RIAA, DMCA, EFF, And So Forth

twrayinma writes: "According to this article in Salon, Prof. Felten may have been smarter than we thought yesterday when he "allowed himself to be bullied" by the DMCA wielding RIAA. 2600 and the EFF could use this incident as an example of a big company using DMCA to quash legitimate research, as their court case alleges. Looks like Prof. Felten's fight may not be over yet..." Carl Kaplan's Cyber Law column in the NY Times also discusses the case.

While I'm at it, I should mention that the appeal hearing in the 2600 case will be this Tuesday in New York City. I do not know if a "protest" of any sort is planned; judges aren't supposed to decide cases based on protests anyway. But the case may be of interest to many NY-area readers:

Tuesday May 1 2001
Second Circuit Courthouse
10:00 AM
Courtroom 506
40 Centre St., at Foley Square, Manhattan

Thanks to LXNY for the information.

Re:Felten's at Princeton though, they can afford

[Anonymous Coward]

Sure Felten could probably contest the issue, but you neglect the fact that he: 1 - is a valued faculty who not only teaches but is better off doing research than wasting time in court battles 2 - if somehow Felten loses it might be bad for him and Princeton 3 - it would not be only Felten, but anyone else involved in the workshop (including the organizers who had nothing to do with the publishing/cracking but are guilty because they sponsored the workshop) So he did the right thing by backing out and not making life miserable for others with whom he associates.

Re:Just another way to lose.

[Anonymous Coward]

yeah, the porn idustry has larry flint, where is the educational sectors fat, rude loud mouth in a wheelchair?!!

Re:Just another way to lose.

[Anonymous Coward]

Actually i would call it extortion.

Re:Gandhi

[Chris Johnson]

I don't think it will take much in the way of publicizing. Felten's deftly managed to give the EFF and the television news the most deadly 'sound bite' they could have:

"RIAA crushes scientific research in Ivy League academia"

The best part is, the USA _does_ have a sort of class system- ask any preppie, ask Dubya's dad. You don't mess with the Ivy League colleges that have produced a disproportionate number of Washington bigshots. You'd have to mess with USC to make deadlier, more-organised enemies- and frankly, the Ivy League plays better in Peoria. Say the names 'Princeton-Harvard-Yale-etc' and an awful lot of people will just kowtow automatically- and say 'RIAA is doing damage to Princeton's academic freedom!' and the same people will bristle, even if they don't fully understand the details.

And the RIAA _did_ try to damage Princeton's academic freedom. They can't weasel out of this, courts don't put much stock in 'we didn't really mean it, honest'. The RIAA _did_ treat Princeton academia as a target to beat into submission. It's on record and public knowledge- and they succeeded, so it's easy for them to say they didn't mean it, now that they got what they wanted.

If you want to use this situation to best advantage, lean on the class angle- that it wasn't some punk in a dingy room surviving on Jolt, but an Ivy League College that was _successfully_ beaten into submission. People would like to think the poshest colleges of the USA are still ivory towers, and threatening and dominating these institutions is REALLY bad PR.

Re:The problem with overturning the DMCA

[LarsG]

Both the DMCA and the EU copyright directive go above and beyond the requirements set forth in the WIPO treaties. The WCT and WPPT are actually quite sensible.

The companies didn't buy the WIPO treaty. They bought the Green and White paper on the NII.

Buy Jessica Litman's "Digital Copyright" for the whole story.

European? Join Eurorights.org [eurorights.org] to fight the EU copyright directive.

Re:I Got a letter saying I violated the DMCA today

[rking]

Was it from the RIAA? If so I'd write back asking whether this was one of the times when they were really threatening to sue or whether this is one of their strange little jokes like the threats sent to Professor Felten that they now say they didn't mean. Maybe suggest they add smilies or something to the fake threats, to avoid confusion.

Felten's at Princeton though, they can afford

[georgeha]

to fight the DMCA.

Seriously, if an Ivy League school with a billion dollar endowment and thousands of crackshot lawyer alumni won't stand up to the RIAA, what chance does EFF have?

Or maybe Princeton has too many alumni making big bucks from the RIAA?

