Final joint version of H.R. 2281,

DMCA (Digital Millenium Copyright Act), Oct. 20, 1998

Signed into law Oct. 28, 1998 as Public Law 105-304

--H.R.2281--

H.R.2281

One Hundred Fifth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday, the twenty-seventh day of January, one thousand nine hundred and ninety-eight

An Act

To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Digital Millennium Copyright Act'.

SEC. 2. TABLE OF CONTENTS.

    Sec. 1. Short title.

    Sec. 2. Table of contents.

TITLE I--WIPO TREATIES IMPLEMENTATION

    Sec. 101. Short title.

    Sec. 102. Technical amendments.

    Sec. 103. Copyright protection systems and copyright management information.

    Sec. 104. Evaluation of impact of copyright law and amendments on electronic commerce and technological development.

    Sec. 105. Effective date.

TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

    Sec. 201. Short title.

    Sec. 202. Limitations on liability for copyright infringement.

    Sec. 203. Effective date.

TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

    Sec. 301. Short title.

    Sec. 302. Limitations on exclusive rights; computer programs.

TITLE IV--MISCELLANEOUS PROVISIONS

    Sec. 401. Provisions Relating to the Commissioner of Patents and Trademarks and the Register of Copyrights.

    Sec. 402. Ephemeral recordings.

    Sec. 403. Limitations on exclusive rights; distance education.

    Sec. 404. Exemption for libraries and archives.

    Sec. 405. Scope of exclusive rights in sound recordings; ephemeral recordings.

    Sec. 406. Assumption of contractual obligations related to transfers of rights in motion pictures.

    Sec. 407. Effective date.

TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS

    Sec. 501. Short title.

    Sec. 502. Protection of certain original designs.

    Sec. 503. Conforming amendments.

    Sec. 504. Joint study of the effect of this title.

    Sec. 505. Effective date.

Digital Millennium Copyright Act of 1998: a U.S. federal law that many large software firms strongly backed. Among the DMCA's provisions is a major transformation in copyright law, one amounting to, in effect, a monstrous and constitutionally unsupportable denial of due process. In brief, the DMCA enables any person who purports to be the owner of copyrighted material to demand its removal from the Internet, without having to go to a judge to obtain an injunction. All that is necessary is a formal notification demanding that the ISP remove the offending page. The Act also states that, if the ISP fails to remove the page, the ISP then automatically becomes a co-infringer. The Act further spells out that, should the accused infringer believe the material is not subject to the claimed copyright, the infringer can put it back on the site after a 15-day hiatus--which is, of course, tantamount to an invitation to a lawsuit.

What's so bad about the DMCA? For starters, it constitutes a wholesale reversal of fundamental tenets of due process in U.S. law. Before the DMCA, copyright holders had to go to a judge to obtain an injunction before they could force the removal or suppression of copyrighted material. With the DMCA, that's no longer necessary. All it takes is a certified letter to an ISP, which is then faced with the following choice: either remove the material, or you become a co-infringer. Under such circumstances, ISPs will of course remove the material, even if they believe it does not infringe on anyone's copyright; who would want to take such a risk? In short, the DMCA represents a radical, subversive and unconstitutional denial of the most fundamental provision of U.S. jurisprudence, a tradition dating all the way back to the Magna Carta: that a person is presumed innocent until proven guilty.

During the Congressional debate prior to the DMCA's passage, a host of civil libertarians, legal scholars, librarians and free-speech advocates warned their money-besotted "representatives" that the proposed legislation would quickly become a weapon against the expression of views which corporations found displeasing.

The US Copyright Office provides a helpful summary of the DMCA. It is especially helpful in explaining DMCA Title I's impact on copyright law. It is available at http://lcweb.loc.gov/copyright/legislation/dmca.pdf.

I wrote the following as a persuasive essay for English class. It is meant to familiarize the reader to fair use laws, and some of the effects of the DMCA. I personally am a long time music pirate, user of DeCSS, and supporter of Dimitry Sklyarov; so this essay is probably not terribly objective.
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Why The DMCA Should Is Taking Away Our Liberties

Fair use is defined by Section 107 of Title 17 of the US Copyright Act, and is lain out as the following:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors ("Title 17").

It is imperative that this clause be understood in full by the entirety of the US judicial system and legislature, because fair use is, in its purist form, is an extension of the inalienable first amendment right that we as a country value. However, in more recent history, there has come into existence a new form of mass media, the Internet, where one can copy complete documents, works of art, and music, in a matter of seconds. To counteract this growing egalitarian spread of ideas, the US legislature has created a new bill, borne of soft money contributions and corporate lobbyers in Washington to deprive US citizens of their essential right of fair use. This bill is called the Digital Millennium Copyright Act (DMCA), which restricts the rights of any user of information that has a digital aspect to it. The DMCA strips away the liberties granted by free speech, and must be reformed.

