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Comments on the Digital Millennium Copyright Act
from the fighting-back dept.
(Note to would-be commenters: make sure you read the rules before sending in comments. You can send comments in plain text or as a PDF file [see createpdf.adobe.com], but it must be as an e-mail attachment, not in the body, addressed to 1201@loc.gov.)
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act
Michael Sims
76 Swan St.
Staten Island, NY 10301
(718) 556-1002
<michael@slashdot.org>
David O. Carson
General Counsel, Copyright GC/I&R
P.O. Box 70400
Southwest Station
Washington, DC 20024
By e-mail: 1201@loc.gov
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act
Dear Copyright Office,
My comments on this section of the Digital Millennium Copyright Act are simple: I recommend that the Librarian of Congress find that enforcement of Section 1201(a)(1) will adversely affect non-infringing uses of copyrighted works for ALL CLASSES of copyrighted material, and thus the prohibition in subparagraph (A) should not apply to any user for any copyrighted work for the next three years.
Digital copyright protection systems offer the potential for copyright holders to totally eliminate any "unauthorized" uses through technology. The copyright system employed on Digital Versatile Discs (DVD's), for example, does not permit users to make copies, grab still screenshots or audio snippets, or even to play the disc in an unauthorized piece of hardware, on an unauthorized operating system, or in an unauthorized country. This is the model for future digital distribution systems. No technological system can tell whether a user is making "fair use" copying or not, so they restrict all copying.
Users already pay for whatever unauthorized copying may occur. See 17 USC Sec. 1004, which describes the government-mandated royalty payments on digital audio recording devices and media, which go to producers of copyrighted content. Everyone who purchases any equipment relating to digital audio pays a tax directly into the pockets of the recording industry, whether they ever infringe any copyrights or not. These forced royalties were put into place specifically to compensate copyright holders for the alleged "casual copying" that users would perform.
There is already plenty of copyright law on the books. Copyright infringement is unlawful and punishable. By definition, a corporation pursuing claims under the copyright infringement laws is enforcing its rights to the maximum extent of the law - so what use is the prohibition against circumventing access control measures? The only use of such a prohibition is to attack conduct that is NOT infringing, yet still involves some sort of access to a copyrighted work, since infringing conduct could be attacked under other parts of the copyright laws. The usual name for conduct that isn't infringing but involves copying from a copyrighted work is "fair use".
And of course "effectively controls access to a work" reaches far beyond a copyright holder's rights under our current laws. The phrase is not "effectively controls copying of a work", though even that would eliminate fair use copying. Copyright is the right to prevent copying. The right to prevent or regulate access to a specific work is one that has never been enforced by copyright - when one book vendor tried to do so, the Supreme Court ruled against them, in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908). Once a book is sold the copyright holder loses all powers over it - the purchaser can sell it again, loan it out, or read it in the country of his choice. Under section 1201(a)(1), a digital book author could restrict any or all of these abilities, and violating the restrictions would be grounds for civil and criminal penalties, including up to five years in prison. Once more: reading a book in a location or manner not authorized by the copyright holder could land you five years in prison. In a world that is rapidly moving to digitization of all works of creativity and scholarship, this is a frightening thought.
I'm not sure I can emphasize this enough. The only purposes which 1201(a)(1) can be used for is to restrict consumers from non-infringing copying and from accessing the copyrighted content in the time, place and manner of their choosing, which has never been a legitimate subject of copyright rights. That is, if a lawsuit is brought against someone, only two situations can exist: either that person was actually infringing copyright, in which cases claims could be brought under both the copyright infringement statutes and this circumvention provision; or the person was not actually infringing, in which case the claim under this provision would necessarily affect non-infringing conduct. In the first case this provision is simply tacking on more liability to the copyright infringement codes (which Congress should do independently if it wishes); in the second case it is making tort-feasors or criminals out of persons who have not infringed copyright in any fashion.
