Lofgren's Anti-DRM Bill

blastedtokyo writes "House representative Zoe Lofgren introduced the Digital Choice and Freedom Act. Perhaps the most interesting section is the part that invalidates 'non-negotiable shrink wrap licenses' (EULAs) that limit rights. On top of this, it states that both digital and analog media need to be subject to fair use rules for backing up. The full text of the bill is also available." News.com.com.com.com and Infoworld have stories as well, which both note that there is no chance of these bills being passed this year.

Re:Say it with me...

[michael]

I know we've mentioned it before, but we didn't have the text of the bill. IMHO, it's worth reading - always better to actually read source material instead of relying on second- or third- or fourth-hand reporting.

Re:Don't cross the beams...

[grylnsmn]

Go and read the actual bill. It is very specific in how it modifies the current Copyright law. For example:

(a) The first sentence of section 107, Title 17, United StatesCode, is amended by inserting after "or by any other means specified in that section," the following: "and by analog or digital transmissions,";

What this bill does is add some sorely needed wording to the current law that protects such things as the First Sale doctrine for digital items.

Another quote from the bill:

Section 1201 of Title 17, United States Code, is amended as follows:

(a) by redesignating paragraphs (c), (d), (e), (f), (g), (h), (i), (j) and (k) as paragraphs (d), (e), (f), (g), (h), (i), (j), (k) and (l); and (b) by adding after paragraph (b) the following:

"(c)(1) Notwithstanding any other provision in this title, a person who lawfully obtains a copy or phonorecord of a work, or who lawfully receives a transmission of a work, may circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if-

"(A) such act is necessary to make a non-infringing use under this title; and

"(B) the copyright owner fails to make publicly available the necessary means to perform such non-infringing use without additional cost or burden to such person.

"(2) Notwithstanding the provisions of subsections (a)(2) and (b), any person may manufacture, import, offer to the public, provide, or otherwise make available technological means to circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if, if-

"(A) such means are necessary to enable a non-infringing use under paragraph (1)(A);

"(B) such means are designed, produced and marketed to enable a non-infringing use under paragraph (1)(A); and

"(C) the copyright owner fails to make available the necessary means referred to in paragraph (1)(B).".

As you can see, it redefines parts of the law (specifically the paragraph numbering) and then adds "notwithstanding the providions..." to clarify and interpret other parts.

Let your congressmen(women) know you want this!

[BobRooney]

Its amazing and exciting that a member of congress has her finger so precisely on the pulse of the geek community with respect to the whole digital media fiasco.

What now? EVERYONE WRITE/CALL/PETITION your congressmen and your senators. Let them know that geeks vote too and we have the ability to get/cost them a large number of votes thanks to our prowess with all the latest communications technologies.

• Find out what congressional district you live inLook up [house.gov]
• Call your congressperson's office. Get them on the phone and tell them you want them to vote for this bill
• If you get your congressman on the phone, schedule an appointment. If you cant' schedule an appointment, write 2 letters, yes 2.
• 
  
  The legislative process only works if you involve yourself. Oh, and don't forget to vote!.
  

Act at the local level

[RobertNotBob]

After I read the article and followed the links to the actuall bill, I was very pleased with what I saw. However my representatives in congress has no way of knowing this unless I tell them.

If you are a regestered voter, tell your representatives what you want. If you are a citizen but not registered to vote, then move away to some backwater, third-world country where you belong. Or, of course, you could just get off of your lazy, excuse-finding a$$ and register.

And to be most effective use SNAIL-MAIL. Five letters with a return address from their home district get more attention from congressmen than 500 digital signatures from unknown locations on the internet, even if they SAY they are constituants. Slashdotting a website with 150,000 hits may be cool and all, but 150,000 leters to congress can actually make a difference.

EULA not for Computer Software

[dschuetz]

I'm surprised (or maybe I shouldn't be) that nobody's mentioned that the anti-EULA section of the bill explicitly excludes computer software:

"(b) When a digital work is distributed to the public subject to non-negotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title.

"(c) As used in this section, the following terms have the following meanings: A 'digital work' is any literary (except a computer program), sound recording or musical work, or dramatic, motion picture or other audiovisual work, in whole or in part in a digital or other non-analog format.

It looks like the right to copy/archive/circumvent does not exclude computer software, though -- this seems to be the only explicit exclusion. Of course, one really needs to actually patch the relevant code with the proposed diff :) to see what's *really* being introduced.

Re:Let your congressmen(women) know you want this!