October 1, N'Sync released a CD containing a new form of copyright enforcement. Essentially, the CD will play nothing by garbage on a computer, but is supposed to play normally on an ordinary CD player. This CD has been released in America, released with a modified system in Germany, and unprotected in the United Kingdom (Fox). This technology has been in existence since last year, following the Napster trials. Back then, copyright protection had become a very big deal, despite record sales being up last year at the hay-day of Napster (Boehlert). A simple study of the numbers shows a very alarming trend in the sales of the Recording Industry Association of America (RIAA):

Just look at how many copies, combined, the top 10 sellers this year have sold: 22 million. Now compare that with the same combined sales for last year's biggest 10 hits through July: 36 million (Boehlert).

Napster, while not completely shut down, is very heavily regulated by the RIAA, and currently has plans to shift from the free sharing of music on the internet to a commercial system the RIAA could approve of; the RIAA currently has power over Napster via Section 502 of the DMCA. Most would say that since then Napster has been waning; simultaneously, record sales have been on the decline. Despite the obvious profits the online music community of Napster has yielded, the RIAA continues to push providers to focus on copyright protection. How can the RIAA do this, one might ask? Does it not go against fair use if copying is somehow disabled? The answer is yes, copyright protection most certainly flies the face of the Section 107 of Title 17 of the US Copyright Act. However, the DMCA amends the part about reproductions of in written copies and phonographs. One can easily see that without those identifications, the clause "fair use" is pointless. What is fair use if the means by which copies may be legitimately made are rendered unknown? Fair use, according to the DMCA, is no longer a right Americans can rely on. Not only that, but record companies have historically used fair use to justify price fixing (Dansby), which is in of itself a ludicrous proposal given that the right, albeit modified, is still guaranteed to all citizens of the US by the US Copyright Act. This price hike has no possible justification if there are no means of which to utilize fair use. However, since October 1, US consumers are going to see, thanks to legislation such as the DMCA, a lapse in liberties which have been always been characteristic of the first amendment of the constitution of which this nation was founded. The DMCA is the rotten core of the RIAA's misdeeds, and must be repealed.

Not only can the DMCA strip consumers of their rights to fair use, those who legally reverse engineer the protection technology so as to allow such CDs to be played on a computer would find themselves also in violation of the DMCA, but not because of copying copyright information, but decrypting and reproducing a copyrighted algorithm. The DMCA has this expressly to say on the topic of "Reverse Engineering":

REVERSE ENGINEERING- (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

Now, the entire difficulty of this clause, despite the DMCA going on further to make more elaborate destinctions of what is legal reverse engineering, is the entire idea that reverse engineering of things like encryption of CD algorithms may in fact constitute copyright fraud. Currently this debate is raging over the issue of DVD decryption, in a court case "DeCSS vs. The Motion Picture Association of America (MPAA)". CSS stands for "Content Scrambling System", an encryption which the Motion Picture Association of America has a legal copyright over. Or is it patent? The lines aren't clear; classically, algorithms and equations have not been patentable. The program DeCSS converts the CSS encrypted Data on a DVD to an mpeg (an easily readable media format). It utilizes an algorithm that 16 year old Norwegian Jon Johanson and his friends reversed engineered in 1999. Not only did they reverse engineer the system, but provided code for it's decryption, pushing the intricacies of the copyrighted algorithm into public knowledge. Soon after, the MPAA began to send cease and desist letters to owners of websites who had published data on the DeCSS program code. Jon Johanson was detained January 24, 2000 and questioned by Norwegian authorities for 7 hours regarding his knowledge of the DeCSS code and individuals involved; but thankfully, he has not in fact had any charges brought against him. Currently, the MPAA has filed suit again 72 individuals and websites claiming misappropraition of trade secrets (Openlaw). One such suit was against a t-shirt company, Copyleft, which had produced a shirt with the code contained on it's reverse. However, on August 8, 2000, Superior Court Judge William J. Elfin found that the company was well within the first amendment to post such information on a t-shirt (Manjoo). The very fact that the t-shirt could have ever been brought to court proves the one, fatal flaw in the DMCA. The very idea that the DMCA could strip away the right to free speech of any individual who may post such knowledge of the MPAA's algorithm regardless of context is ludicrous. On one site the DeCSS algorithm was even converted into a prime number, and again the MPAA has taken suit against the perpetrator (Carmody). The idea that something as abstract as a mathematical concept could be illegal damages yet another principle of US copyright law, that logic can't be copyrighted. But now, according to the DMCA even numbers can be copyrighted. Where does the law draw the distinction between logic and trade secrets? The line is not so clear. It would not be an issue, however, if the DMCA was simply repealed.