Re:Felten's at Princeton though, they can afford

[Rocky]

Felten needs to pen his memoirs after this:

"David and Goliath: A tale of the DMCA"
or
"How I rode the RIAA like a bad boy to tenure at Princeton"

Re:Court date

[homebru]

The incident is reported in Robert Dallek's biography of Johnson, Flawed Giant: Lyndon Johnson and His Times, 1961-1973 although this is not where I first heard of it.

An online reference can be found near the bottom of page 53 of the document : http://www.nku.edu/~phi/v15.pdf

Re:This may be a dumb quesiton, but...

[AdrianG]

Unless I'm mistaken, click through licences are usually unenforcible when they are used as a unilateral attempt to change the terms of an existing contract. When you purchase software, you are entering into a contract with the publisher, and the terms of that contract have to be understood by both parties when it is established. Once the contract is established, the publisher does not have the right to demand that you agree to additional terms before you have access to the software you have already purchased the right to use.

This same reasoning would not apply to a case where you did not have a prior contract. The logic that renders click through licencing agreements meaningless in a case of already purchased software may not be applicable to a case where where you are clicking through agreements on a web site as part fo the process of establishing a contract.

Does anyone out there have the expertese to settle this question?

Adrian

Re:The problem with overturning the DMCA

[AdrianG]

The Tenth Amendment states,

• The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution does give the United States the power to enter into treaties, and when the US does so, it is not a matter of the treaty powers negating the Tenth Amendment. The Tenth Amendment is no obstacle to powers that are, in fact, delegated to the US.

Nothing about this suggests that the treaty powers of the US are a threat, in any way, to the First Amendment.

Adrian

Re:That guy is so smart

[theonetruekeebler]

It was very good strategy--sometimes you have to lose a battle in order to win a war. By rolling over when the RIAA threatened him, he made the RIAA show their true colors in a documentable, admissible-as-evidence way.

And now, the chipping-away can begin.

--

This may be a dumb quesiton, but...

[sconeu]

Is New Jersey a UCITA state? If it isn't, then is SDMI's click through licence worth even the electrons that displayed it? I thought click-throughs weren't enforceable (except under UCITA)?

Re:what the heck is up with moderation?

[lizrd]

I don't know, but I've gotten moderator access twice in the last 24 hours. Perhaps there's just too many points floating around right now.

________________________

Re:The problem with overturning the DMCA

[Stonehand]

Perhaps the monarchy idea was extreme. ;-)

However, a FindLaw article [findlaw.com] (read "Constitutional Limitations on the Treaty Power") suggests that in international issues, such as migratory birds, the treaty power might be strong enough to overwhelm the Tenth Amendment. And language used by Holmes in one ruling suggested a controversy over exact interpretation...

If the Government chooses to argue a compelling interest in international cooperation over computer crime or even easily-duplicated IP, the same logic may perhaps suffice.

To my knowledge, no President or Congressman has been raked over the legal coals solely for breaking his oath, although many have pushed blatantly unconstitutional acts (provisions of the Communications Decency Act, provisions of the Violence against Women act, calling for banning flags via law (rather than amendment)...). Not yet, anyway.

Martyr for the cause:

[supabeast!]

Prof. Felten: martyr in the fight against corporatism VS. creativity. Rock on, professor.

Re:a bit on clueless corporate types

[Trekologer]

I think I know what they were trying to do. Like Macrovision, SDMI wanted to patent the ways to remove their watermarking system so that anyone who tried to could be sued for patent infringement, among other things. That's why they wanted the "winners" to sign over their rights to the solution. But, alas, they didn't expect someone to solve their puzzle and not want a shot at the money. And now, Professor Felton and company have a prior art that can bust any patent SDMI can come up with. These are the same patent games we've seen from Rambus and others.

Re:Don't just sit there reading Slashdot!

[Trekologer]

Even better than a letter, find out when your congresspeople will be in their home office and go pay them a visit. Bring some props that have examples of source code and explain to them, in great detail yet understandable to them, why the DMCA is a bad law and how it impacts your freedom.

protests

[SmokeSerpent]

Indeed, sign-weilding protestors rarely evoke change. In another thread, Ghandi's name was dropped. What Ghandi did to effect change in India was to highlight the British abuses and "goad" them into committing even worse atrocities. Of course, since we're all just pussies here, we'll whine on Slashdot, but I doubt if we'll see anyone risking their life standing in front of a gun or going on a hunger strike.

