would only need to do any tricks to avoid GPL if they were linking to or otherwise incorporating GPL code.

CSS code has no need to link with *anything*. It technically doesn't even need to use any system calls. CSS code would be best implemented as a stand-alone library, and while other programs would dynamically link to it, nothing would need to link to it. Mentioning the LGPL is pointless, because it's irrelevant to the issue. The GPL blocks this much like the DMCA blocks my use of toothpaste in the morning (i.e. it doesn't.)

Incidentally, the money in the music industry isn't in recording. It's in the distributing. That is, the ones making the big bucks are not the artists. That, IMHO, is even worse.

Re: The Case Against the DMCA

Anonymous's picture

I think the whole idea about "software being free" is very stupid. You would destroy thousands of jobs doing so and in the end most people are worse of than before. After all, a lot of software is created by full-time employees and if the companies cannot charge for their software since "it ought to be free", they won't be able to hire programmers and those people would have to find another job and prolly couldn't even buy a computer.

Just because software is not tangible like hardware, doesn't mean that it doesn't cost anything to produce it. Just because the act of duplicating it is (more or less) free, doesn't mean that the first, original copy of it wasn't expensive to create.

Somehow the companies have to make money to pay you, us the programmers/computer geeks.

This does not mean that I am advocating the DMCA. I personally hate it, but on the other hand I think it's not a good idea to just over generalize and say that all software should be free. Software provides a service, just like your hair cutter does. And you pay your hair cutter, because he/she does something for you that you need. The same should apply to software. Just because you CAN copy and obtain it for free, doesn't mean that it's right!

MST

Re: The Case Against the DMCA

Anonymous's picture

Free software doesn't necessarily mean the software has no purchase price, it means that you have rights associated with ownership, such as access to source code and the ability to change it, etc. Many of the companies providing "free" software do charge for it, at the very least for some formats. To quote the free software foundation:

"Free software'' is a matter of liberty, not price. To understand the concept, you should think of "free'' as in "free speech,'' not as in "free beer.''

Additionally, no one is forced to offer "free" software unless they have used someone else's code that is covered by the GPL. If I write code and publish it under the GPL, you may not use my code and offer a closed-source product derived from it. That's a licensing issue, not a philosophical one.

Re: The Case Against the DMCA

Anonymous's picture

As much as You would like to,we don't need that much programming jobs. These people should do something else and contribute to society in a better way than writing the same things over and over again. There are enough jobs left for normal programmers like people who work on special solutions for particular problems. and the others should go out and get a real job.

But using the law to comercialise even basic software doesn't help anyone but a few thousand programmers and of cause the government which found a way to squeze more tax money out of it's citizens.

Alexander

Re: The Case Against the DMCA

Anonymous's picture

Just because a company ports an app to Linux doesn't mean that app has to be open-source. Whatever anyone tells you, Linux is not the GPL and the GPL is not Linux.
RIAA could easily release a commercial version of CSS for Linux as a closed-source app (think Netscape {not mozilla}) or release it under the LGPL license which allows for derivitive works to be closed-source.

Re: The Case Against the DMCA

Anonymous's picture

Has any enterprising company created a closed-source CSS solution for Linux which is licensed? If so, where can I get it and how much does it cost?

Re: The Case Against the DMCA

Anonymous's picture

I agree, remember that Oracle, IBM and others release closed source programs and libraries on Linux. A simple decoder library would be all that is required for the Linux community.

Re: The Case Against the DMCA

Anonymous's picture

OK, now, think about this. In the first place, the DMCA was inplemented to prevent people from copying stuff. Then they implemented all these copy-protection schemes. And all of them were broken.

I think that, the main reason that these are broken, is not for the money, or for the content. Half the time it is for pure fun, a personal challenge.

It's like the first time you were able to get a program running: It was just damn cool!

Now, the DMCA is preventing our rights.

From my point of view, it is just to make some company richer.

Many reasons people copy stuff, is that it is easy and free. Adobe After Effects 5.5 is over $1,000 dollars. I know that people will pirate it, not because they want to, but because they can't afford it.

If you consider it, legally, DVD playback requires money to play back legally. Besides the cost of the drive itself, and the media, the decryption software costs money. Many times, the royalty is a relatively low amount, like $5 dollars per unit. While that sounds like it is not much, think how fast it adds up.

Ok, let's just see the incorporated costs (besides hardware) to play back a DVD legally.