Supporters of the DMCA have often pointed out that it is their right to bring these suits and to protect their frivolous copyrights. This may be true in America; however, the DMCA doesn't apply to any country other then America, despite a clause much like the DMCA poised to being (or already been) passed by the European Union, Australia, Canada, Mexico, and Japan. In any case, it should not grant American companies the right to force their copyrights on the international community. However, now it seems they can. On July 17, in Los Vegas, Nevada 26 year old Russian Dmitry Sklyarov was detained by authorities according to a Department of Justice complaint by Adobe Systems. Dmitry Sklyarov had been attending an seminar in the United states discussing techniques he had used to create a program for Adobe's e-book. The program allowed the e-book to do a few things, foremost among them to translate encrypted documents into braille for suitable use by the blind. However, his cause has not gone unheard. Since his arrest thousands of people have taken to protesting Dmitry's capture. Only after he was released on August 6, did Dmitry realize the breadth of his support (Taylor). "I was really surprised and impressed," said Dmitri "by the scale of the action and the number of people involved in the protests. I'm not an IT superman. I'm just a programmer, like many others. It was unexpected by me that so many people would support a guy from another country that nobody heard about before (Sklyarov)." By their actions, it is obvious that the DMCA is in no way representative of the sentiment of the American people. It is unrepresentative of American philosophy, and as morally reprehensible as the slavery and redbaiting laws which have plagued American legislation in the past. It must be ended, but there is fear that it will go on.

There is a need for their to be copyright laws in America. People need to be assured that someone can not go and publish their private work without their consent, or make money off of something that isn't theirs. But the disruption of fair use, the copyright of logic, and the forcefull capture of foreigners are simply unacceptable consequences of copyright law. The DMCA may contain within it some valid statements, but in the overall picture the DMCA grants companies little security in exchange for the citizens essential freedom. And a country that would give up either, deserves neither freedom nor security.

Boehlert, Eric. "What's Wrong With the Music Biz?". July 19, 2001. October 4, 2001. <http://www.salon.com/ent/music/feature/2001/07/19/industry_downturn/>

Carmody, Phil. "The world's first illegal prime number?". Sept 14, 2001. October 4, 2001. <http://www.asdf.org/~fatphil/maths/illegal1.html>

Dansby, Andrew. "U.S. States Sue Labels Over Price Fixing". August 10, 2000. October 4, 2001. <http://www.rollingstone.com/news/newsarticle.asp?afl=&nid=11469>

Fox, Barry. "N'Sync CD is copy protection 'experiment'". October 1, 2001. October 4, 2001. <http://www.newscientist.com/news/news.jsp?id=ns99991367>

Manjoo, Farhad. "Court To Address DeCSS T-Shirt". August 2, 2000. October 4, 2001. <http://www.wired.com/news/technology/0,1282,37941,00.html>

Openlaw DVD/DeCSS FAQ Team. "The Openlaw DVD/DeCSS Forum Frequently Asked Questions (FAQ)". May 3, 2000. October 3, 2001. <http://eon.law.harvard.edu/openlaw/DVD/dvd-discuss-faq.html>

Sklyarov, Dmitry. "Statement from Dmitry Sklyarov". August 17, 2001. October 3, 2001. <http://www.freesklyarov.org/local/0817dmitrystatement.html>

Taylor, Phillip. "Cryptographer's arrest sparks fresh debate about copyright laws". October 2, 2001. <http://www.freedomforum.org/templates/document.asp?documentID=14535/>

The Digital Millennium Copyright Act. August 4, 1998. October 4, 2001 <http://www.cmcnyls.edu/USLAWS/hr2281eh.htm>

Title 17, Section 107 (US Copyright Bill). Unknown date of publication. October 4, 2001 <http://www4.law.cornell.edu/uscode/17/107.html>

The following paper was written for one of my Legal Studies courses at UMass Amherst. It talks a little about how U.S. copyright evolved to where it is today, and about what has happened as a result.