Re:what the heck is up with moderation?

[John Miles]

Same here. Just got 5 points, and I hadn't even finished burning the last set all the way.

Weird.

It appears that mod privileges...

[John Miles]

... now come free inside each specially-marked box of Froot Loops.

Junger and Bernstein crypto cases

[andyo]

Perhaps the participants in the 2600 case should look to the famous recent cases in export controls on encryption. In both cases, the Justice Department tried to suppress software on the basis that it was not a form of speech, but something functional. The courts went back and forth, but have ruled in both cases that the software is speech and is protected by the First Amendment. Can an argument like this be made against the DMCA concerning DeCSS code? It's whachya say, not wachya do.

Re:Dubious tactic

[Contact]

Sorry, but I disagree. If Felten had pulled the seminar with no prompting, saying "Oh, I can't publish in case I get sued", that might have been perceived as a deliberate dive.

However, in this case, the RIAA sent him a letter strongly suggesting that they'd take legal action if he continued, whatever they're now trying to say. As far as I can see, that's like someone being pushed.

Re:That's it! I'm fed up!

[Anonymous Coward]

If you're really fed up, do something about it.

Write your Congressmen.

For all of the highly-moderated comments here, your Congressional representatives do not read Slashdot. They do read your letters. (But not necessarily your email [zdnet.com].)

Look up your House Representative at www.house.gov/writerep/ [house.gov] and your Senators at www.senate.gov [senate.gov]. Write a letter, and address a copy to each of representatives.

Be clear, concise, and non-technical. Explain how the DMCA affects average citizens and consumers. Use examples from mainstream news sources to back up your argument. Keep it down to a page.

The ACLU has more tips [aclu.org] for writing effective letters to your Congressmen.

Unless you write your representatives, you are one of the ones who stood by and did nothing.

Statement by Oppenheim

[Anonymous Coward]

check this bs out [riaa.org]

Re:RIAA should push their legitimate case instead.

[jafac]

repeat after me, again and again until you get it right.

Infringement != Theft

Re:The problem with overturning the DMCA

[general_re]

(replying to myself, how sad)

But, this whole "Constitution vs. treaties" issue is one that seems to pop up with some regularity, whenever constitutional issues are discussed on /.

So, with that in mind, here is Mr. Justice Black, writing for the Court, from the Reid case mentioned before (footnotes removed):

"Article VI, the Supremacy Clause of the Constitution, declares:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . ."

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [354 U.S. 1, 17] War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

There is nothing in Missouri v. Holland, 252 U.S. 416 , which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier."

FWIW, Missouri v. Holland is the migratory birds case mentioned in another post...

Re:Gandhi

[Pig Hogger]

"RIAA crushes scientific research in Ivy League academia"

The best part is, the USA _does_ have a sort of class system- ask any preppie, ask Dubya's dad. You don't mess with the Ivy League colleges that have produced a disproportionate number of Washington bigshots. You'd have to mess with USC to make deadlier, more-organised enemies- and frankly, the Ivy League plays better in Peoria. Say the names 'Princeton-Harvard-Yale-etc' and an awful lot of people will just kowtow automatically- and say 'RIAA is doing damage to Princeton's academic freedom!' and the same people will bristle, even if they don't fully understand the details.

Look at it like what is really like: it's

institutions based on proven science and knowledge - versus - a bullshit-producing industry. Now, which of those deserves to run the show?

--

Trolls must unperson umodded

[Rares Marian]

Releasing a document that describes cyptography does NOT expose the work in any way.

The cryptography was broken without any initial monetary input, nor was it broken with internal documentation.

It is quite easy to design a protection system that fully documented is unbreakable. The fact is the techniques described in the paper were developed 50 years ago. Most likely the RIAA got ripped off by their own staff.

All the RIAA has is an implementation not even an invention. The problem at hand is the invention in itself practically.

On another note, why aren't we using puzzle based schemes like Ralph Merkle's instead of this ages old pissing contest of big numbers and weird theories?

You should know by now...