So we've established that the only conduct which section 1201(a)(1) affects is conduct which is non-infringing copying, or unauthorized access. Nothing in the law requires copyright holders to set "fair" standards for access to works - for instance, a digital book, perhaps a work by Stephen King or Danielle Steele, could cost $5 for individuals to buy, but $500 for libraries to buy. The mass market books could be issued with the "access restriction" that the purchaser may not lend the book to anyone else, ever, and thus the library would have no recourse but to purchase the $500 lending-permitted version. Access could be further restricted by only allowing the purchasing library to lend the book out; inter-library loans would be a thing of the past. Or maybe digital books would expire after a set time period; trying to gain access to them afterwards would be a violation. Naturally, copyright holders will seek to maximize their profits by setting the most restrictive access terms that the market will accept. Conduct like this is allowed by the law, hugely profitable to copyright holders, and under section 1201(a)(1), taking any action to circumvent it is illegal.
The Federal Register notice asks for specific examples of abuse. As an example, the standard for Digital Versatile Discs forces DVD players disable the user's ability to fast-forward when instructed by the disc. This allows copyright holders to include advertisements in the content which the user has no choice but to watch. If I want to be able to make certain non-infringing uses of a DVD I've purchased - such as watching only the 90% of the content which is not advertisements while skipping past the rest - the access controls in the work prohibit me from doing so, and the DMCA prohibits me from circumventing those access controls. There are hundreds or thousands of examples of abuses related to the software field. Many software programs limit their use to a single machine CPU, prevent users from making back-up copies of the original software, inform on users via the Internet to the company which produced the software, and otherwise limit the user's ability to copy or access the software in the manner of his choosing.
Access controls will also adversely affect the ability of libraries to archive copyrighted works. Digital Versatile Discs may last as little as 5-10 years (that is how long CD's last) and the access controls built into all DVD players and recorders mean that is impossible for a library to transfer a copyrighted work to a new medium for archival purposes. While a library's rare book collection can be digitized so that even when preservation efforts fail, an authentic copy remains available, no such preservation measures are allowed by the DMCA.
I hope I have made my point adequately. Honestly, the Librarian's action on this matter is likely to have little practical effect. Section 1201(a)(2) of the law, already in effect, outlaws the production, importation or distribution of any devices (including software code) which would circumvent access control measures. This part of the DMCA is already being used against individuals who wanted to play DVD's on an "unauthorized" computer operating system, Linux, and constructed a device to allow them to play lawfully-purchased DVD's on computers running Linux. The outcome of that lawsuit is not yet determined, but it is clear that making lawful, non-infringing uses of lawfully purchased DVD's (the defendants have not been accused of any copyright infringement whatsoever) is being hampered by the DMCA.
Thus, even if the Librarian accepts my recommendation and negates the effect of 1201(a)(1) for the next three years, a library may still find itself in the position of being permitted to circumvent an access control measure but not being allowed to construct or otherwise obtain a "device" which would allow them to perform it, unless the library desired to be sued by a copyright holder. However, if the Librarian were to reject 1201(a)(1) for all copyrighted works, this would send a strong message to Congress that the current attitude toward protecting copyrighted works, which involves no consideration of the fair use rights of the public, is unacceptable to the library community.
-- Michael Sims
Feb. 16, 2000
numbers are meaningless in proper perspective (Score:4)
Keep in mind that this is in an online forum, most likely visited by those who are seriously concerned about it. The only thing this means is that 70 people are pissed. This certainly does not say anything about {public,community,national,*} attitude toward the matter. And, frankly, they most likely won't care anyway.
IMPORTANT - READ REQUIREMENTS FOR FILING! (Score:5)
Isn't this Compaq and the IBM BIOS all over again? (Score:4)
More legislation via regulation by the executive! (Score:5)
The constitution gives legislative power solely to Congress for good reason.
Other recent examples:
What: Medical privacy regulations [aclu.org]
What: Mandatory use of SSN's for PO box holders [house.gov]
What: "Know Your Customer [defendyourprivacy.com]" proposal for mandatory bank account activity profiling
The list goes on and on. I am afraid that until we force Congress to assert its sole right to legislate, we will be running around trying to stamp out these fires as they pop up. Inevitably some of this shit is going to slip by. We need to solve the root problem [house.gov].
