Mad As Hell About The DMCA

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Mad as Hell about the DMCA


By "Beale Screamer"



This document is intended as a position paper on copyright and the

abuses the copyright system has undergone, especially with the

introduction and abuse of the notorious Digital Millennium Copyright

Act (DMCA). This document is originally distributed with software

that in fact clearly violates the DMCA, and so this gives background

on why I would write this software. I hope that anyone who uses this

software reads the "README" and "LICENSE" files in the same

distribution, and respects my wishes as to how the software should be

used. I do not want to create massive copyright infringement, but

rather hope to give people the tools to regain the rights that have

existed for centuries with respect to copyright, and are now in danger

of being taken away in a most uncompromising manner.

Copyright has always been intended as a balancing act between the

rights of authors/publishers and the rights of consumers. Technical

advances are making it possible for publishers to take away

technically what they would have a hard time justifying legally or

morally. And unfortunately, in a misguided attempt to address

copyright issues in the digital age, the U.S. government has given

legal backing to the technical means through the DMCA, outlawing

attempts at circumventing these technical protections. In effect,

this gives publishers full and complete control over copyright issues,

without the annoyance of actually having to go through the usual

legislative debate and judicial review. As a shock to no one, the

publishing industry (particularly the MPAA and RIAA) have used the

DMCA as a bludgeon to attack anyone who suggests that consumers and

citizens have rights too. I hope people take my civil disobedience as

an opportunity to send a message to publishers. To borrow words from

Howard Beale in the movie "Network," just yell to the publishers "I'm

mad as hell, and I'm not going to take this anymore!"



DISCLAIMER

I am neither a lawyer nor a copyright expert, so my personal opinions

are really those of an "interested outsider." I have done extensive

reading on the basis and history copyright, as well as following the

most visible current legal cases regarding the application of

copyright and the DMCA. But clearly no one should take any of the

information or ideas of this document as legal advice or precedent! I

*am* an expert on the technical issues involved, and plan on being a

thorn in the side of the publishers until they adopt a more reasoned

and reasonable approach. The current climate regarding these issues

leaves me little choice except to remain anonymous. I don't intend on

being a martyr, or on spending the next decade of my life defending

myself in legal proceedings.



HISTORY OF COPYRIGHT

The history of copyright has been written many times, but a good,

brief account is available from the Association of Research

Libraries [1]. For the past several centuries, copyright law has

tried to balance the rights of consumers with incentives to authors

and publishers for promoting their work. It is quite explicit in the

intent of copyright that in the sale of a copyrighted work, "once

purchased the copyright owner does not control the use of the work" [1].

Lawrence Lessig, a Stanford law professor and expert on these issues,

echoed this observation in an interview when he pointed out that "The

traditional idea of fair use - and the law has been extremely vague in

defining this - is that the copyright owners do not have the right to

perfectly control how you use their copyrighted material" [3].

However, the situation today with the DMCA is precisely the opposite

of this intent: the use of the DMCA often does not have to do with

limiting copying or distribution, but rather with restricting the use

of the copyrighted work. The violation of this intent was described,

among many other places, in quote taken from a New York Times article

in which they wrote "In the past, when a company published a book, the

fair use rights of readers limited its control over the work. But if

the same company issues a book today and encrypts it, its control over

readers is far greater -- in fact, almost unlimited -- unless there is

a right of access to the material."

The DeCSS case is a particularly flagrant example of this: the DeCSS

code does not have any effect on DVD pirates, who can simply copy a

full disk as-is. The entire purpose of using CSS by DVD publishers

seems to be to restrict how the material is used! The purpose of

DeCSS was to allow legitimately purchased DVDs to be played on Linux,

a system that at the time did not support DVD playback. It is

abundantly clear that this is 100% OK with respect to copyright;

however, it violates the DMCA, since the *use* of the material is in a

manner inconsistent with what the publisher desired.

The erosion of the reader's/listener's rights has been a steady process

for many, many years. The limited time granted for copyrights has

been repeatedly lengthened, and now is a totally preposterous 70 years

past the death of the author. While the "limited time" is no longer

terribly limited, the introduction of the DMCA goes even farther in

this extreme by allowing publishers to have an infinite-time monopoly

on a work: they can simply put technological protection measures on a

work, and the DMCA makes removing those measures a crime even when the

work is no longer covered by copyright!