You need a Windows or Macintosh operating system.

You need DVD playback software.

Or, if your going to play it back through set-top,

you need a DVD-Player.

While I can concede that playing it back costs money, why should it cost us any money to play it back when we already have the hardware?

Most modern computers have DVD Drives. Most computers are powerful enough to decode MPEG-2 realtime. All the parts are there, it's just a stupid greedy company, who decided to make just a little money because they are worried about copying.

Granted, I can see that the artists and the companies need to make money somewhere.

However, consider the case of Linux, and it's distribution. It is "free" to obtain ( I won't go into the nitty-gritty on web connection pricing), but if you want to get an official set, it's 40 dollars (approx). Most of those costs are for the actual printing of the manuals and the stamping of the CD-Roms.

Why can't it be the same for Videos and Music?

I feel that once you have bought something, it belongs to you. Not licensed, not loaned, but you own it. Period.

I feel that it is the same with software. Yes, people put long hours into making it. Yes, people want some sort of profit. Yes, people would like to keep their ideas secret. I'm sure I have techniques in Photoshop which I'd rather not reveal.

That's all fine, and there's no problem with that.

However, when you start making it copy-resistant, what really happens?

1. Consumer buys product.

2. Consumer finds out that it won't work with existing technology.

3. Consumer is forced to buy a new reader.

4. The reader cannot work with other formats.

5. Consumer is frustrated.

6. Consumer is upset.

7. ETC.....

Most of the time, what happens is that consumers get upset, companies get upset, somebody breaks the encryption, and in the end, it's just one whole big mess.

I firmly do not support the DMCA.

To Hell with DMCA!!!!!

$cat DMCA|/dev/null :)

Flame Me @ tbird_web@linuxfreemail.com

How would this affect Compaq if it had been in place 20 years ag

Anonymous's picture

It sounds like it is a good thing that the DMCA was not in effect when Compaq entered the PC market. We could all still be paying $5000 or more for every computer, and IBM would probably be the only PC manufacturer allowed to make a PC BIOS.

Compaq hired Phoenix to create a BIOS so they could make PC clones. IBM originally built the PC out of off the shelf components, so that only the BIOS was copyrighted. Phoenix hired two teams of developers, one team disassembled the IBM BIOS and documented every function that it performed. The other team took their documentation and wrote a clean room version of the BIOS to sell to Compaq.

Re: The Case Against the DMCA

Anonymous's picture

Particularly in the DeCSS case it appears to me that there is a violation of the anti-trust laws by the industry. They have regulated access to their technology in order to protect manufacturers of players from cheaper amd more powerful competition. I think it would be a good thing if somebody was to press charges for such attempts by industry groups.

Re: The Case Against the DMCA

andy_b's picture

Unfortunately, who has the money to do this? oh yeah... the MPAA :(

Re: The Case Against the DMCA

Anonymous's picture

yeah. don't forget that extracting the sound from a DVD to put in a CD so you can listen in your car is EVIL and MUST BE STOPPED!

damn, i'm so glad i live in europe!

Re: The Case Against the DMCA

Anonymous's picture

To the poster who believes that living in Europe somehow exempts him from the DMCA, think again.

Firstly, just like Dmitry Sklyarov, you can be arrested the next time you go to the US on holiday, on a business trip, or whatever. Are you really sure that you're willing to *never* enter the US for the rest of your life? If your employer asks you to go on a business trip to the US, will you have to refuse? How will your employer take this?

Secondly, the US government is very good at putting pressure on other governments, who usually back down rather than actually stand up for their citizens. (The case against Johansen in Norway is an example of this.) The Hague Convention on jurisdiction has also been invoked by US companies trying to sue citizens of countries with less stupid governments.

See http://www.cptech.org/ecom/jurisdiction/whatyoushouldknow.html for more information on the Hague Convention.

Finally, the European Union is also getting into the act with poorly written, poorly thought out legislation apparently written entirely by media company lawyers. It's called the European Union Copyright Directive (EUCD), although most people refer to it as "a poorly localised version of the DMCA".

See http://uk.eurorights.org/issues/eucd/ for more info.

The site http://www.ntk.net/ is also worth reading for European (especially UK) electronic freedom issues.

Re: The Case Against the DMCA

Anonymous's picture

Actually it is already EVIL in Europe too. There was an EU eddict about that. Even worse, they don't have the part about scientific work being allowed in it.