[SmokeSerpent]

Nothing a corporation says or does really exists. If a RIAA lackey shot Professor Felton in the head, a spokesperson would have no qualms about standing up the next day and saying;

"The Secure Digital Music Initiative Foundation (SDMI) did not intend to kill Professor Felten. We loaded the gun because we felt an obligation to licensees who had submitted their valuable inventions. We pulled the trigger in an effort to reach consensus and and understanding with Professor Felton. As a founding member of the SDMI, we strongly believe in academic freedom and free speech, but unfortunately we were unable to reach an agreement with Professor Felton before the slug entered his cranium and fragmented, shredding his brain into useless jelly. We regret any unfortunate inconvenience to the Professor, but once again, never intended to kill or harm him in any way."

Had you read the previous article

[MrResistor]

you would know that Felten intends to fight and that Princeton will back him up. As was mentioned in another reply, there are other parties involved (Xerox would be my guess, but maybe one of the other universities involved) who don't feel that exposure in such a case would be to their benefit. Again, Felten intends to fight, and he's smart enough to pick his battlefield.

Re:The danger of laws that are too broad/vague

[Gorobei]

Quoting from the threatening letter:

Therefore, any disclosure of information that would allow the defeat of those technologies would violate both the spirit and the terms of the Click-Through Agreement (the "Agreement"). In addition, any disclosure of information gained from participating in the Public Challenge would be outside the scope of activities permitted by the Agreement and could subject you and your research team to actions under the Digital Millennium Copyright Act ("DCMA").

The initial claim is violation of the "click-thru" license. These guys may be able to back-track by claiming that that was the main point of the letter. The DMCA second claim may stand based on the phrase "good faith:" if you violate the click-thru to get the datasets, you can't be acting in good faith.

Sad, but I think the RIAA will be able to weasel their way out of this one.

it's a 5!

[sparkane]

hi Ole, I was going to mod you up to 5 but the /. mod sys is busted.

So here's your final point, verbal style..

sparky

politics vs. philosophy

[Once&FutureRocketman]

Or, of course, you could consider the even larger issue of how to coerce things such that those two questions get closer to becoming the same..

Yes, that's a valid point to raise. But now you're talking about practical politics, rather than philosophy. My post was an attempt to frame the question philosophically. That's important, but frankly relatively easy to do. Bringing the reality of the situation into line with the theory is a much harder problem, and I don't have any answers for you. Sorry. :(

come on, our democracy pretty much works and it works historically better than any other system ever created...

This is pretty much true. Historical perspective is a great treatment for despair over the state of the world. However, I feel (as I believe you do) that better still isn't good enough. As I see it, we (humans) are doing better than we ever have before in history. However, we also have vastly more power now than we ever did before, which equates to an ability to screw things up on a grander scale than ever before (or, possibly, to achieve a near-Eden, if we do it right). I think human civilization is balanced on a razor's edge: if we fall off one side, we will be destroyed by war and/or ecological collapse; fall off the other side, and we descend into tyranny (with the same ultimate consequence; for all that our environmental record in this country is bad, the record of totalitarian states is much, much worse). If we walk the edge successfully, we may achieve a new, healthier and (hopefully) more stable state as a species.

Good luck to us.

Re:Court date

[krlynch]

The Civil Rights Act had less to do with activists protesting (activists are generally looked upon as a fringe element), and more to do with innocent non-activists being killed, maimed, raped, or exploded because of the color of their skin. It's hard to argue that there is no problem when little girls are killed in church basements because a group of racists decided to blow up the building.

Re:Potential RIAA counter-argument

[krlynch]

There are many forms of research that are unpublishable. But generally, you have to agree to those restrictions in contract ahead of time. If you don't agree, you don't get the money to do the research. There are exceptions to this rule, wherein you can be kept from publishing scientific research without prior agreement, but I'm not a lawyer, and I don't know enough about what they are to comment. But most of these types of research are only done under high security at government installations by government employees who have agreed in their employment contracts to not discuss the work and have been given security clearances that carry severe criminal penalties for violation.

If it came to a court battle over this, the contract angle would likely be the point the SDMI folks push: that the research group agreed to the "click through" contract. If anyone of the group agreed to it, they are probably all bound by it, because the agreer would have an obligation to his collaborators to reveal his contractual bonds. And the argument that "they didn't accept the money so they aren't bound" may not hold up: you can freely release the other party from any contractual obligation, but that doesn't free you from your obligations. Again, I'm not a lawyer, and I haven't read all of the contract and I don't know how Felten et.al. obtained the files, so I'm just blowing smoke....