What People have done Wrong (Score:5)
"No person shall . . . offer to the public, provide or otherwise traffic in any technology . . . that---
"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [the Copyright Act];
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act]; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under [the Copyright Act].''10
Portion C of this is most important. Most of the activities of the open source community thus far have been to disseminate the code as widely as possible, this is only hurting the case. By publicly flaunting the law--printing the code on t-shirts etc--many persons have made it look like the original intent of DeCSS was to pirate. No matter what the defendants might say now it is almost impossible to prove to a judge that the true motives behind spreading the code were to play DVDs in Linux. In fact I personally don't believe that was the motive of most of the people posting the code, they were just trying to flaunt the system; all fine and dandy until the system catches up.
If the community had chosen to deal with DeCSS as it was origninally intended I have to think we would have a much better chance of winning the case.
Time-Warner Response (Score:4)
The Time-Warner response likens CSS to the scrambling of cable signals. In this capacity, for only prohibitting things like digital versions of fscktv [fortyoz.org], I don't feel it strongly infringes on my freedom.
They claim they're just like the cable companies; that they're preventing access only to people who haven't paid for a work, which is simply not true.
From item 5 of the text:
The referenced item 3 basically says that lawful users now have convenient access to more works, but ignores the fact that they have less access to these works. Certainly by not being able to view DVDs on GNU/Linux systems because of the technical protection measures, these works are less available to us, especially if VHS fades behind the growth of DVDs.
Indeed, copyright often proports to exist to give corpor^H^H^H^H^H^Hauthors safety in releasing their works. Time-Warner argues that by giving authors more control they will be more willing to continue releasing their works. How many works have not been done soley because of fears of copying, fears that they'll only make $300 million off the latest movie instead of $310 million? That they might have less money to make the next movie doesn't factor into whether they're willing to release an individual movie.
Any law against actions which aren't easily detectable and don't direct damage anyone are hard to enforce. Copyright is no exception. It takes a police state to do this. Just because infringement has become easier and more undetectable doesn't mean we should start throwing away our fair use rights.
Don't *just* rant - read the copyright office docs (Score:4)
Re:Urh? (Score:5)
They're looking for reasons not to enact this part of a bill as law. I can see lots of problems in it as a legal layman.
It affects you by putting a legal resriction on you as worded in this bill if it become law. It is important, sine it paves the way for companies to charge on a per content usage basis. This is basicly saying everything is going to be DIVX like, in the sense that you don't *own what you buy - you pay for a limited use of a product.
Don't read below here if you dont' want to think.
-----------------------------------------------
If this becomes law the US will be shooting itself in the foot in my opinion. If you make a product only obtainable via the black market then the black market will drive the companies out of high profits slowly. I'm all for them going to hell in a hand basket.
That's how it is in china - they don't allow many movies in so they have large black market to sell product there is demand for... It got to the point where who cares about the orignal product, when the black market is providing a better service to the customer base's needs.
In other words I thinking trying to lock down content harder will encourage pricay and leanacy to it even more! This will happen slowly, as the profits slip so will the companies' power to buy legal attacks and busts.
If they want to ruin their bussiness, let them... if this is enacted I'm almost certian it will lead to weaker enforcement of these laws in less than a few years.
Does anyone remember the prohibition?
By making alcohol illegal to sell it gave those that risked selling it on the black market more power.
Re:They're not really asking about DVD (Score:4)
That's from the notice of inquiry [loc.gov]
How about a ban on metaphors (Score:3)
To put it in less technical terms, a fair use defense might allow a user to quote a passage from a book but it does not follow that the user is allowed to break into a bookstore and steal a book.
Thats totally true. It also shouldn't be legal to break into a video shop and steal a disc.
Or we shouldn't be allowed to hack a cable box to get all the channels for free
While we're at it, it shouldn't be legal to open the shrink wrap without an approved pair of scissors
The point is that all these seem to be lumped together into the same category, but decrypting a disc is different from all of them.
It does (arguably) allow unauthorised copying.
It also allows legal copying (For example, Whatever Warner says, I can't produce a video review programme with clips from DVD's and distribute on video without circumventing the technological access controls).
Rather than trying to draw up a parallel with a non technological solution, we should be asking whether it is justifiable to ban free universal access in order to prevent an increase in piracy.