Abstract:

Copyright in the United States was originally created ``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.'' (1) It was supposed to be a bargain between authors of works and the public: in return for making their works available for the public good, the authors would receive monetary compensation and certain exclusive rights. In this way, previous efforts could be built on by others, and authors would be encouraged to keep producing new works with the promise of compensation. Unfortunately, because of the ways in which copyright law has been legislated, the bargain has now shifted almost completely to the side of the authors. The current notion of copyright is that the author of a work has complete control over any and all uses of that work, including copying, reading, viewing, listening, and broadcasting. Under this new code, the owner of a book no longer has the right to do with it as he pleases. He can't resell it, or loan it to a friend. He can't even think about the way a certain chapter or character might have been rewritten, because that would be creating a ``derivative work'' in his mind. Just to read the book, he needs an explicit license granting him permission to read it on a pay-per-view basis. This sounds completely insane, and I'm sure all of you reading this are probably laughing at this crazy story I've made up. Unfortunately, I didn't make it up. It's called the Digital Millennium Copyright Act, and it's quite real. For this paper I wanted to figure out how copyright got to be so twisted and try to come up with some ideas of how to fight the problem.

1. Creating the DMCA

1.1 Copyright Origins

It turns out that copyright law has never really been drafted by our legislature. Copyright was originally granted by the Constitution, for the explicit purpose of furthering the arts and sciences, as I mentioned above. And back then, the word ``copyright'' actually made sense. The idea was that to get an author or scientist to publish her work, she would need to be guaranteed some means of making a profit. Since printing presses were hard to come by, physical copies of books were a valuable commodity. Thus, authors were given the exclusive privilege of making and distributing copies of their works. It wasn't Joe Sixpack they were worried about, because he had no access to a printing press and thus no means of making copies; rather, authors worried that other authors or publishers might start making copies of their works and stealing some of the profit. This was perfectly logical, and it worked well for that time period.

Unfortunately, as new media became prevalent, such as radio, phonographs and television, the old meaning of copyright didn't quite apply anymore. Rather than try to come up with a solution itself, Congress threw the individual ``stakeholders,'' authors and publishers who had vested interests in copyright, into a room and said ``Don't come out until you've made a deal you can all live with.'' While Congress must have loved this method of lawmaking, it poses some serious problems. For one, the only people that would benefit from the resulting law are those who were actually present during the negotiations. Each stakeholder in the negotiations carves out very narrow exceptions in the broader statute that are purely self-serving. The final result is a law that is drafted purely with current industries (and even then, only those that are invited to the negotiating table) in mind. Any industry that does not exist yet will have serious barriers to overcome when it finally does emerge. We should also consider that the critical question has been changed: it is no longer ``Is this a good law?'' but ``Is this a law that current stakeholders can live with?'' The consequences are disastrous. (2)

1.2 Evolution of Copyright

As expected, laws created by quarreling industries did not last long. Repeatedly as new industries emerged, negotiations had to begin all over again to accommodate them. Of course, the old industries refused to agree to anything that would take existing power away from them or grant new power to others, so the process grew more and more difficult as time went on. Most troubling is the fact that one group of stakeholders has never been represented at all: the American public. In the 1800's, this was not a problem. Everyday citizens were in no position to make copies or distribute them, so copyright didn't matter much to them. This is simply not the case today. With a VCR, anyone can make a copy of a TV broadcast or movie. The television and motion picture industries aren't too happy about that, and Sony was sued by Universal Studios, et al in 1976 over the Betamax VCR. Luckily for us, the U.S. Supreme Court ruled that individual consumers do have the right to record TV shows, copy CDs and audio tapes, and lend them to their friends. (3) Furthermore, the Audio Home Recording Act of 1992 states that individuals may legally create copies of music for non-commercial purposes. (4) However, the content industries never quite got over that loss, and as technology has progressed they have fought consumer rights tooth-and-nail. With the advent of the digital age, suddenly every citizen has become a publisher. Anyone can write a book and have it posted on the Internet in minutes. New artists can distribute their music over Napster (which is now pretty much defunct, but it is well-known so I will use it as an example) or MP3.com and be heard by audiences around the world. At the same time, people can make copies of their CDs and upload them to Napster, or make copies of DVD movies and upload them to eDonkey or any number of other filesharing networks. Since copying has suddenly become so easy and commonplace, the content industries are terrified.

