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- Are you opposed to copyright protection for digital works?
- Do you support illegal copying?
- So what’s the problem?
- Isn’t the whole point of copyright to protect the rights of authors?
- What are some examples of the balance that used to exist?
- What are some examples of this shift in the balance of copyright?
- You’re joking, right? Of course I can make a copy of a CD or record a TV show!
- But how can they stop me from copying a CD?
- Don’t we need these “anti-circumvention” laws to protect creative works?
- But how do you prevent illegal copying if you allow circumvention technologies?
- I don’t see what legitimate uses circumvention technology could have. Isn’t it just a tool for hackers who want to steal content?
- So what can we do about this problem?
- The DMCA, SSSCA, and CBDTPA
Definitely not! We believe that copyright is a crucial part of our information economy. It protects artists by making sure they receive compensation for their creations, and it benefits citizens by making sure that it is worthwhile to create new works.
Of course not! We believe that artists should have the right to control the distribution of their works.
The problem is that copyright protections have become too strong. For the past 200 years, legislation and court decisions preserved a careful balance between the need to protect the rights of creators and the need to protect the rights of citizens. Sometimes those rights come into conflict, for example when a reviewer wants to quote a passage from a novel or when a TV fan wants to record a show in order to watch it later. In the case of such conflicts, citizens were often given reasonable flexibility to use legally purchased content in a convenient manner.
However, that balance has been dramatically shifted by recent copyright laws. Today, citizens have practically no legal rights to use content that they own. We simply want to restore the fair and reasonable balance that served us for two centuries.
“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.”
Representative Rick Boucher: “The time, in my opinion, has come for the Congress to reaffirm the fair use doctrine and to bolster specific fair use rights which are now at risk.”
Protecting the rights of authors is one very important purpose of copyright. But copyright also has another purpose, arguably more important than the first. This second purpose is, according to the Constitution, “[t]o promote the Progress of Science and useful Arts.” Historically, the courts have kept those two purposes in balance, but that balance has recently shifted.
Justice Sandra Day O’Connor writing for the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340,349. “The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. […] This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”
Decades of legislation and court rulings built up a series of “fair use” rights for ordinary citizens. For example, the Audio Home Recording Act made it explicitly legal for people to make copies of music for noncommercial use. Similarly, in the Betamax case, the Supreme Court ruled that recording a TV show for later viewing was a legal, non-infringing use of the content. And the “first sale doctrine” made it legal to sell or loan copyrighted works that you legally purchased.
However, recent legislation has invalidated each one of those rights.
The Audio Home Recording act stated that citizens could not be held liable for infringement when the copied music for personal use.
A summary of the Betamax case. “The Supreme Court reversed the Appeals Court decision on January 17, 1984, supporting the District Courts notion that the alleged infringement fell under the idea of Fair Use.”
“It is of great concern if, as we see happening, new technology coupled with protections contained in the DMCA and trends in licensing lead to a regime in which all access to information is tightly gated. In a digital world, First Sale could lose its historic meaning and people, and the libraries that serve them, would effectively lose the protections the doctrine provides.”
There are many examples. It’s obviously legal to lend a physical book to a friend, but copyright restrictions on electronic books make such lending illegal. Making a copy of your own CD for personal use was legal in the past, but it is no longer legal if the CD has been copy-protected (and the record labels have announced their intent to copy-protect all future CDs). Recording a show to watch later used to be legal, but with new digital TV standards, such recording will only be legal if the TV station explicitly gives you permission (and broadcasters have already announced that they will not allow recording of “premium” shows). In certain cases, it can even be illegal to fast-forward through advertisements at the beginning of a DVD that you’ve purchased!
“DMCA proponents use the act to restrict your fair-use rights under copyright law: among them the right to read or view your own copy of the media, the right to sell a used book, lend it to a friend, or check it out of the library, and even the right to re-read a book without paying an additional fee. One of the earliest e-books was a textbook that expired and became unreadable at the semester’s end, so that the students would not be able to resell it at the college bookstore.”
“Israeli security company Midbar said Tuesday that it has released more than 10 million copy-protected CDs in the United States and Europe.”
“While the current proposal is limited, watermarking technology ultimately could wind up barring consumers from copying their favorite shows or movies off the air, as they are routinely able to do with VCRs or digital video recorders such as TiVo.”