My Letter to the RIAA

[seaan]

This is the letter I've sent to the RIAA. I'm still composing the congressional letter, but will post it here upon completion. Before they were messing with my principles, now there are messing with my profession!

As an expert in applied cryptography and hardware security systems, I am greatly concerned by the tactics used by the SDMI and the RIAA concerning the Princeton research paper. It is quite clear to me that even if SDMI used conventional cryptographic algorithms, there would still have been an attempt to stifle the academic research, under the pretense of it being a "copyright circumvention device prohibited by the DMCA".

This type of action would certainly cause me to think twice about publishing security issues, even if it was only vaguely related to copy protection schemes. Since I deal with banking level security, these actions may ultimately effect the safety of your personal bank accounts. This is not an exaggeration, as I have already discovered and help correct two severe flaws in smartcard wallet protocols (VisaCash used in the Atlanta Olympics and EMV used by several million users in Europe).

This prior restraint may be (and probably is) exactly what the RIAA, MPAA, and SDMI want; but it is unconstitutional and should be illegal. I will be informing my local congressional representatives and appropriate congressional committee members of the impact toward my profession.

Excellent...

[mad_clown]

Man, upon reading the article associated with this story, I have to admit, I got quite a chuckle... It's good to see someone being just as sneaky and underhanded as the RIAA for once... but this time the sneakiness and underhandedness is getting aimed against the RIAA and the DMCA. I hope to god the courts can look past 2600's media image as a "hax0r crax0r" organization, and listen closely to what they, and other free-speech advocates are saying.

As a historian of modern Russia, Stalinism is one of the first things that comes to my mind when I hear about organizations trying to stifle free speech... *especially* academic free speech. While in no way am I comparing the United States government to that of Stalin, we have to be oh-so-careful... because in the future, such comparisons might not only be appropriate, but they might be outlawed...

Kudos to Prof. Felten, 2600, the EFF, and all others who're fighting this kind of drivel. If you haven't already, write your representative.

Re:Nonesense

[vslashg]

Worse yet, the slashdot audience is now saying the man's a genius for caving in to the RIAA, when the article mentions no benefit from the spineless wonder. The only place it's mentioned is in the Slashdot teaser! (And that's good ol' slashdot spin...)

Did you actually READ the article? It said:

Felten's decision can be seen as eminently savvy -- and not because he chose to avoid litigation. His actions, along with the shortsighted bullying tactics of the RIAA, set a precedent that could potentially undermine the widely disparaged DMCA.

That's it! I'm fed up!

[sdo1]

We need a Million Geek March to protest this stuff!

Also to be billed as the world's first megabit sneakernet.

-S

Re:Had you read the previous article

[mikethegeek]

"you would know that Felten intends to fight and that Princeton will back him up. As was mentioned in another reply, there are other parties involved (Xerox would be my guess, but maybe one of the other universities involved) who don't feel that exposure in such a case would be to their benefit. Again, Felten intends to fight, and he's smart enough to pick his battlefield."

Which is what he's done... Instead of publishing the paper and then waiting for the RIAA to sue him on in the venue of THEIR choosing (and we know it'd be the so-called "judge" Kaplan or some other judge who was from an AOL Time Warner law firm), he now holds the cards...

The RIAA can't sue him because he complied with their "cease and desist" threat note. But he can sue them for using illegal threats and intimidation to deprive him of his civil rights!

This means that Felten gets to CHOOSE the venue and the structure that the case is argued in. Remember, in the 2600 case, the MPAA steamrolled the whole thing through as quickly as they could so as to deny 2600 and the EFF ANY chance to adequately defend themselves... As if that was possible with so obviously a prejusticed "judge" as Kaplan in charge of what became nothing more than a show trial. Kaplan's court was so unethical that a noose might as well have been hung over the defense bench in preparation for the "hangin" after the trial.

In one of my posts in the previous stories, I mentioned that Felten might be able to pull an "Infineon" on the RIAA, and strike back against them using the RICO statute. Infineon is close to breaking Rambus, because the courts have allowed them to investigate fraud and corrupt practices using the RICO statute.