Viewpoints. (Score:3)
Wordpad saves in Word 6.0, an acceptable format. February 17, 2000
David O. Carson, Esq.
General Counsel
Copyright GC/I&R
Southwest Station
Washington, DC 20024
Re: Section 1201(a)(1) of the Digital Millennium Copyright Act (Docket #7M99-7
Dear Mr. Carson:
I am grateful for the opportunity of submitting comments on behalf of myself, a citizen of this country in response to the Notice of Inquiry announce in the Federal Register Volume 64, No. 102. As a normal citizen I rarely have the ability and resources that a large company has to react on an equal basis to federal decisions.
As I am sure you know, a number of major corporations are vitally interested in effective protection of copyrights. As a person who can now compete with these corporations on equal footing thanks to technology, I strongly support this attitude and agree that such measures are vitally important. Under the claim of that connection, many of these corporations support the Digital Millennium Copyright Act (DMCA), which, among other things, makes it unlawful to defeat technological protections used by copyright owners to prevent fair use, backups, and access in a manner unintended by the producer.
For your consideration we have the current legal battle of DeCSS. On the one side are corporations who wish to prevent unauthorized copying. However, the unauthorized copying of their products has been going on long before DeCSS was invented. The defendants are individuals who wished to view legally obtained DVD movies on legally obtained DVD drives installed in their legally obtained computers. They are not pirates but only wish to use the DVD in a manner currently considered fair use.
Today, I can create a movie, reproduce it on videotape and distribute it. However, as a small independent, I cannot legally create and distribute that movie on DVD under the DMCA, because the tools required to do so are become illegal to create or own. In short, the larger production studios are granted a legal monopoly.
Today I can create music, reproduce it on CD or MP3 and distribute it. However, the tools used to record audio on MP3 and CDs will no longer be legal under the DMCA because any tool capable of copying audio files could be considered a technological measure used to circumvent copy protection.
I am also prevented from making backup and archival copies of the media I have purchased. The members of our military may be prevented from purchasing DVD movies and viewing them while they are stationed oversees. This may already be happening today because of region codes imprinted in DVD movies.
You will receive many favorable reviews of the DMCA. I suspect that most of them will come from large corporations that realize the DMCA allows them to control and prevent fair use of their products and also allows them to prevent fair competition from small independents and individuals. If America is still a country by the people, and for the people, I urge you to listen to the people, the small independent artist and businessman who can already recognize what the DMCA means to them.
Thank You.
Kenneth David Boucher
-----
My Letter to Library of Congress Copyright office (Score:3)
--------------------
David O. Carson,
General Counsel,
Copyright GC/I&R,
P.O. Box 70400,
Southwest Station,
Washington, DC 20024
Mr. Carson,
I'm writing in response to the Library of Congress's request
for comments regarding Section 1201(a)(1) of the Digital
Millennium Copyright Act. As a citizen of the United States who
earns my living through writing and maintaining software, among
other types of intellectual property, this law concerns me
greatly.
While not an attorney, my understanding of how this law is
being interpreted currently in courts, for example in the DeCSS
suit brought by the Motion Picture Association of America against
many online providers and web page authors along with the authors
of the original DeCSS code, in commentary by many pundits
published throughout the technical press, and finally my own
reading of the law, section 1201(a)(1), said law could give
sweeping new powers and authority to those copyright holders who
include technical provisions to prevent unauthorized copying and
presentation of copyrighted materials to the detriment of "fair
use" laws. This thwarts basic citizens' rights to access what
they've purchased simply because it might violate a contractual
requirement of the license, along with technical provisions
included in the media content to enforce such a stipulation.
How will this affect the rights of citizens to use our
public libraries? Will copyright owners now be allowed to
contractually stipulate in their license that libraries, or their
clientele, must purchase per use licenses to access copyrighted
materials? Given the trend toward digital content over
traditional printed publishing, this is not as crazy as it
sounds. Within a few decades it's quite possible that publishing
on paper, which I understand will not fall under section
(1201(a)(a) and thus will continue to be available to public
libraries under "fair use" guidelines simply because it lacks a
technical mechanism for copy protection, may become outmoded as
paper costs already far exceed the cost of distributing
intellectual materials electronically. Should this take place
1201(a)(1) has the potential to essentially criminalize public
libraries as we know them, forcing a dichotomy between those who
can afford the per use costs charged by copyright holders against
those who can't, while gutting a public infrastructure for the
dissemination of new ideas.