“But now, Disney has crossed the line. Every DVD has an initialization track required by the spec that cannot be avoided. It plays automatically before the main menu appears. This track is usually used solely for the standard FBI anti-piracy message, and by some studios to run their animated logo. The DVD of Disney’s Tarzan uses this track to force the viewer to endure ads for the better part of five minutes before anything else is shown.”
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.
“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.”
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.
“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.”
“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.”
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!)
“[…] The DMCA rules are far more restrictive than is necessary to achieve the objectives Congress had in mind when it adopted the DMCA rules.”
“[T]he recording industry is suing the popular music-swapping service, Napster, in part under the older copyright theory of contributory infringement […]”
“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).”
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.
1.11 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.
“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.”
“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.”
“Virtually all computer scientists, as well as many other scientists with some programming skills, find it necessary on occasion to reverse engineer computer programs.”
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.
2. The DMCA, SSSCA, and CBDTPA
DMCA stands for “Digital Millennium Copyright Act”. The DMCA was passed in 1998. Passage of the DMCA was motivated in part by a perceived need to implement guidelines set by the World Intellectual Property Organization.
“The Act is designed to implement the treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva conference, but also contains additional provisions addressing related matters.”
The US Copyright Office’s summary of the DMCA.
The DMCA makes it a crime to circumvent copy protection, even if your purpose in circumvention is to exercise your legal rights. This means that those rights are effectively non-existent under the DMCA. See above for more detail: 1.7.
The “Security Systems Standards and Certification Act” (SSSCA) was a draft bill whose stated goal was “to provide for private sector development of workable security system standards and a certification protocol that could be implemented and enforced by Federal regulations.” However, the scope of the SSSCA was far greater than a simple standardization effort.
On March 21, a new version of the SSSCA was formally introduced to the Senate as the “Consumer Broadband and Digital Television Promotion Act” (CBDTPA).
Text of the SSSCA.
The CBDTPA (formerly known as the SSSCA) attempts to provide even more power to content providers. Many view the CBDTPA as “DMCA 2.0”. Like the DMCA, the CBDTPA makes it a crime to remove any security technology, even when you are removing the security technology to exercise legal rights. Furthermore, the CBDTPA mandates that all digital devices conform to the federally mandated security standards (including cell phones, digital cameras, and even watches).
If approved by Congress, the CBDTPA will have a number of negative consequences. First, it will further erode fair use rights by placing even more power in the hands of content companies. Second, it will prevent electronics companies from building innovative new products. Third, as a government-mandated standard, it will be unable to keep up with the rapid pace of technology in the private sector. Fourth, it is likely to have all of these negative impacts without solving the real problem of organized piracy.
“As with a certain Houston energy company’s dealings with friendly government officials, one couldn’t help but wonder where the little people stood in all of this. The answer came from Sen. Fritz Hollings, clearly a friend of content holders. ‘When Congress sits idly by in the face of these [file-sharing] activities, we essentially sanction the Internet as a haven for thievery,’ said the committee chairman, charging ‘over 10 million people’ with stealing. That’s where citizens stand — not as potential consumers, but as candidates for prison denim.”
Steve Jobs says that “Unfortunately in many cases, fear is paralyzing Hollywood’s ability to seize what I believe is an incredible opportunity. […] We at Apple believe most people want to be honest, and if offered reasonable choices, most people will choose to buy their content.”
Intel’s executive vice president states that the CBDTPA “will substantially retard innovation, investment in new technologies, and will reduce the usefulness of our products to consumers.”
“Enacting additional copyright-protections beyond those already provided by the Digital Millennium Copyright Act (DMCA) is unwarranted. Already, we have seen an unintended chilling effect on computer security research by the DMCA. Any law along the lines of the SSSCA might well have more far-reaching and damaging effects.”
“Music and record industry lobbyists are quietly readying an all-out assault on Congress this fall in hopes of dramatically rewriting copyright laws. With the help of Fritz Hollings (D-S.C.), the powerful chairman of the Senate Commerce committee, they hope to embed copy-protection controls in nearly all consumer electronic devices and PCs. All types of digital content, including music, video and e-books, are covered.”
Yes, but only in very specific and limited cases. For example, the CBDTPA provides just one exemption: for recording a TV show.
The DMCA provides similar limited exemptions. Libraries may circumvent copy protection — but only for the purpose of determining whether or not to acquire the work. They cannot circumvent for the purpose of archiving the content, lending it to patrons, etc. Paradoxically, the DMCA outlaws devices that could be used for circumvention, so it is unclear how libraries would ever obtain the technology that would allow them to exercise their exemption.
