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The Politics of Copy Protection Technology
by Damian Yerrick
The Constitution of the United States of America recognizes copyright not as a natural right of artists but instead as a tool "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" as stated in the Copyright Clause (U.S. Const., art. 1, sect. 8, cl. 8). This tool is becoming increasingly unfit for this purpose, as technologies that attempt to enforce copyright push their politics too far, butchering the rights of consumers (hereinafter "You") as well.
Called the "Copyright Theft Act" by critics, the Sonny Bono Copyright Term Extension Act was lobbied for by Disney et al. and passed in October 1998 by voice vote during the Monica Lewinsky scandal. It set a precedent that effectively put everything created on or after 1923 under perpetual copyright in the United States, as Congress can always add 20 years whenever, say, Mickey Mouse is about to hit public domain (Seltzer). Eventually, nobody will remember what a "public domain" ever was.
At first glance, the Constitution seems to limit the duration of copyright to reasonable terms, giving Congress the power to grant such rights "for limited times" (U.S. Const. art. I, § 8, cl. 8) (emphasis mine). But the United States District Court for the District of Columbia seems to be of the opinion that Congress has the power to set unrealistic and counterproductive limits, just so long as they are limits (Eldred v. Reno decision). For example, Congress could "limit" copyright duration to the lifetime of the Universe, and it would still conform to the letter of the Constitution (Yerrick), whereas money from Hollywood lobbyists ensures that Congress never considers the spirit of the Constitution.
The Digital Millennium Copyright Act (17 USC 1201), also passed in October 1998 by voice vote during the Monica Lewinsky scandal, made circumventing copy protection a crime. Creating, distributing, importing, or using a device that circumvents can land you in federal prison whether or not the result of such circumvention would be a copyright infringement (Gilmore).
Laws such as the Bono Act and the DMCA are not created by the public in public but are created and enacted "under the table," so to speak, with money contributed by Hollywood lobbyists. Is creating public policy without the public's knowledge and consent compatible with "a republican form of government" (U.S. Const.)? It smells more like "taxation without representation" to me.
Driven Off the Market
The copy protection policies of newer audio and video recording devices are often not disclosed to you until long after the sale. For example, Sony's MiniDiscTM portable digital audio recorders and other secure digital music (SDMI) devices can receive digital data but not reproduce it, assuming that the user is copying something to which (s)he has no rights, even if the user is a musician and is copying his/her own material (Gilmore). New VCRs are required to have automatic gain control technology that degrades materials copied from one VCR to another (17 USC 1201 (k)). All digital television transmissions are encrypted, and the standard allows content distributors to prohibit time- and space-shifting of the content. Intel has developed technologies that exist solely to spy on you and report to content distributors whether or not you are copying protected data. Heck, even the cable to your computer monitor is protected; devices can detect tampering and will add snow, ghosts, and distortion to the signal if it is tampered with (Gilmore).
The proliferation of digital recording devices with enforced copy-protection policy wouldn't be such a problem if they weren't driving non-protected equipment completely off the market. For instance, a company called Streambox developed and published a product that allowed capture and recording of RealMedia streams; RealNetworks, the owner of the RealMedia format, sued Streambox under the DMCA and had the product pulled from the market (Gilmore). Also, the United States Federal Communications Commission has required that all frequencies used for analog television broadcast be returned to the FCC by January 1, 2006; after that date, our current nonprotected analog VCRs and TiVo-style devices will be worthless for letting us control what we watch. This can influence political campaigns, as the "equal time" guaranteed by election laws to candidates can be allotted during a time when most viewers would be either working or sleeping, not letting them view the candidate's campaign materials.
What this amounts to is that even though you have the right to time-shift content (a right granted by the Supreme Court's decision in the Betamax case), there is no way to exercise those rights without paying off the content producers, who will most likely institute a "pay per use" model (Gilmore) in which the studio gets paid ridiculous royalties every time a recording is copied on a protected device. This will put you at the mercy of the studios: you will either watch what Hollywood wants you to watch when Hollywood wants you to watch it, or do without. And you don't get to use material from the work (e.g. stills from a DVD) in a critical analysis of a work; where is the concept of "free speech" in this?
