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2. Copy Protection

2.1 You're joking, right? Of course I can make a copy of a CD or record a TV show!

Unfortunately, those activities are no longer legal. Or to be more specific, such activities are illegal unless the content provider gives you permission. For example, the record company might say that making a copy of CD is illegal, but they may offer to provide you with low-quality digital tracks that can only be played on a single computer. (That is the approach taken by some existing copy-protected CDs.) The important point is that rights that used to be unconditional are now only granted to us at the content provider's discretion.

http://mp3.about.com/library/weekly/aa090301.htm
"The record labels have a legitimate fear, and the intellectual property rights of artists need to be protected. The problem is that the new technology takes away what had once been regarded as a fundamental right of consumers to make copies of their own music."

2.2 But how can they stop me from copying a CD?

One of the critical pieces of the new copyright legislation is something called "anti-circumvention". In the language of copyright law, "circumvention" refers to the act of foiling any copy protection that a CD or e-book might have. What's shocking about the new copyright laws is the fact that they make it illegal to distribute any technology that might be used for circumvention, even if that technology could also be used to exercise your legal rights!

For example, you have the legal right to possess a copy of a song in order to play it in your car stereo; but if your CD is copy-protected, it is a crime to circumvent the copy-protection in order to make the copy. So your right to possess the copy is useless because you have no way to exercise it. Anti-circumvention trumps your fair use rights.

By making circumvention technologies illegal even when they have legitimate uses, the new copyright laws place us at the mercy of the content companies. Even if we have a theoretical right to make a copy of a TV show, we have to circumvent copy protection in order to exercise that right. The circumvention is illegal even though we're performing the circumvention for legal purposes! This loophole gives the content industries unprecedented power over how citizens use information, and it dramatically alters the balance that our laws used to preserve.

http://www.nytimes.com/2001/08/13/technology/ebusiness/13NECO.html
"The law also makes it illegal for individuals to use such a program -- even to make a back-up copy of a book or movie or song for themselves, the type of copies traditionally allowed under copyright law. That is where the double bind comes in. Actually making such copies for personal use is not illegal. But it is against the law to break through the copy-protection measure to make the legal copies."

http://www.foreignpolicy.com/issue_novdec_2001/lessig.html
"A copyright protection technology is just code that controls access to copyrighted material. But that code can restrict access more effectively (and certainly less subtly) than copyright law does. Often the desire to crack protection systems is nothing more than a desire to exercise what is sometimes called a fair-use right over the copyrighted material. Yet the DMCA bans that technology, regardless of its ultimate effect."

2.3 Can't I always make analog recordings?

You can today, but you may not be able to if the entertainment industry has its way.

Digital copy protection works only on digital content, so today it is possible to convert digital content into analog form, thereby evading copy controls (for both legal and illegal purposes). But a stated goal of the MPAA is to convince Congress to require all media devices to include "watermarking" technology. This technology would be able to detect copyright information even if a song or movie has been converted from digital to analog and back again. A device with watermarking support could therefore prevent all forms of copying, even simply putting a microphone in front of your speaker!

http://www.mpaa.org/jack/2002/2002_02_28a.htm
"The second goal outlined by Valenti is to plug the so-called 'analog hole.'"

http://www.pcworld.com/news/article/0,aid,97464,00.asp
"Currently, analog outputs from PC speakers, for example, can be easily recorded because analog data cannot be tracked. Parsons described a watermark encryption system, essentially an identifying 'marking' system, intended to safeguard against such forms of piracy."

2.4 Don't we need these "anti-circumvention" laws to protect creative works?

No. Even before circumvention technologies were outlawed, it was still illegal to steal music or movies. Many legal scholars believe that the DMCA goes too far in attempting to prevent theft.

For example, Napster would have still been shut down even if circumvention technology was legal. (Ironically, Napster used the DMCA in its defense -- the very same copyright law that criminalizes anti-circumvention!)

http://www.sims.berkeley.edu/~pam/papers/l&e%20reveng3.pdf
"[...] The DMCA rules are far more restrictive than is necessary to achieve the objectives Congress had in mind when it adopted the DMCA rules."

http://www.salon.com/tech/feature/2000/07/19/decss_trial/
"[T]he recording industry is suing the popular music-swapping service, Napster, in part under the older copyright theory of contributory infringement [...]"

http://www.salon.com/tech/feature/2000/05/09/napster_lawsuit/
"Napster had asked a federal judge to throw the case out -- insisting that the company's music-swapping actions were exempt from liability by the Digital Millennium Copyright Act (DMCA)."

2.5 But how do you prevent illegal copying if you allow circumvention technologies?

We could just as well ask how we prevent other crimes such as jaywalking, tax fraud, or even murder. Society prevents dangerous activities by passing laws that make such activities illegal and by punishing people who break the laws.

In contrast, the recent copyright legislation attempts to prevent dangerous activities by criminalizing all technologies that could possibly be used in a dangerous way. To see how strange this is, consider what would happen if we took a similar approach to preventing murder. Guns can be used to commit murder, so of course we would outlaw them. So can knives; no matter that there are plenty of legal uses for knives, it's the illegal ones that matter so we would have to ban them too. While we're at it, cars can be used to escape from the scene, so we should outlaw cars as well... You get the idea.

2.6 I don't see what legitimate uses circumvention technology could have. Isn't it just a tool for hackers who want to steal content?

Definitely not. There are many legitimate uses for circumvention technology. For example, law professor Lawrence Lessig notes that circumvention technology could be used to allow blind readers to extract the text from an electronic book so that the text can be read out loud. Other legitimate uses include moving a book from one place to another, listening to a song in your car stereo, or saving a television show to watch it later.

Circumvention is also critical for the pursuit of research. Scientists are unable to expose flaws in computer programs if copy protection prevents them from examining the computer code. And scientists cannot research encryption if the act of researching becomes a crime.

http://www.foreignpolicy.com/issue_novdec_2001/lessig.html
"Russian programmer Dimitry Sklyarov, for example, wrote code to crack Adobe's eBook technology in order to enable users to move eBooks from one machine to another and to give blind consumers the ability to 'read' out loud the books they purchased."

http://www.loc.gov/copyright/1201/comments/171.pdf
"The draconian criminal measures imposed for violation of section 1201 [of the DMCA] will deter individuals from conducting bona fide forms of science and technology research that is fundamental to innovation."

http://www.sims.berkeley.edu/~pam/papers.html
"Virtually all computer scientists, as well as many other scientists with some programming skills, find it necessary on occasion to reverse engineer computer programs."

2.7 So what can we do about this problem?

We are proposing a Consumer Technology Bill of Rights for digital content. This bill is a positive assertion of the rights of citizens to use content that they have legally acquired. Our Bill of Rights will not make it any easier for criminals to steal digital media. It will not deprive artists of the rights to their works. It will simply restore the rights that we citizens used to have before the passage of the DMCA.

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