Let's take a look at the situation today. Music and movie sharing have become rampant. The RIAA (recording industry) and MPAA (movie industry) want desperately to find some way to stop it. Unfortunately, the way they have gone about it has been less than ideal. The Digital Millennium Copyright Act, or DMCA, is the result of their efforts, and has some nasty consequences. It has already been established that citizens do have some ``fair use'' rights. For example, they can record TV shows, quote books, and copy CDs to cassettes for listening on the road. The content industries have come up with an ingenious solution to get around the pesky problem of citizens' rights. All they have to do is implement some sort of copy protection onto CDs, DVDs, VCRs, TVs, and electronic books that prevents anyone from reading, viewing or listening to them without some sort of authentication. Under this plan, theoretically, every time you listen to a CD, play a tape in a VCR or watch a DVD you would have to be ``licensed'' to do so. Perhaps you would need a decryption key, or your credit card number. Perhaps you would have to pay 5 USD per viewing. In fact, this scheme has already been executed. In the early days of DVD, Circuit City tried to push the Divx format, which was essentially a DVD with an expiration date. Anyone who bought a Divx disc could watch the movie once, and then the disc would become unusable, unless the buyer paid a fee to ``recharge'' it. Consumers balked, and the format was quickly retired because of the abysmal sales of Divx players and discs.

2. Copyright in the Digital Millennium

2.1 The DVD Industry

2.1.1 The Content Scrambling System (CSS)

Divx was doomed to fail. People simply could not swallow the concept of not having the right to view a movie they had paid for. Its death may have seemed like a victory for consumers, but DivX's true flaw was that it's access control was so obvious. More subtly, all major-label DVDs also have an access control mechanism. It's called CSS, the Content Scrambling System. It has nothing to do with copy protection and everything to do with *viewing* protection. Just as with Divx, you actually need to be authorized to view a DVD you own. Most people have never realized this, because the DVD players they own automatically authorize them to view the discs. Anyone who wants to manufacture a DVD player has to obtain a license from the MPAA for a CSS decryption key. This makes it difficult for anyone to enter the industry, because the costs of licensing are prohibitively high, and it also prevents certain people from even being able to play their own legally purchased DVDs. The prime example of this is the Linux operating system. An operating system is the software that all other software runs on; Windows and MacOS are both operating systems. Linux is a free operating system developed by people in their free time who like giving back to the community. Because Linux isn't the behemoth that Microsoft Windows is, no company has decided to get a license to create DVD playing software for it. And no Linux developer could possibly write one, because no Linux developer would be able to afford the CSS license. The result of all this is that anyone who uses Linux cannot view DVDs that they have purchased, simply because they don't have the ``viewing rights'' to do so. Keep in mind, CSS does not prevent the copying of DVDs. Any professional pirate will have equipment that can copy DVD discs on a grand scale. The sole purposes of CSS are to allow the DVD Content Control Authority (DVDCCA) to decide who gets to build DVD players, and who gets to watch DVDs that they have purchased.

2.1.2 DeCSS

In late 1999, an enterprising 15-year old Norwegian named Jon Johansen figured out how to bypass CSS protection on DVDs. The result, a free program called DeCSS, decrypts a CSS-encoded DVD and allows any software to use that decrypted video stream to play the movie. With DeCSS, anyone could write a DVD playing program, for any operating system. (5)

Once DeCSS was spread through the Internet, people immediately began building software to play DVDs in Linux. According to common sense, using DeCSS is not a crime, because people have the right to watch movies that they have paid for. Unfortunately, modern copyright law has little to do with common sense; this is where the ingenious part of the DMCA comes in. According to our new law, it is now a crime to bypass any method of copy-control or access-control for any reason. Period. (6) Even if breaking the protection leads to a non-infringing use (as in viewing a legally owned DVD), it is still deemed illegal by this act. The DVD Content Control Authority, with fresh egg on their faces (for reasons that will be made clear), outraged that someone would dare to play a DVD that they had paid for, filed charges against dozens of defendants for distributing DeCSS across the Internet and elsewhere, and sued 2600 Magazine for simply posting a hyperlink to the program.

Let's take a look at the first DeCSS case. On December 27, 1999, DVDCCA filed the aformentioned charges claiming misappropriation of trade secrets. It moved for a temporary restraining order and preliminary injunction against the defendants, which set a preliminary injunction hearing in motion. At that hearing, DVDCCA presented no evidence that any movie copied with DeCSS had been sold or distributed. It presented no evidence of any financial harm to it or its licensees due to republication of DeCSS. It presented no evidence that restraining the defendants from distributing DeCSS would stop millions of people all over the Internet from continuing to distribute it. It did not even identify which parts of CSS were trade secrets. Only one of the many defendants, Andrew Bunner, showed up to contest the motions. He argued that he had merely distributed information he had discovered in the public domain (the DeCSS source code), and further that there were no trade secrets at all, no evidence of misappropriation by him or anyone else, and that the First Amendment protected his free speech. The trial court swiftly ruled against Bunner and the other defendants, barring them from disclosing any information related to CSS and DeCSS. The 6th Circuit U.S. Court of Appeals reversed the injunction on the grounds that DeCSS was protected speech under the First Amendment, even if it did contain trade secrets. As this paper is being written, the case has just moved on to the California Supreme Court. (7)