Given the cartel nature of the RIAA/MPAA structure, it may be possible (IANAL) to do something similar to them over their obvious use of intimidation, threat, and possible extortion. Felten created a "smoking gun" by withdrawing his paper, and thus establishing the fact that he WAS intimidated.

Ah... the media

[IgorFL]

Nothing is greater than scrutiny by the media. Let's face it... more people will actually try to understand Prof. Felten's research now that it has a certain aura of prohibition around it. The RIAA is doing a great service to all of us by drawing attention to themselves constantly.

RIAA should push their legitimate case instead.

[kalleanka2]

I think the RIAA was right about napster and some other cases, it was more than anything else a tool for theft. Not just individuals and the public has rights, businesses has rights to.

On the other end they must recognise that the public and individuals also has rights if they are going to be able to get some sympathy at all. I think they fail to do so over and over again with this kind of clearly misdirected attacks, if you tell people to hack something you can't bitch on them for doing so.

For anyone who might be interested...

[Spanishlnquisition]

There's some good reading over at the EFF "Intellectual Property: MPAA DVD Cases" Archive [eff.org].

Dig in. ;)

--

SDMI & RIAA are Backtracking

[scvolz]

On the RIAA Website

Statement by Matthew Oppenheim on Professor Felten

The Secure Digital Music Initiative Foundation (SDMI) does not - nor did it ever - intend to bring any legal action against Professor Felten or his co-authors. We sent the letter because we felt an obligation to the watermark licensees who had voluntarily submitted their valuable inventions to SDMI for testing.

For the record, the Recording Industry Association of America, one of the founding members of SDMI, strongly believes in academic freedom and Freedom of Speech. This issue, however, is about the competing interests of scientists - those of the watermark technology companies that have invented new technologies and those of Professor Felton who seeks to describe how to circumvent those technologies. To that end, we have encouraged Professor Felten and the technology companies to resolve this matter. We leave it in their hands to do so.

Further questions should be directed to Verance at 858-677-6522

So let me get this.....

[Anonymous Coward]

The RIAA, the same RIAA who lately has been under investigation of both the Federal Trade Commission and Congress for price fixing CD prices and for marketing violent lyrics and images to children (after promising Congress they'd clean up their act "We don't need laws...we can self regulate") now is using the DCMA to stifle legimate academic freedom of speech. It seems to me at least that they want it both ways. They want the government to protect THEM from the rest of the world, while at the same time they feel thet the rest of the world doesn't deserve protection from THEIR nasty tactics! What I can't understand is why Congress and the courts are so blind to their hypocracy. Is Hilary Rosen THAT good in bed?????

Protests @ Court DO Have Purpose...

[acroyear]

No, it shouldn't (and usually wouldn't) change the outcome of the case itself; justice being blind and all that.

But media attention to a case where the law is enforced, even it its morally the wrong thing to do, CAN have an impact on Congress changing the law.

The best example in the last 10 years was the Credit Union law. Credit Unions were expanding beyond their "common ground" in order to survive if their original common group was lost for whatever reason. The banks sued, won the case and all appeals to just shy of the Supreme Court...

...Then congress and Clinton, under major lobbying and petition efforts by the Credit Unions and their members, passed a law that pretty much gave the Credit Unions the right to exist as they have been, ending the case right on the spot.
--
You know, you gotta get up real early if you want to get outta bed... (Groucho Marx)

Re:The problem with overturning the DMCA

[general_re]

No, no. You should have quoted the whole paragraph, to wit:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (emphasis mine)

It seems clear that treaties were intended to supersede STATE laws and constitutions - as they should, otherwise you have 50 separate foreign policies. But they do not supersede, and cannot supersede the Federal Constitution. See Reid v. Covert 354 US 1 (1957), for example...

Nonesense

[rw2]

Typical Salon shalow thinking...

Thanks to the Felten fiasco, the EFF and 2600 Magazine have a new weapon in their legal arguments against the loathed copyright law: The RIAA has now, in effect, used the DMCA to stifle academic research. As Roger Parloff and Charles Mann pointed out in Inside.com, even the authors of the DMCA didn't intend for this to happen.

The point of the DMCA, in the eyes of those who authored it, is not just to stifle hackers, but also to prevent academic research. Academic research is, after all, absolutely as dangerous to their property as Captain Crunch doing the same work. They aren't going to care one whit whether the research that millions of script kiddies are benefitting from was done at Princeton or the food court at the local mall. The fact is, they are still owned. And by their logic the monetary losses start at that moment.