The best treatment I've seen of these issues is an excerpt from Siva

Vaidhyanathan's book "Copyrights and Copywrongs: The Rise of

Intellectual Property and How it Threatens Creativity" that was

published on msnbc.com [2]. If the bulk of the book is as good as the

excerpt, this will be an outstanding book, and I take the liberty of

quoting quite a bit from this work here. As an overall background to

copyright, Vaidhyanathan begins with the following:

Copyright, when well balanced, encourages the production and

distribution of the raw material of democracy. But after more than

200 years of legal evolution and technological revolution,

American copyright no longer offers strong democratic

safeguards. It is out of balance. And our founders - especially

Thomas Jefferson - would not be pleased.

Copyright was created as a policy that balanced the interests of

authors, publishers, and readers. It was not intended to be a

restrictive property right.

I have to agree that the founders would not be pleased with what is

happening today. Vaidhyanathan quotes the following passage from

Thomas Jefferson regarding copyright: "It's peculiar character, too,

is that no one possesses the less, because every other possesses the

whole of it. He who receives an idea from me, receives instruction

himself without lessening mine; as he who lights his taper at mine,

receives light without darkening me."

One of the big successes of publishers such as the RIAA and MPAA has

been a steady erosion and public brain-washing regarding the point of

copyright. A simple but effective measure has been the modification

of terminology that is used for copyright violations: they speak of

people "stealing intellectual property" or "theft of copyrighted

music" in the trading of MP3s. The wide-scale copying ala Napster

clearly is copyright violation, but "theft"? The definition of

something being "stolen" means that it is taken from the rightful

owner - and the owner no longer has possession of that item. As

Jefferson observed several centuries ago, this simply doesn't apply to

the types of material that are copyrighted. Making a copy of an item

doesn't in any way remove that item from the original possessor, so

"theft" is clearly an inaccurate terminology. However, the

publishers' insistence on using that word, and the public's acceptance

of it, means that a much more negative light is cast on an action

that, while wrong, is nowhere near the severity of a true "theft."

The use of terms "theft" and "intellectual property" cleverly casts

copyright issues as being "property" issues, although Jefferson and

other founding fathers explicitly did not accept the idea of writings

as property. Remember: just because the publishers want you to think

of recordings and music as property does not make it so!

One final quote from Vaidhyanathan, this time talking directly about

the DMCA:

This law has one major provision that upends more than 200 years

of democratic copyright law. It forbids the "cracking" of

electronic gates that protect works - even those portions of works

that might be in the public domain or subject to fair use. It puts

the power to regulate copying in the hands of engineers and the

companies that employ them.

The last sentence is vital: the regulatory role regarding copyright

has now been fully turned over to the publishers and technology

producers. Congress has explicitly written itself out of the loop on

such regulatory issues, and has thrown the balance between publishers

and citizens entirely to the control of the publishers. The citizens

have lost their voice in these matters, and unless Congress acts to

drastically change the DMCA and reassert the consumer side of the

balance, we simply will have no say in what rights the publishers

deign to allow us to have.



HOW THINGS SHOULD BE

Any Digital Rights Management (DRM) scheme has two sides: on the one

hand, the most obvious use is to take away the rights of the consumer.

On the other hand, it can in fact be used to give the consumer *more*

possibilities than existed before. I think the idea of limited time,

full-length previews, or time-limited Internet-based rentals is

excellent. If DRM was *only* used for this, in order to give us more

options than we previously had, I would not have taken the effort to

break the scheme. What is bad is the use of DRM to restrict the

traditional form of music sale. When I buy a piece of music (not rent

it, and not preview it), I expect (and demand!) my traditional fair

use rights to the material. I should be able to take that content,

copy it onto all my computers at home, my laptop, my portable MP3

player, ... basically anything I use to listen to the music that I

have purchased. I can't do this at all with Microsoft's DRM scheme.

Ideally, I would see two types of sales: limited, clearly spelled-out

licenses for rentals and previews, and traditional sales, where the

content is not protected, and ideally is provided in an open,

non-proprietary format. As long as publishers insist on removing our

rights in a traditional sale, we will continue to fight back with

technical and legal measures.

To complicate matters in the specific case of Microsoft's DRM version

2 technology, not only are licenses applied, but there doesn't seem to

be a clear way to even see what your license really enforces. A

technically skilled person who knows how the scheme works can look

through the binary license file, find the ACTION strings, and figure

out what restrictions the license imposes, but the overwhelming

majority of people simply will have no idea what license they have

purchased. If a publisher decided to hide a 5 year expiration date in

the license, for whatever reason, the average consumer would have no

way of knowing this. And after 5 years, your license would go away,

and there would be nothing you could do about it.