[UCRowerG]

Go here [house.gov] to find your House Rep. for your city/state.

Here's what I wrote to Jim Davis:

Sir:

I have just heard of new legislation that U.S. Congresswoman Zoe Lofgren (16th Congressional District, California) is proposing. As both a software developer and someone who appreciates art in any form, be it written, musical, video or otherwise, I would strongly encourage you to read this new proposal, if you have not already, in hopes that you may lend your support. Relevant website links are below.

Thank you for your time.

http://www.house.gov/lofgren/press/107press/021002 _summary.htm

http://www.house.gov/zoelofgren

Re:EULA's

[CashCarSTAR]

Putting a disclaimer on the box is all that's really needed. I agree with you that some protection is needed. But all you really need is two lines or so. Do not distribute and we are not responsible for damage. That's it.

Anything else is just lawyer-happy fluff.

Re:copyright, EULA and GPL

[Chris Burke]

No. The GPL is not in any way an EULA. If you want to use the software, the GPL does nothing. Accepting the GPL or not has no effect whatsoever on your use of the software. If you don't accept the MS EULA, you can't use the software. With the GPL, it doesn't matter. This of course doesn't include making derivative works from or distributing. These are not usually considered End User uses, because they are prohibited by copyright, not by a EULA. If no EULA existed, you still wouldn't be able to modify or distribute a program.

The GPL grants rights to modify and distribute, and yes there are terms for that, but that doesn't make it an EULA. It's as much an EULA as the contracts Microsoft presents when they grant someone access to -their- source code, and believe me they don't stick that in a little window with an "OK" button. :)

That's the deal -- the GPL is a -license- but not an End User License Agreement.

READ

[Chris Burke]

The bill doesn't ban licenses on software, it bans the EULA as the word means today -- a license that pops up during installation, after you've bought the product and brought it home.

In short, it does exactly what you want -- it gets rid of the crap license you don't like, but keeps the ability to have the all-important disclaimer.

Re:It's good to know

[Stonehand]

Rep. Lofgren does have an varied list of top contributors [opensecrets.org] -- perhaps most relevant would be the American Intellectual Property Law Association, and the National Cable and Telecommunications Association.

If you check the list of Top Industries that support Zoe Lofgren with money [opensecrets.org], the #1 item is... "Computer Equipment & Services", followed by "Lawyers/Law Firms". "TV/Movies/Music" pays her some (not much for the 2002 cycle, only $7.7K), but quite a bit less (about 10:1 for combined computer/law vs TV/movies/music).

That ratio would be rather consistent with this stance, although it's not indicative of a quid-pro-quo as people are going to give money mostly to reps who vote favorably if there's a danger of getting somebody who would vote the other way.

Analysis of the Bill

[Anonymous Coward]

LawMeme [yale.edu] has a pretty good analysis of the bill here [yale.edu].

Re:copyright, EULA and GPL

[shepd]

Section 5 of the GPL says...

"You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

Because RMS knew this could/would happen.

Re:EULA's

[karmawarrior]

You don't need to sign a EULA to eat peanut butter, which can also cause harm or even death to people with the wrong allergies. Generally, even in this legalistic society of ours, a notice along the lines of "Warning: Contains peanuts" is generally considered more than enough if prominent enough and on the outer labelling.

I think it's reasonable to rely on disclaimers, and if our law makes EULAs necessary because disclaimers do not have enough force, then perhaps the disclaimers should be given legal wieght in the same bill that pre-empts EULAs.

Write your congresscritters, folks!

[Troy Baer]

If you want this bill (or something like it) passed, you have to let your House Rep. and Senators know that you consider it important. A short email or, better yet, snail-mail message will work wonders; here's the one I sent off to the Ohio congresscritters:

To: [e-mail], [e-mail], [e-mail]

Subject: Lofgren bill

Honorable Senators and Congresswoman:

I am writing you today to express my support for a bill recently introduced into the House by Congresswoman Zoe Lofgren (which unfortunately does not yet have a congressional record number that I can find), entitled "The Digital Choice and Freedom Act of 2002". This bill would modify the copyright laws to reinforce consumers' fair use rights, which were eroded by the Digital Millenium Copyright Act (DMCA) passed in 1998.

This legislation is desparately needed. Copyright law in recent years has been heavily tilted in favor of copyright holders, and fair use rights and the public domain have suffered as a result. This act would return some semblance of sanity to some of the more draconian aspects of the DMCA, which disallows circumvention of access controls on copyrighted digital works even if that circumvention is needed to make fair use of the work. (This means, for instance, that it is potentially illegal to develop and distribute an open source DVD player for Linux, because any such player must circumvent the access controls built into the DVD format. This leads to the absurd situation where I can legally buy a DVD and a DVD player/drive for a computer running Linux, but I may not legally be able to play the DVD on the computer.)