Universal City Studios filed a similar complaint against 2600 Magazine for linking to the DeCSS program. Let us be clear what ``linking'' means. When a user visits a website, such as www.umass.edu, she will be presented with text and images, some of which can be used to jump to other web pages. For example, there might be a menu of options such as ``Student Information,'' ``Faculty Information,'' and so on. Each option is a hyperlink, and clicking on the link sends the user off to another page. It is possible, and common, to hyperlink to a webpage that is not owned by the person who creates the hyperlink. For example, the website www.slashdot.org is a news site that does not generally have its own articles. Each ``story'' on Slashdot is usually just a hyperlink to some other news site, such as CNN.com or MSNBC.com. Slashdot has no control over the contents of those other sites; it is merely pointing the user in their direction. In the 2600 case, Judge Kaplan ruled that hyperlinking to a website that has the DeCSS program is illegal, provided that ``those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.'' Astoundingly, the 2nd Circuit U.S. Court of Appeals upheld this unprecedented ruling. For the first time ever, not only is it illegal to distribute software that just might not be lawfully offered, it is illegal to even provide information on where to obtain it. What if, instead of a hyperlink, 2600 just distributed the URL for the DeCSS code, and people had to type in the address manually instead of clicking a link? Would that really be any different from a simple hyperlink? Judge Kaplan thinks so. He bases his entire decision on the so-called ``functional'' portion of a hyperlink that shields it from First Amendment protections. Because clicking on a link causes the computer to perform a function without further human intervention (that is, going to the destination web page), a link is not just free speech but a dangerous weapon. What if the New York Times posted a link to the DeCSS program? In the MPAA's own press releases, hyperlinks to 2600 Magazine were posted. If 2600 Magazine had hyperlinks to DeCSS, and the MPAA was hyperlinking to 2600 Magazine, then isn't the MPAA breaking the law as well?

In addition to its First Amendment challenge, 2600 also asserted that the DMCA violated fair use as guaranteed by the U.S. Constitution. The Court of Appeals flatly rejected this notion as well. The Court noted that although fair use is generally protected use, the Constitution does not guarantee that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. Further, the Court stated that no one is prevented from commenting on DVDs' content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. It's true; there is no statute that says people have the right to make fair use of a DVD in its original form. I propose that this should change.

2.2 "100% Burglar Proof"

Unfortunately, the DVDCCA's suit was not an isolated incident. Adobe, maker of the popular PDF document format, created a secure eBook reader. An eBook is simply a book designed to be read on a computer or PDA screen instead of a dead tree. What exactly is a ``secure'' eBook? To answer that question, let us examine the ROT13 algorithm. ROT13 is a simple method of coding a message that works by assigning first numbers to letters. A is represented by a 1, B by 2, C by 3, D by 4, and so on. The entire message is converted into numbers in this way, 13 is added to each number (modulo 26, meaning it wraps around back to 1), and the message is converted back into letters. So the word CAT would encode to 3-1-20 -> 16-14-7 -> PNG. Obviously, anyone familiar with the ROT13 algorithm could figure out what the original message was by simply performing the ROT13 algorithm again (remember, 13 is half of 26). So PNG decodes to 16-14-7 -> 3-1-20 -> CAT. ROT13 isn't considered a real encryption technique by anyone, because it is incredibly trivial to decrypt. The method of encryption used by Adobe's eBook reader was not exactly this mechanism, but it was equally simplistic and just as trivial to decode. Apparently using something as simple as ROT13 to encode an eBook makes it ``secure.'' The eBook protection software, known as ``E-Book Pro,'' sells for 197 USD and is advertised as ``100% burglar-proof.'' Dmitry Skylarov, a Russian teen employed by a company called Elcomsoft, visited the United States to give a lecture exposing such weak encryption schemes used by Adobe and others (one which actually used ROT13 itself!). He was subsequently arrested for violating the DMCA. It was clearly a scientific lecture, intended to allow people to read books, develop better software, and arguably to help the very parties that wanted him punished. Like the DVDCCA, Adobe had egg on its face for having such weak security when advertising it as 100% burglar-proof. In a saner world, any company that had licensed Adobe's software to protect its electronic books would have been outraged at Adobe and grateful to Skylarov for exposing the weakness.