Alexander

Re: The Case Against the DMCA

Anonymous's picture

Well.. NO why is it EVIL to listen to a DVD that YOU bought in YOUR car? if you got a twelve volt TV and DVD player and stuck them on the back seat of your car to listen to while driving to work, would that be OK? Then why not stick it on CD and listen to it in your car CD player.. It would seem more sensible. And people wouldn't break into your car to steal the TV and DVD player!

Re: The Case Against the DMCA

Anonymous's picture

I hate to say it - but Europe is not safe.

I can't recall the hard facts, but AFAIK the european parlament is working on laws that will do something alike to the DMCA...

Re: The Case Against the DMCA

Anonymous's picture

You may be thinking of this:

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=32001L0029&model=guichett

There is still time to stop it though. We should be working against it.

Re: The Case Against the DMCA

Anonymous's picture

Why is it so obvious to me that the DMCA is unconstitutional because it usurps the presidential prerogative of executing law, but no one else has anything to say about it?

Just for an exercise, imagine you were a Congress critter, someone to whom laws are a tool just like my keyboard is a tool to me. Then, for the sake of argument, imagine that you were going to intentionally set out to usurp the president's authority to execute copyright law. What might such an effort look like? Remember, for this exercise, laws are the tools of your trade. But just to make it easier suppose you can enlist the aid of the content industry and the manufacturers of devices capable of copying copyrighted material.

When I put my mind through such an exercise, what I come up with looks a lot like the anti-circumvention section of the DMCA! And the recent CBDTPA is the same thing disguised as a law regulating interstate commerce.

Why is it so hard to see, that any attempt at automating enforcement of copyright law, that does not occur as part of a presidential directive or some such tool of the executive branch of government, is usurping the prerogative of that same branch of government to execute copyright law? Why isn't it as obvious to others as it is to me, that when Congress lends its aid to such efforts without the benefit of a constitutional amendment, it is exceeding its authority?

Can someone please explain it to me?

Anthony Christopher

Re: The Case Against the DMCA

Anonymous's picture

The Executive merely enforces the law. Congress makes the laws. This distinction is written in the Constitution. Congress can pass any law they want as long as it is Constitutional (this one is debatable, but now that it has been signed it will have to go through the courts), or as long as the people allow thier Congressman to vote for it without repercussions.

We must apply pressure to our Reprsentatives in the House and let them know that we see how they have voted to take away our "fair use" rights. Attend the speeches and meetings of your Representative this election year. Ask him or her how they will vote on this issue. Ask them what kind of contribution these corporations made to thier re-election campaign. There are a lot more states that do not depend on these media companies than there are that do. The votes to repeal would be there if the people of this country will just stand up and demand it.

If the law is repealed the Executive branch has nothing to enforce. Keep in mind that the President signed this bill to make it law. Congress did not do this without his help.

The key to all legislation is the House of Representatives. They are elected every two years meaning thier voting record is up for review every two years. Vote in the primaries not just the general election. Once the general election comes up you will only have two choices (most the time) bad and worse.

Call your Representative today. This law will not go away easily, and will grow into something worse if it allowed to survive.

Robert Gray

Re: The Case Against the DMCA

Anonymous's picture

If the law is repealed the Executive branch has nothing to enforce. Keep in mind that the President signed this bill to make it law. Congress did not do this without his help. If this was on the books as a presidential decree that might be worth noting. But it is on the books as a law, it is irrelevant. As a law, it is unconstitutional.Those challenging the law by acting against it to get it before the courts may want to look to see if there is any precedent for using a presidents signature on an unconstitutional law for converting it to a presidential decree. If there is no such precedent, no such precedent should be set. There needs to be a clear procedural, as well as legal, distinction between acts of the executive branch of government and acts of the legislative branch, simply to avoid confusion.

Re: The Case Against the DMCA

Anonymous's picture

That may help in some sort of limited, mild, diluted way. However, incumbents have unlimited amounts of your money to waste on federal PR and do so to great effect. The voting process on the national level is largely a way to give real people the illusion that they have any control of their government. If the "little" people believe that the election results are a consequence of their own behavior (i.e., it's their own fault) they're easier to control.

Voting works better on a local level; the rule is, the more personal the election, the more one actually has to do with the results. If you actually shake hands with, argue with, and see the officials and candidates live on a regular basis, rather then have some goofball like Dan Rather give you the scoop, the better chance you have of making a difference.