Scientists are supposedly able to circumvent copy protection for the purpose of encryption research. But a Princeton cryptography professor was recently prevented from publishing his research because of threatening actions by the RIAA.
So while the new copyright laws do provide certain exemptions, in practice the exemptions are so narrow as to be useless for most citizens.
“Most likely, the DMCA will ensure that more works come with licenses and with an obligation to pay for each use or access. This change could hit libraries particularly hard, because it will challenge the way in which libraries function as the archive of our published history.”
“In a move that shows just how wary of free speech the recording industry has become, a Princeton computer science professor announced Thursday that he would not be presenting a paper that revealed how he and his colleagues cracked SDMI — the recording industry’s chosen method of cryptographically protecting digital music. Edward Felten, who was scheduled to present his findings before the Fourth International Information Hiding Workshop in Pennsylvania, explained that threats of legal action by the Recording Industry Association of America had persuaded him to stay silent.”
There are two reasons why simply adding more exemptions won’t work.
First, an exemption-based approach leaves no room for innovation. It expects the government to figure out the entire set of possible fair uses of technology; all others are forever illegal unless authorized by the content industry. Many products that are legal today would never have existed. See 3.3 for more details.
Second, it would be almost impossible to enumerate every reasonable and fair use of all the different kinds of digital media out there today (not to mention new kinds that haven’t been invented yet). We tried that approach with the DMCA and left out a number of important uses — for example, the DMCA has no exemption that would allow blind people to extract text from an electronic book. Congress itself affirmed that it is impossible to formulate exact rules for fair use in the House Report on the Betamax case.
Instead of making specific exemptions that fall far short of the rights we had before the DMCA, we need a positive assertion of a set of general, reasonable principles. That’s the goal of our Consumer Technology Bill of Rights. It defines broad categories of rights within the domain of personal non-commercial use, and it decriminalizes the technology that can be used to exercise those rights.
House of Representatives Report No. 94-1476 as quoted by the Supreme Court. “The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.”
Definitely not. None of the rights that we are advocating would make it legal to steal music or movies. In fact, history has shown us that robust fair use rights can actually benefit the content industry. For example, the content industry bitterly opposed VCRs, arguing that they infringed on their copyrights for movies. However, the sale of video tapes now represents a large source of revenue for the movie studios.
“The plaintiffs, Universal and Walt Disney Productions on behalf of the Hollywood majors, charged that the ability of the Betamax to copy programming off air was an infringement of copyright and sought to halt the sale of the machines.”
Definitely not. None of the rights that we are advocating would cause artists to lose control over the public or commercial use of their works.
In fact, most of the problems that artists face in the digital world have little to do with technology. Even the new legal music services provided by the major labels have caused artists to lose control over their creations.
“Last December, the major record labels responded with two Internet services of their own where fans pay monthly fees to download songs. Under this arrangement, however, the performers still don’t get a dime: for each song downloaded, they stand to get only a fraction of a cent, according to the calculations of disgruntled managers and lawyers. And, artists and their managers say, the labels, like Napster, aren’t putting the music online with proper permission either.”
Absolutely. The anti-circumvention provisions of the DMCA hinder innovation in a number of ways. Devices such as VCRs and portable MP3 players might not exist today if anti-circumvention laws had been in place when they were released. (An injunction against portable MP3 players was lifted just two days before the DMCA was signed into law.)
Anti-circumvention laws can also be used to prevent competition. If copy protections cannot be circumvented, then it is impossible for computer scientists to “reverse engineer” software or devices in order to build compatible products. For example, if computer vendors had not been allowed to reverse-engineer certain computer chips, IBM would have remained the only producer of personal computers. Dell, Compaq, and Gateway would have never existed.
In addition, anti-circumvention laws can be used to prevent interoperability. Microsoft’s networking protocols are proprietary and undocumented, so reverse engineering is required in order to allow Macintosh or Unix machines to communicate with Windows machines. The free Samba product (which allows Unix machines to share files with Microsoft machines) could not be created under the DMCA.
The DMCA can even be used to silence discussion and criticism about a company’s products. Microsoft invoked the DMCA in order to shut down internet bulletin boards that contained unfavorable discussions of its products.
“If the business people who rule the entertainment industry had been as powerful 25 years ago as they are today, you’d be breaking the law if you set your videocassette recorder to tape your favorite Olympic event for later viewing. The VCR, assuming the entertainment industry would have allowed a manufacturer to sell it, would not have a fast-forward button because it would let you skip through the commercials without viewing them.”