Laws passed by the government should not simply do corporate bidding.

Congress is supposed to be there to protect *our* rights, but

unfortunately, money talks, and that seems to be the basis of the

DMCA. Even with legal issues put aside, technology has the ability to

take away our rights, especially if cryptographic "secure hardware"

gets incorporated into devices. The government should be using its

power to *limit* that, not enhance it! In other words, the government

should be passing laws that guarantee that the citizens retain their

fair use rights, *regardless* of what the technology allows. And laws

should somehow (escrowed keys for corporations, perhaps!?) be in a

position to guarantee that technical measures expire at the same time

the copyright does, forcing the work into the public domain as has

been happened historically. And finally, if the technology is used

for new services, laws should ensure that the technology should be

designed in such a way that full disclosure of license restrictions is

made to the consumers.

I'm not sure I hold out much hope of this happening. The publishers

will certainly fight strongly against it. But until such changes are

made, expect to see me and others like me doing acts of civil

disobedience in order to salvage what we can out of this travesty.



CURRENT ABUSES

The DMCA has been used in a reprehensible fashion in at least 3 cases:

the DeCSS case, the case of Edward Felton, and the case of Dmitri

Sklyarov. The DeCSS case was mentioned above, where the MPAA used the

DMCA as a weapon to attack a tool whose primary use is to make legal

use of legally obtained material (DVDs). However, since the

particular use is not sanctioned by the MPAA, they used the DMCA to

criminalize what would otherwise have been a perfectly legal use.

Increasing the level of appalling behavior, the SDMI Foundation

threatened to sue Professor Edward Felton for disclosing an attack on

several of the SDMI audio watermarking technologies, even though the

attacks were performed at the specific invitation of the SDMI

Foundation! By participating in the SDMI challenge, and rejecting any

claims to the cash prizes offered, the challenge announcement clearly

allowed Felton to retain rights to publish details of his work. In

the DeCSS case, Judge Kaplan decided that DeCSS could be suppressed,

despite first amendment concerns, because computer code was not

allowed the same rights as English prose. This seems to contradict

the decision in the Bernstein case that source code is protected

speech, but this is just one of the many decisions Kaplan made in this

case that were very poorly thought-out. Kaplan decided that code

wasn't protected speech, so Felton's paper carefully avoided including

any code, and stuck to straight English descriptions. Even so, the

SDMI Foundation, in its initial threats to sue Felton and his research

group, was somehow trying to make the argument that English

descriptions are no longer protected speech. This is clearly absurd,

and the RIAA and SDMI Foundation have apparently understood this and

backed off in their initial threats, now going so far as to claim they

never intended to sue. However, their actions with Professor Felton

are clearly at odds with their later revised history of events.

Finally, the case of Dmitri Sklyrov is perhaps the most appalling of

all. Among its other problems, the DMCA has taken what has

traditionally been a civil matter (copyright issues) and criminalized

certain actions. Dmitri Sklyrov wrote a program that removes

protections from Adobe e-books, restoring traditional fair-use rights

to e-book owners. Furthermore, he wrote this program in Russia, where

it is not illegal. His company (and I don't believe there are any

claims that he did this personally) distributed his unlocking software

from a U.S. website, and on the basis of this Sklyrov was arrested

when he made a trip to the U.S. Sklyrov has actually spent time in

jail on these extremely flimsy grounds, and faces a criminal

prosecution in the matter. Despite the fact that Adobe has

subsequently said it doesn't wish for Sklyarov to be prosecuted, the

government is continuing in its case. This is apparently the reward

that the government gives for people who stand up for their fair use

rights under copyright law, and is the primary reason I'm remaining

anonymous.



FUTURE

What does the future hold? Hopefully, the government will start

acting to protect citizen's rights instead of corporate interests. If

this doesn't happen, expect to see many of the current DRM schemes

being very publicly broken as an act of protest. I will stay quiet

for a while, until any publicity of this current work dies down, but

there are many, many others out there that have the ability to do

precisely what I've done, and are in fact doing so right now.

Remember: "We're mad as hell, and we're not going to take this any

more!"



REFERENCES

[1] http://www.arl.org/info/frn/copy/timeline.html



[2] http://www.msnbc.com/news/594462.asp?cp1=1



[3] http://www.openp2p.com/pub/a/p2p/2001/01/30/lessig.html



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