I'm sure they'll explain that in detail in court.

--
Poliglut [poliglut.com]

Re:Stand up for yourself

[leperjuice]

Have I been trolled? Well, I'll bite anyway...

I trust that you, like myself, have given money to the EFF [eff.org] and the ACLU [aclu.org] (to name a few worthy organizations). (Note that I find it somewhat ironic that the ACLU once gave Hillary Rosen an award, but I digress...)

If you haven't then everything you say is nothing more than posturing. It it very easy to talk big and to tell these people to stand up for themselves, but not so easy to do so when faced with the RIAA's thundering herd of lawyers.

A legal battle against a major corporation is almost guaranteed to be very costly, and while paying US$50k to a team of lawers may be a pittance to BigCorp (especially when protecting a business interest), most private citizens do not have anywhere near that kind of capital to spend on a lawsuit that they have nothing to gain from (financially).

Groups like the EFF and the ACLU help to level the playing field by leveraging the social goodwill (and their associated dollars) of millions. They help provide for the defense of those who otherwise would have to go without. But there is no guarantee that they can help you (or even that you'll win) and you're still spending time dealing with the case (the lawyers get paid for every hour they're in there but you, as the defendant, probably don't). So even fighting may not get you anywhere...

So give [eff.org] money [client-mail.com]. If you already have, then I applaud you. If not, then perhaps you should think about the practical implementations of your noble goals.

Of course, if you're too young or broke to give, that I understand as well....

Re:Nonesense

[HamNRye]

I also love the presupposition that "People in Universities do Research, the same guy on a home computer is a vandal." D e C S S was about research, just not by some professor in the stifling halls of academia.

Most of us computer geeks (the good ones at least) have maybe a year or two at college before we were snapped up by a ravenous job market. So why live with this absurd notion that a princeton professor is doing research and Alan Cox has a hobby.

Worse yet, the slashdot audience is now saying the man's a genius for caving in to the RIAA, when the article mentions no benefit from the spineless wonder. The only place it's mentioned is in the Slashdot teaser! (And that's good ol' slashdot spin...)

The Princeton researchers are still as spineless today as they were yesterday.

Re:Court date

[homebru]

The Civil Rights Act of 1964 was brought to pass as one of the earliest actions of President Lyndon Johnson as a direct result of his having been embarrassed in some hick town in the south when his family's black/colored/negro staff were (in his presence) refused the use of public restrooms and forced to squat in a ditch beside the highway. According to the rules of "good old boy" politics that Johnson grew up in, the insult passed up to him personally and could not go unanswered.

Protests and marches and songs are all very colorful, but for guaranteed action, all you need to do is see that someone personally humiliates the future President of the United States.

I did not make this up. Put aside the "official" history books and go read the history of Lyndon Johnson.

Radio stations will play National Anthem at 10am

[Rares Marian]

Several radio stations have been contacted. Also dmcasucks.org asks you to Honk Your Horn at 10 am. Even if you're in your driveway.

Finally part of the proceeds from the book "DMCA go to the EFF.

The relevant link is here:DMCA by Marcia K Wilbur [barnesandnoble.com]

The book has gone from a 372,000 give or take 100 sales rating to 61,840 since December 2000. No. 2 bestseller right behind Jessica Litman's Digital Copyright.

If you need a discussion about the topic, openlaw.org's dvd-discuss list, slashdot archives in the Your Rights Online topic, and Jessica Litman's book do a pretty good job.

If you want to know how we got here and what's at stake, DMCA includes comments questions and answers as well as a copy of the DMCA, former President Clinton's comments on the DMCA as he signed it, and a history of copyright law.

Dubious tactic

[clem.dickey]

To use a basketball analogy, Salon seems to think that Felten falling down will convince the referee to call his opponent for a foul. Refs fall for that, sometimes. I'm not sure a judge, who has more time to deliberate, will do so. But just in case, let me add this:

"I have cures for war, plague, pestilence, even psoriasis. Too bad the world will never have them. I must withhold them all because the details of those cures (when XORed with a certain bit string) happen to describe a decryption device which is prohibited by the DMCA."

what the heck is up with moderation?