Silencing Critics and Creating Monopolies
The DMCA prohibits you from analyzing copy protection systems for weaknesses and releasing your findings, as such publication would be considered distribution of a device to circumvent access control. For example, a mathematics professor at Princeton University analyzed SDMI, a method of signing and watermarking audio, in detail. When he tried to publish methods of defeating SDMI, Princeton's attorneys advised him that such publication would most likely be a DMCA violation (Gilmore). The rights granted by the DMCA are also potentially not subject to the "fair use" limitation in copyright law, which states that "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research, is not an infringement of copyright" (17 USC 107), meaning that teachers can no longer use protected content in course material and that motion picture studios have the right to suppress negative reviews of DVD releases. How does silencing scientific and artistic discourse "promote the progress of science and useful arts"?
The DMCA also prevents you from creating systems that interoperate with protected devices. DeCSS is a program that decrypts the data on DVDs; it is designed to be part of a software DVD player created to compete with the players produced by large corporations. It was struck down by the Motion Picture Association of America, claiming that "it's a tool for piracy" in that it can also be used to translate the encrypted MPEG-2 data into a more efficient MPEG-4 format that can be distributed more easily across the Internet. Well, Jack, tools don't infringe copyright; people infringe copyright. Firearms can be used to kill people, but they are intended to be used for hunting wild game. Likewise, DeCSS can be used to infringe copyright, but it's intended to be used for playing DVDs on open systems such as BSD and GNU/Linux. But that doesn't matter, as a DVD's encryption is "an access control mechanism" under the DMCA and therefore a monopoly protection mechanism for the MPAA and DVD player manufacturers. Unregulated monopolies have been shown many times to be a Bad Thing for consumers.
Even though the DMCA appears to make exceptions for fair use, encryption research, and reverse engineering for interoperability, it sets no hard guidelines, and Hollywood can easily buy a favorable venue for a less-than-fair trial. In one high-profile case, the MPAA managed to score a former Hollywood lawyer as a judge. Even then, the United States court system seems to favor big corporations with money to buy stronger attorneys over individuals and small businesses with less of a legal budget; many corporations have a tactic of prolonging a trial until the defendant runs out of money. It's become so bad that Pigdog Journal has posted a decoy DeCSS program written in the Perl language that, instead of decrypting the CSS encryption on DVDs, removes CSS stylesheet code (an unrelated technology) from HTML documents just to keep the DVD people on their toes (Mr.Bad).
If personal copying of audiovisual material is restricted, what's the next target? Libraries. Publishers want to restrict free lending of electronic books and journals (Weeks). This "slippery slope" could eventually lead to making reading somebody else's books a crime, as described in Richard Stallman's dystopian short story "The Right To Read" in which a student is afraid to let another student use his computer for fear that she might read his books.
Copy protection takes freedom out of our hands. By increasing the copyright industry's right to control, it dilutes our right to publish. Write your representatives and senators and ask them to repeal the Digital Millennium Copyright Act. (Contact information is available at http://www.house.gov and http://www.senate.gov.) Release your own content under a license that preserves consumer freedom. Be a scofflaw; juries don't have to convict if the law in question is not constitutional. Vote with your pocketbook; don't buy technologies that enforce copy protection. Do without if you have to.
All web pages were accessed between February 1 and 14, 2001. If a page is no longer available, it may still be in Google's cache; to see it, insert the text www.google.com/search?q=cache:
after the http:// in each URI.
- Gilmore, John. "What's Wrong With Copy Protection." http://www.toad.com/gnu/whatswrong.html
- Mr.Bad. "DeCSS Distribution Center." Pigdog Journal. http://pigdog.org/decss/
- Seltzer, Wendy. "Openlaw: Eldred v. Reno". http://eon.law.harvard.edu/openlaw/eldredvreno/
- Stallman, Richard. "The Right To Read." GNU Project. http://www.gnu.org/philosophy/right-to-read.html
- United States Ninth District Court. Eldred v. Reno. http://cyber.law.harvard.edu/eldredvreno/opinion.html
- Weeks, Linton. "Pat Schroeder's New Chapter." Washington Post.com. http://washingtonpost.com/wp-dyn/articles/A36584-2001Feb7.html
- Yerrick, Damian. "The Sonny Bono Copyright Term Extension Act and Perpetual Copyright." http://pineight.8m.com/bono.htm
Copyright © 2001 Damian Yerrick. Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections or Cover Texts. A copy of the license is available here.