City elections are wonderful. I don't know why so few people actually go to their townhall meetings - townhall meetings and county meetings are the place citizens actually have a true voice.

Getting back to the national level, if you really want to try to get control of something like the DMCA you will have to do more then "vote for your congressman and senator". Yea, right! blah, blah, blah.

What you will need to do is focus in on the individual congressmen and senators that pushed this thing and got it going. Focus is everything. You will have to focus in on the individuals who did this and make it very personal and nasty and public.

And you will need numbers. Individuals only get form letters from Monica Lewiskys, if they get anything at all, which usually they don't. I know that my current congressman has never bothered to respond to any of my letters (which have all been positive, by the way, which makes it even more strange).

The kosher way, of course, - the method favored by the music and film industries - is to buy your congressman with large cash donations to their reelection. Since there is usually little doubt about the reelection chances of an incumbent you know what the money actually is. $50,000 is the generally accepted starting amount I believe.

Re: The Case Against the DMCA

pstreck's picture

I have never really thought about the DMCA that way. It's an interesting perspective, but like myself I don't think many people think of the president of really enforcing copyright law. I can't recall a president ever enforcing a copyright law actually, usually it seems to only come in up in lawsuits.

Phil Streck

Re: The Case Against the DMCA

Anonymous's picture

It's called "Delegation of Authority". The authority starts with the head of the executive branch, a.k.a. Mr. President and is delegated to the lowliest of federal law enforcement.

Ronald Cole

Re: The Case Against the DMCA

Anonymous's picture

Thanks, I think I begin to see some of the reason. In areas outside my expertise, I often think in general terms first. So when I learn of any law executed outside the executive branch of government it triggers alarms in my mind. That enforcement of copyright has historically been left to a rather passive enforcement that depends upon those with an interest in copyright policing their copyrights and bringing suit when they see their copyright violated, does seem to leave it outside the president's sphere. Has the executive branch failed in its responsibility to "take care that the laws be faithfully executed" when it comes to copyright law? But the DMCA, not only automates the execution of copyright law, it shifts it from passive to more than active enforcement, at least on the part of the technology. By that I mean, where copyright law in the past has come in to play after a violation, and in response to the complaints of a copyright holder, the DMCA, by way of a "technological measure" attempts to prevent any violation before hand and the only connection it has to the copyright holder is the opportunity they have to put their "work" under its protection. So, I can see that the change in the actual enforcement is not so noticeable, except to copyright holders. But the alarm bell is still ringing, "Someone has undertaken to automate the execution of a US law outside the purview of the executive branch of government." The fact that the execution of that law in the past has been passive rather than active, seems irrelevant. The fact that it is, at least, left to the executive branch of government to execute the protection of the "automating machinery", my words, also seems irrelevant. This kind of automation must either, share the limits of executive powers because it originates with the executive branch, or it requires a constitutional amendment to extend well defined powers to the "automating machinery".

Still, it seems odd to me that I seem to be the only one who thinks first in general terms and then reaches these conclusions.

Anthony Christopher

Re: The Case Against the DMCA

Anonymous's picture

Copyright law is (pre-DMCA) civil law, not criminal. It provides for certain civil penalties if one party violates the copyright of another. As a copyright dispute is only between the owner and the alleged violator, the state (the judicial branch) need only become involved if the dispute cannot be resolved in some other way.

Only if the government is one of the parties to the suit does it become necessary to examine its constitutional responsibilities.

Since the DMCA, certain types of infringement (and enabling infringement) have become criminal as well as civil offenses. For prosecution to occur under these provisions, a U.S. district attorney would have to become involved, and this would come under the issue of the constitutional requirements on the executive branch. Civil resolution, of course, can still be gained by a lawsuit without involving the government as a party.

Re: The Case Against the DMCA

Anonymous's picture

So, other people, knowing that copyright historically provided for civil remedies to copyright violation, figure that Congress has the power to automate the execution of laws that previously had only civil penalties, perhaps in keeping with the section of the Constitution that says Congress has the power:

" To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. "

That still doesn't seem quite right to me! I still think it represents an attempt to extend their authority in a way that encroaches on presidential authority. It would seem to allow Congress to reduce any law, not constitutionally specified as a criminal offense, to a civil offense, provided they could sell such actions to the public, and then once the public is used to the law having only civil remedies, automate its execution, and thereby do a thorough job of usurping executive authority.

At the very least, it seems worthwhile to bring the issue to the notice of the courts!