Beyond public libraries, are we to accept the notion that
copyright holders should now have a new set of rights which not
only limit under what conditions a licensee may copy works, but
also when a licensee may access said works, where they may access
said works, with what equipment they may access those works, and
even limit the copyright holder's liability simply by the
licensee opening a shrinkwrap license they can't even read until
after the fact?
Because if it's acceptable that Sony, for example, can
legally lock the contents of a DVD video disk through encryption
under force of copyright law as a mechanism of copyright
protection under 1201(a)(1), then how will consumers enjoy their
basic rights for legally copying a "backup archive" of content
for which they've purchased a license? Is it "fair use" to
prevent consumers from accessing said materials through regional
locks, or stipulating which hardware or software platform is
legal for the reading of said disks? If so, consumers will be
forced to purchase not only the content, but also a physical
locks, or stipulating which hardware or software platform is
legal for the reading of said disks? If so, consumers will be
forced to purchase not only the content, but also a physical
device and software from the content producer, thus limiting
their right to enjoy the content to which they've purchased
access with onerous new responsibilities and costs never
previously required of consumers simply trying to gain legal
access to copyrighted materials
Does the Library of Congress wish to allow the Associated
Press the right to use copyright law to stipulate when and where
a reader may access an AP newspaper story? If the AP can't use
1201(a)(1) to limit what kind of paper the newspaper publisher
must use to print a story, nor where a reader may read, view, or
otherwise enjoy printed materials to which (s)he has legally
purchased access, why should they enjoy a right to limit said
access electronically? In a near future of electronic newspapers
and handheld electronic readers, already possible with the
popular 3Com Palm Pilot, making obsolete the traditional printed
daily will it be reasonable to allow the AP to include Global
Position Satellite equipment in an electronic newspaper reader to
enforce the provision that a news story must only be read in a
certain city, state, or country if this electronic dissemination
of the published materials meets 1201(a)(1)'s copyprotection
guidelines? Will 1201(a)(1) allow the AP to force readers to
purchase an AP approved electronic news reader as the only legal
method for accessing AP published news? And given the sweeping
new powers 1201(a)(1) allows if a restriction is specified in the
a copyright license, can the AP prevent researchers the right to
copy small pieces of a news story within todays "fair use"
guidelines to cite a source within a research paper because of a
combination of a contractual stipulation in the license and copy
protection distributed with the intellectual property? How
different are these scenarios from allowing Sony to stipulate
under what hardware a copyright licensee may view a DVD video, or
which country they in which they may enjoy access
to the materials they've purchased?
If enacted as written this could enforce a whole new
monopoly for content producers and copyright holders, not just
protecting the media content from illegal copying and bootleg
sales, but also enforcing the sale of equipment which has been
licensed strictly to access and view said materials. This will
gut public access to copyrighted works in libraries, individual
access to copyrighted works by consumers through open and public
technologies, and doesn't even serve to protect the copyright
holder's basic interest of preventing the illicit copying of
privately owned intellectual property. It's strictly a new
mechanism to force consumers to buy more equipment simply to
enjoy access to materials already purchased, no different from
Ford Motor Company mandating that Ford gasoline be used with a
Ford car by force of law.
Copyright should not exist to enforce new restrictions
beyond copying a privately owned intellectual work. If the
Library of Congress, along with the legislative branch, enact new
laws to expand the scope of Copyright law as defined in
1201(a)(1) the consequences for public access to information and
discourse may be severe. Think carefully before enacting such
laws as they may leave consumers and individuals in our society
unable to join in basic public discourse. Every new financial
wall enacted to prevent citizens from basic "fair use" rights to
copyrighted works is potentially devastating to our public
library infrastructure and thus damaging to public discourse and
our very democracy.