3 Conclusions

By considering the facts of the Adobe and DVDCCA cases we can expose a major flaw in the logic of the DMCA. CSS was not difficult to crack. The security of ``E-Book Pro'' was laughably simple to break. To follow the wording of the DMCA to its logical conclusion, let's imagine that there is an access-control chip installed in all TVs that prevents viewing of non-MPAA approved channels. Let's also imagine that to allow the viewer to watch whatever he wants, all someone has to do is open a panel on the side of the TV and pull out the big red chip that has a ``DO NOT REMOVE ME'' sticker on it. The only tool necessary would be an ordinary screwdriver. Under the DMCA, the screwdriver is now illegal because it is a ``circumvention device.'' Even though the screwdriver has other non-infringing uses, anyone distributing the screwdriver, or plans to build a screwdriver, or information on where you might find a screwdriver, can be prosecuted. It's like banning spray paint because it might be used to create illegal grafitti. Clearly that idea is absurd, yet current U.S. copyright law does have these implications.

The problem here is that content owners have completely overstepped their bounds and have forgotten that copyright is supposed to be a bargain between authors and the public. Instead, copyright owners have complete control over every conceivable use of their works, and citizens have no rights to do what they want with property they own. If there is ever to be a good solution to this problem, Congress will need to take a long hard look at the statute and ask themselves, ``Is this a good law?'' The idea of letting mega-corporations and well-funded lobbyists write laws which directly affect each and every citizen of this country is a farce, and it's high time for a change. The copyright dilemma is not an easy one to resolve. We need to find some way to allow the public to have easy access to content while still providing the opportunity for authors to profit from it. As Jessica Litman points out, people will not follow a law that they feel is unjust, or a law that sounds so absurd that they don't believe it even exists. (8) Creating a reasonable set of rules should be the real goal of copyright, and the only way for it to be attained is for the people's elected officials, instead of megaconglomerates, to write the laws.

4 References

1. United States Constitution, Article I, Section 8.
2. Litman, Jessica. Digital Copyright. Prometheus Books. Amherst, New York. 2001. p. 30-31.
3. Balio, Tina. ``Betamax Case.'' The Museum of Broadcast Communications. Accessed May 23, 2002. http://www.mbcnet.org/ archives/etv/B/htmlB/ betamaxcase/betamaxcase.htm
4. ``Audio Home Recording Act of 1992.'' United States Public Law 102-563. 1992. Subchapter D, Section 1008.
5. ``Digital Millennium Copyright Act.'' United States Public Law 105-304. 1998. Section 103.
6. DeCSS Central. http://www.lemuria.org/DeCSS/ Accessed May 23, 2002.
7. Greene, David A. Brief submitted to California Supreme Court in DVDCCA v. McLaughlin, Bunner et al. May 22, 2002.
8. Litman, Jessica. Digital Copyright. Prometheus Books. Amherst, New York. 2001. p. 112.

A True and Illustrative DMCA Case Study

This is an actual exchange of messages illustrating how the Digital Millenium Copyright Act can affect individuals. I wasn't even aware of the California Prison Industry Authority (and they have a Marketing Branch???) until I inadvertently trod upon their collective ego. Note that this case may have been in violation of the DMCA since the offending web page was not automatically removed for 15 days as appears to be required. Missed in all of this was that the web page used to illustrate "ugliness" was doing so not in a design sense, but in a philosophical sense (i.e., slave labor and shoddy products produced by Amerikan prisoners). And, yes, I was called a liberian during this exchange.


Message sent From California Prison Industry Authority to Raleigh Muns on April 14, 2000

A couple years ago the California Prison Industry Authority took its first steps unto the internet. At the time we posted a temporary introductory page and a few related items. Your web site is currently using part of our former web page document in an offensive manner. We request that you remove this page from your web. The specific page is

www.umsl.edu/~muns/focus/ugly/pia.htm.
It appears that you have had this page on your site since 1997. About two years ago the California Prison Industry Authority completed its revised web site. This site has won a number of awards for its design and user friendliness. This is the image that we want presented to our customers and the public that we serve.

Please confirm when this page has been removed from your web site to galenbaker@pia.ca.gov. Your assistance in correcting this situation is appreciated.

Galen Baker, Assistant Chief
Marketing Services Branch
galenbaker@pia.ca.gov

Message sent From California Prison Industry Authority to Raleigh Muns on June 16, 2000

On April 14, 2000, I sent an e-mail message requesting that you remove references to the California Prison Industry Authority's former web page in your web page. A copy of this text is listed in italics at the end of this message. As of June 16, 2000, you have not responded or taken any action to remove the negative references.

