[tlug] Stop the FUD! here are some facts on the DMCA

["Stephen J. Turnbull" <stephen@example.com>]

>>>>> "Godwin" == Godwin Stewart <godwin.stewart@example.com> writes:

    Godwin> On Thu, 03 Aug 2006 13:52:23 +0900, "Stephen J. Turnbull"
    Godwin> <stephen@example.com> wrote:

    >> No, it's not.  Circumventing copy protection per se is *never*
    >> a DMCA violation.

    Godwin> 'fraid it is.

*sigh*  Did you really think I was unprepared to quote chapter and
verse, or that I'd fear the bandwidth police?

First, please see the Copyright Office's summary
http://www.copyright.gov/legislation/dmca.pdf, which on pp. 3-4 says
"Section 1201 divides technological measures into two categories:
measures that prevent unauthorized *access* to a copyrighted work and
measures that prevent unauthorized *copying* of a copyrighted work.
Making or selling devices or services that are used to circumvent
either category of technological measure is prohibited in certain
circumstances, described below.  As to the act of circumvention in
itself, the provision prohibits circumventing the first category of
technological measures, but not the second."

Next, to verify that that actually is an accurate summary of the law,
please compare the wording concerning *access control*:

----------------------------------------------------------------
       `(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL
MEASURES- (1)(A) No person shall circumvent a technological measure
that effectively controls access to a work protected under this
title. The prohibition contained in the preceding sentence shall take
effect at the end of the 2-year period beginning on the date of the
enactment of this chapter.  [irrelevant text elided]

       `(2) No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof, that--

            `(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls access
to a work protected under this title;

            `(B) has only limited commercially significant purpose or
use other than to circumvent a technological measure that effectively
controls access to a work protected under this title; or

            `(C) is marketed by that person or another acting in
concert with that person with that person's knowledge for use in
circumventing a technological measure that effectively controls access
to a work protected under this title.
----------------------------------------------------------------

with that regarding DRM:

----------------------------------------------------------------
       `(b) ADDITIONAL VIOLATIONS- (1) No person shall manufacture,
import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof,
that--

            `(A) is primarily designed or produced for the purpose of
circumventing protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in
a work or a portion thereof;

            `(B) has only limited commercially significant purpose or
use other than to circumvent protection afforded by a technological
measure that effectively protects a right of a copyright owner under
this title in a work or a portion thereof; or

            `(C) is marketed by that person or another acting in
concert with that person with that person's knowledge for use in
circumventing protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in
a work or a portion thereof.
----------------------------------------------------------------

Note the *complete* absence of language in part (b) that parallels
(a)(1)(A), while (b)(1) is completely parallel to (a)(2).

Finally, read the EFF's take in "DMCA Legislative Background"
http://www.eff.org/IP/DMCA/20030102_dmca_unintended_consequences.html.
Don't be fooled by their deliberate use of ambiguous phrasing that (if
you know what the act says) *could* mean "not including circumventing
copy protection", but any naive reader will interpret as "all
circumvention."  The actual content is the same as the Copyright
Office's!  Except that they deliberately omit the clear statements
about which acts are actually prohibited.  They know, but they don't
want us to know.  FUDding bastards, just like the media corporations.

The DMCA does not prohibit circumvention of DRM.[1]  As far as I can
tell, it does not prohibit offering a service of circumventing DRM for
the purpose of fair use (because the copyright holder does not have
the right to prohibit copying which is fair use, so all of A, B, and C
are irrelevant).

Granted, in practice, you'd be nuts to offer such a service to the
general public; the media companies would file charges in every single
case until you gave up, and since fair use is defined as "whatever a
judge thinks is fair use", you'd have no recourse but to pay the court
costs, and you'd probably lose on occasion, too---which would be very
uncool.  But you could probably safely make a few euros catering to
libraries and the like.

I now see that the EFF also derived the analysis of the preceding
paragraph in the section "Copy-protected CDs", but curiously enough
they don't mention http://www.copyright.gov/1201/anticirc.html
(granted, now expired; section (a)(1)(C) provides for an ongoing
process, I don't know whether the exemptions have been extended).
BTW, the description of the Edelman case on the EFF page is very
bizarre, because that finding explicitly exempts "Compilations
consisting of lists of websites blocked by filtering software
applications" (ie, what Edelman was in trouble for accessing).  Why an
ACLU suit was necessary would be interesting to know.

    Godwin> While I understand the principles behind DRM, the whole
    Godwin> thing has gotten completely out of hand. It's the media
    Godwin> companies who are writing our laws now.

That's another issue.  I think that's a substantial exaggeration, but
they certainly have plenty of power to bias things in very dangerous
directions.

That bias is only increased by FUD like "the DMCA prohibits
circumventing DRM."  There *is* an important difference between
"legally prohibiting" and "making prohibitively expensive," and it's
important to be able to make such distinctions when you are condoning
what is obviously theft under the law, as Doctorow does in his essay.
If you can't, you look like a three year old whining about "deserving"
a cookie.  Courts and legislators pay no attention to three year olds
and their "fair snacking" rights.  Worse, the bad guys can make a
plausible case that everybody opposed to the DMCA really just wants to
be able to infringe copyright with very low risk of getting caught,
like Doctorow.

In fact, if you go to the EFF site, you will see a list of cases where
in the majority the courts decided the right thing, but people decided
not to be free anyway.

I don't blame the people, but this is nothing new.  Freedom has always
been gained only at the cost of the blood of patriots.  Any law can be
(and is) abused to extort from people who can't afford lawyers; does
that really imply we want *total* anarchy?

Please, let's fight what needs fighting, not what doesn't.  For
example, as the EFF page points out, the prohibition on circumventing
*access control* does threaten a very narrow but important class of
fair use (whistle-blowing).  The clauses defining circumvention
devices should be *conjunctive* rather than disjunctive.  The
exemptions (eg, for security research) *are* too narrow.  More
important, new proposed legislation directly squelches free speech (as
in France) and mandates technology (which in fact the DMCA mostly
avoids).


Footnotes: 
[1]  Rather, it prohibits circumvention of privacy protection, since
under the Berne convention everything you write is automatically
copyright.

-- 
School of Systems and Information Engineering http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.