Sincerely,
J. Maynard Gelinas
----------------------
Cambridge, MA., 02139
maynard@jmg.com
Re:numbers are meaningless in proper perspective (Score:5)
This is the mechanism, let's use it.
I already have. My comment went in a few days ago.
With respect to the current deCSS mess:
Looking on the Library of Congress DMCA pages, I see that the anti-circumvention measures go into effect on October 28, 2000. If that's true, I don't know how a judge could have made any ruling now based on that part of the law. Effectively, it isn't law, yet.
Re:Isn't this Compaq and the IBM BIOS all over aga (Score:3)
Mmm, actually I believe it was either Phoenix Technologies or Award Software, not Compaq who did the original reverse engineering... just picking nits here...
However, these cases aren't quite like this one. The difference here is that there is a new law, the Digital Millennium Copyright Act that outright makes this type of reverse engineering illegal. The law doesn't apply to the recent Sony vs. Connectix suit because the reverse engineering wasn't done for the purpose of defeating an encryption scheme.
Interesting side note: note that the fact that defeating the encryption scheme by this reverse engineering technique shows that the encryption scheme used in CSS is really, really crappy. What are the legal ramifications of this? For instance, if I ROT13'd this whole message, then threw the following notice on the bottom of it.
Copyright (C) 2000 Rob A. Shinn. All rights reserved. Message Encryption Powered by ROT13.
Would it be illegal for you to use ROT13 to read my message?
Confusion between copyright and copy protection (Score:3)
As I am sure you know, a number of major corporations are vitally interested in effective protection of copyrights.
Your use of the phrase "protection of copyrights" illustrates a basic misconception that is being deliberately put forth by the entertainment industry. Copyright and copy protection are two completely different concepts. Copyright provides legal protection against unauthorized copying, while copy protection/access control provides physical protection against unauthorized copying or access. They are NOT one and the same. Copyright allows for fair use. Copy protection and access control do not allow for fair use. Fair use is what allows you to quote passages from a copyrighted book in your term paper. Fair use allows you to videotape a copyrighted television program so you can watch it later. By making the act of bypassing a copy protection or access control scheme illegal, the DCMA effectively outlaws fair use.
By using the term "protection of copyright", you lend credibility to the deliberate lie that copyright and copy protection are one and the same, and that if a copy protection scheme is bypassed, then somehow the copyright is lost, and therefore that copy protection must be enforced by law.
The importance of retaining fair use provisions cannot be understated. Most of our preserved culture prior to the computer age exists as printed words on paper. In the future, the historical record of our culture will be preserved on computer media. It is vitally important to the freedom of our culture that our cultural record be dispersed throughout our society.
Why?
Because when one person or company has the power to retain physical control over all copies of their work, they also have the power to alter or destroy all copies of the work. Our cultural record is filled with examples of important books, films, and recordings that various people -- including the original publisher have attempted to censor or alter. The reason that censorship of published works is largely unsuccessful is that once copies of a work are sold, the buyer obtains complete physical control over that copy, and there is nothing that the copyright owner can do to recall the work.
Persons who are interested in the preservation of a controversial book may obtain an original copy, and protect it, secure in the knowledge that the words will not change on the page, and that their book will not suddenly burst into flames on the command of the publisher. Contrast this with the "access control." In a world where our historical record is dissemenated in electronic form, under the "access control" of the copyright owner, the copyright owner will have the ability to "reach out" and destroy or alter EVERY SINGLE copy in existance of a work. A court could find a work obscene, and issue an order that the copyright owner permanently disable access to the work, and perhaps issue a "revised" edition in it's place. In such a situation, the original work would effectively disappear forever from the world. Not only would our history be subject to continual "revision", but such revision would be enforced by law. Under the DMCA, it is effectively illegal to retain a permanent record of public discourse, including discourse in the mass media, without the permission of the content provider.
Ray Bradbury had the right idea, but the wrong method of action when he wrote Fahrenheit 451. In the world we are now passing into law, there will be no need to go house to house to destroy the books that our censors do not want us to read. Instead, our censors will simply be able to order that the access codes be disabled by the publisher. The act of preserving the truth is on the verge of actually becoming illegal. And we're the generation that's doing it to ourselves.
- John