You are using materials that are protected under copyright laws, including our logo and former web page, without permission. We request that you remove these negative and inappropriate references from your web pages.

Galen Baker, Assistant Chief
Marketing Services Branch
galenbaker@pia.ca.gov

Message sent From California Prison Industry Authority to DMCA Rep on June 16, 2000
(The DMCA requires ISP's -- i.e., a University in this case -- to designate a DMCA Representative.)

To: DMCA@umsystem.edu
From: GalenBaker@PIA.CA.GOV [mailto:GalenBaker@PIA.CA.GOV]
Subject: Copyright violation

In April, 2000, the California Prison Industry Authority became aware that your University was using a copy of a former web page as an example of an ugly web page. As you are aware, all materials published on the web are in fact copyrighted. I have ask the responsible Liberian [sic] to remove this reference but two months later it is still being displayed and I have not received any response. Could you look into the matter and end this improper and offensive use of our logo and former web page?

To assist you, I have attached the text of the e-mails sent to Mr. Muns. This also includes the specific reference to the web page that Mr. Muns has used without permission. If you would like to discuss this matter, I can be reached by e-mail at galenbaker@pia.ca.gov or you may contact me on the telephone at (916) 358-1764.

Your assistance and attention to this matter is appreciated.

Galen Baker, Assistant Chief
Marketing Services Branch
galenbaker@pia.ca.gov

Message sent From Les Sapp to Jerry Siegel on June 16, 2000
(Les Sapp was the University of Missouri's DMCA Representative; Jerry Siegel was UMSL's head of computing.)

From: Sapp, Les
Sent: Friday, June 16, 2000 5:01 PM
To: Siegel, Jerrold
Subject: FW: Copyright violation

Jerry,
Could you check into this complaint?

Thanks,
Les...

Message sent From Jerry Siegel to Raleigh Muns on June 17, 2000

From: Siegel, Jerrold
Sent: Saturday, June 17, 2000 9:31 AM
To: Muns, Raleigh C.
Cc: Sapp, Les
Subject: FW: Copyright violation

Raleigh,

What's the issue?
Jerry

Message sent from Raleigh Muns to Jerry Siegel and California Prison Industry Authority on June 19, 2001

Jerry, there is no problem here with the California Prison Industry Authority. When the Marketing division of the California Prison Authority can interfere with one humble Missouri librarian's limited time to perform their primary teaching duties, it makes me wonder what the future holds. This is an example of why many of us were against the Digital Millenium Copyright Act (DMCA) which opens the portals for such harassment.

The California Prison Industry Authority people have no grounds to request that I remove the page in question. When they initially contacted me I decided not to respond at all as I considered this not worthy of an expenditure of my time (which unfortunately is happening now). They are referring to the inclusion of a single web page that I used in a presentation as part of an instruction session on the Internet I did in 1997 to UM-St. Louis faculty and staff called

"World Wide Web: The Good, The Bad, and The Ugly."
Refer to:
http://www.umsl.edu/~muns/focus/
The document in question is listed under "The Ugly" at:
http://www.umsl.edu/~muns/focus/ugly/pia.htm
I consider the inclusion of this fully cited page as unambiguously under the guise of fair use and in the context of academic freedom and expect to be treated as befits my faculty status.

Please note the excerpt below my discussion of the specific points from 17 USC Sec. 107 which is the appropriate section of the United States Code addressing "fair use" of copyrighted materials.

Under factor 1 (purpose and character of use) my use was unambiguously for non-commercial and educational purposes.

Under factor 2 (nature of copyrighted work) I used a single publicly available document that millions of people were able to access at that time. This document was information promulgated by the PIA itself. It has no intrinsic value (as a photograph or work of fiction might) but was merely informational.

Under factor 3 (amount and substantiality) note that this is a single page of a much larger web site (the University of Californa itself practices the inclusion of single photographs of larger collections as part of fair use of a small portion of a large collection) hence I am utilizing only a small part of what is available (also, this is only one factor among several to be considered under the context of "fair use").

Under factor 4 (effect of use on potential market) I must note that the potential financial impact on the California Prison Industry Authority by my use of this web page for demonstration purposes in a teaching environment is unlikely to impact them financially.

I'm assuming they're contesting my use of their page under my label "The Ugly" which falls under my right to expression of critical opinion.

EXCERPT FROM 17 USC Sec. 107 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
END OF EXCERPT 17 USC 107

(Then there was silence . . .)

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