“San Jose-based Phoenix Technologies Ltd.’s reverse engineering of IBM’s BIOS in the mid-1980s became the basis for the entire PC clone industry.” And the Samba team “is forced to reverse engineer because Microsoft doesn’t offer documentation of its proprietary protocols.”
“A team of developers in Australia created the ‘samba’ suite, enabling a variety of UNIX-like machines to act as file and print servers also for Windows machines. This fact alone has prevented a monopoly, and preserved a healthy and competitive business climate in the area of network servers. The ‘samba’ suite was made possible by reverse engineering Microsoft’s ‘SMB’ protocol, something which according to my understanding would be deemed illegal under the DMCA.”
“If Microsoft’s interpretation of the DMCA’s ban on circumvention technologies is right, then it doesn’t seem to matter much whether posting unauthorized copies of the Microsoft Kerberos specification would be a fair use. A publisher can prohibit fair-use commentary simply by implementing access and disclosure restrictions that bind the entire public. Anyone who discloses the information, or even tells others how to get it, is a felon.”
Section 1201(f) of the DMCA states that “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.” Doesn’t this solve the reverse-engineering problem?
This exemption is inadequate for several reasons. First, reverse-engineering has many legitimate uses beyond strict interoperability that are not allowed by the DMCA. Significantly, one might reverse-engineer in order to build a competitive product, but such reverse-engineering is not permitted. Other legitimate uses that are not exempted include: verifying proper operation of a program; discovering undocumented features; or correcting bugs in the external specifications of an application.
Second, “interoperability” is narrowly defined by the DMCA as meaning “the ability of computers to exchange information, and of such programs mutually to use the information which has been exchanged.” By restricting interoperability to information exchange, the DMCA excludes other legitimate types of interoperability such as API-level replacements for computer libraries.
Third, the DMCA only exempts reverse-engineering for computer programs, not for network protocols or hardware devices.
Fourth, while section 1201(f) provides an exemption for reverse-engineering, sections 1201(a)(2) and 1201(b) explicitly prohibit the act of providing technologies that are “primarily designed for the purpose of circumventing protection”. So while the DMCA offers a narrow exemption for reverse-engineering, it forbids the manufacture of the tools that would actually enable you to use the exemption!
Finally, the DMCA has clearly had a chilling effect on existing industries. For example, in the DeCSS case, the motion picture industry sued programmers who developed code that provided interoperability with DVD encodings — exactly the type of reverse-engineering supposedly protected by the DMCA’s exemption. Other examples of the DMCA chilling innovation can be found in the Adobe e-book case (where Adobe sued a Russian programmer for reverse-engineering their electronic book format) and the Microsoft case mentioned above (3.3).
For these and other reasons, a number of observers have commented that the DMCA’s exemption for reverse-engineering is illusory.
Dozens of prominent software engineers and executives protest the DMCA’s ban on reverse-engineering. Signatories include the chairmen of Red Hat and VA Linux and the authors of the Perl programming language, the Apache web server, and the Sendmail email server. “The DMCA, in spite of its supposed exception, punishes reverse engineering.”
“‘But you’re not allowed to see if the software does what it’s supposed to do,’ says Granick, nor can you look at it for purposes of scientific inquiry. She offers an analogy: ‘You have a car, but you’re not allowed to open the hood.'”
The president of the Association of Computing Machinery (the most prominent organization of computer scientists in the country) states that “the DMCA outlaws almost all reverse engineering of copy protection systems” (although the article goes on to note that reverse engineering for interoperability is exempted).
Unfortunately, the increasing imbalance in copyright law is having negative effects on the ability of libraries to provide their public services. Anti-circumvention rules make it difficult for libraries to archive and loan content. Even worse, certain publishers have announced their intent to “push back” on the libraries and force them to charge patrons for accessing electronic books.
“The [American Association of Publishers] is looking for ways to charge library patrons for information. ‘Politically,’ Schroeder says, ‘it’s the toughest issue. Libraries have a wonderful image.'”
“[The president of the American Association of Publishers] has been quoted as saying that publishers have to ‘learn to push back’ against libraries, which she portrays as an organized band of pirates!”
“Over the long term, these technological ‘locks’ could have an enormous impact on the ability of libraries to provide access to, lend, and archive material, as well as adversely affect the ability of users of a library to make full legitimate use of its resources.”