Please lend your support to Congresswoman Lofgren's bill. Thank you for your time and attention in the matter.

Sincerely,
(name, address, & phone number)

--Troy

EULAs have been UPHELD IN COURT

[EvilSpongeBob]

I wish your opinions were true, but they are not the opinion of the court.

BlackSnow Interactive took Mythic Entertainment to court in order to challenge the EULA and lost.

For details, go to Google and search on "BlackSnow Mythic EULA"

Re:Why?

[Anonymous Coward]

It's not new regulations. It's re-asserting of basic contract law. If you do not sign a contract before you plunk down your money, it is a SALE not a lease/contract/whatever.

If it looks like a sale, and smells like a sale, it is a sale, no matter what the producer of the good says.

EULA's are no different than a car manufacturer putting a sticker on your gastank saying "By breaking this seal, I agree to only buy gas at Esson stations." It is clearly illegal, despite the money software manufactureres have thrown at politicians to get them to say otherwise.

Re:EULA's

[bnenning]

I don't want to be sued because some idiot misused or ran a virus infected version of my executable and bad things happened to that PC. I don't want to be sued when the same idiot installs an older software application that overwrites a bunch of MFC and ATL DLL's and then complains that "it dunnit work no more - yee haw"

You want a disclaimer of warranty, which is separate from the use-controlling and rights-removing aspects of a EULA. You don't need a EULA, you just need a notice that says "This software is provided as is, with no express or implied warranty, the publisher is not responsible for any loss or damage, etc, etc".

Re:EULA's

[pogen]

What the hell happened to common sense?

I don't think it's gone. I would guess that the warnings are simply painted with a broad brush for the sake of simplicity; e.g. "anything containing peanuts" or "anything over X degrees" must carry a warning. In 90% of cases, the warnings are helpful, because the danger might not be obvious (e.g., something cooked in peanut oil). When you see the warnings on a cup of coffee or a jar of peanut butter, it's not because people are stupid, or lack common sense. It's simply because it costs nothing to add the warning, and if they decided to leave it off of some products, they would find themselves in the business of defining the line between when a danger is obvious enough for common sense, and when it's not. This would be a complete waste of time, as there is nothing to be gained by drawing that line, but plenty to lose if they drew it in the wrong place. So they just apply the warning across the board to save themselves the trouble.

Now, for the conspiratorial version: Corporations are trying to drum up popular support for tort law reform. They put these warnings on their products deliberately, because the warnings create the impression that they are being plagued by lawsuits from people who lack common sense. (This is a popular meme, because it also leads to a feeling of superiority in the person who believes it.) Tort law reform suddenly seems like a great idea to your average Joe. Average Joe votes....

Re:This bill will never pass

[ninewands]

Quoth the poster:

She doesn't really expect to push it, or for it to pass.

I don't know about that. Here's the response I got to an e-mail I sent Rep. Lofgren. Please note, I am NOT one of her constituents and yet I got a response. This is one unusual Congresscritter ...

[Personal Identifying info deleted]

Thank you for your kind words of support regarding my new bill, the Digital Choice and Freedom Act (H.R. 5522). I appreciate the time you took to contact me.

I have been thrilled that consumers from across the country and across the globe have emailed me their positive comments about the Digital Choice and Freedom Act. As you know, this bill seeks to maintain in the digital age the same balance that existing U.S. copyright law establishes between the interest of copyright holders in controlling the use of their works and the interests of the public in the free flow of ideas, information and commerce. The full text of my bill, along with a section-by-section analysis, is available on my website at http://zoelofgren.house.gov/ [house.gov].

Since you do not reside in the 16th California Congressional District, you may also wish to let your own Representative know your views on this subject.

Again, thank you for your support.

Sincerely,

Zoe Lofgren
Member of Congress

Impromptu Open Standards Adherence Test:

I might also point out that the page linked to above does not render at all in Netscape 4.79 under Solaris even though MOST of the House's webservers are running Netscape Enterprise on Solaris (per Netcraft). It renders perfectly in IE6,in (blush) KFM under RH 6.2, in Mozilla 1.0.0, Konqueror, and even in Lynx, all under Debian sarge ... Guess it's time to think about upgrading my Sun box at work to Solaris 9 so I can have Netscape 6 ...