[criticalrealist]

Why is every post suddenly a 5? Why is it that when I use all 5 of my moderator points to mod 5 different posts down in this thread as "overrated" it has no discernible effect whatsoever except to expend my mod points?

It seems like /. has given everyone mod privs, or maybe a super-moderator is going around marking the first 20 posts to every thread as a permanent 5.

What gives?

Acedemic Troll

[kel-tor]

So the Prof's statement yesterday turns out to be a magnificent troll on his part, sparking emotions and discussion. /applaud

Be on time..

[PopeAlien]

.. Regardless of the merits of a courtday protest, if you want to be there, you should go at 10:00 am, not on your lunch break. Unlike the court dates before, this one consists of a 20 minute argument from the 2600 side, and a 30 minute argument from the other side - It'll be over quick.

The 'other side' gets more time because there are two of them - MPAA gets 20 minutes, US government gets 10 minutes.

This info comes from the 2600 radio show Off the Hook [2600.com].

I'd go..

[PopeAlien]

..Its just that, well, that'd be outside right? like in the sun? Its hard to see my monitor in the sun..

How 'bout if I just send email? I'd hate to mess up my CRT tan..

Re:The problem with overturning the DMCA

[corporate zombie]

Nope. The Supreme Court has ruled several times that Congress can't use treaties to abridge the Constitution.

My apologies for not remembering exact case reference but I believe I came across that info while going through Cornell's most exellent Supreme Court Collection [cornell.edu].

Enjoy. -CZ

Essay on the recording industry

[hillct]

There's a wonderful essay by Harvey Reid, on business practices in the recording industry, which has shaped my opinion on many of these issues. It is now a bit old and may be slightly out of date at this point, but it's a good read. ASCAP & BMI -- Protectors of Artists or Shadowy Thieves? [woodpecker.com]

-- CTH

---

Gandhi

[Kasreyn]

The world would never have cared much about the condition of India if Gandhi hadn't drawn out the wrath of the oppressors and goaded them to commit atrocities, thus generating tons of bad press for them.

Think about it. When in human history have the people moved to crush a large corporation or nation? Only when they finally have appalling evidence thrust under their noses of its crimes.

Let's see in what way we can publicize DMCA in a way non slashdot-freedom-advocates can understand. Their multitude of voices can silence this if they look up from their TV's long enough.

-Kasreyn

Re:Court date

[rppp01]

No, the protests did do some good things. I believe the Civil Rights Acts were the result of protests by Civil Rights Activists and organized protests.

Legal Maneuvering at its Finest...

[Bonker]

Yesterday, I was rather dissapointed to read the story and had already fixed the researchers in my mind as having 'knuckled under' and ready to debase themselves in favor of the RIAA and their megabucks. When I read the story today, I realized that the system *does* work for those who know how to use and abuse it. I think it's still quite a tossup as to wether anything will actually come of this, but it's nice to see that the bowing down on the part of the researcher was a tactic and nothing more. Keep fighting the good fight, guys!

Re:Just another way to lose.

[mikethegeek]

"See, the RIAA doesn't even have to go to court to be effective. It just has to threaten. And, last I checked, threatening legal action is perfectly legal pretty much everywhere. The RIAA knows that the mere threat of legal action is enough to shut most everyone up."

That is actually NOT true! It's NOT legal to threaten legal action for the purposes of intimidating people from doing legal things. And there is over 200 years of case law and precedent supporting the right of Felten to publish his research. But then, there were also specific exemptions within the DMCA itself that would allow DeCSS for it's intended purpose, but that didn't stop the lawless "judge" Kaplan...

Intimidation and threat of the use of of frivilous legal action as a weapon to deprive someone of their civil rights is legally NO DIFFERENT from writing a note that says "publish that and we will have your legs broken"

Remember, the DMCA is an untested STATUTORY law that largely conflicts with CONSTITUTIONAL law. It wasn't tested because Kaplan refused to test it (it wouldn't have been in his former and future? clients best interest). Somewhere down the line it WILL be tested, and at the very least, it will be weakened considerably, if not outright rejected.

The RIAA's threats at Professor Felten (and his backing down) are proof that when they passed the DMCA, Congress ESTABLISHED a law "abridging free speech".

This wasn't more apparent?

[Shoten]

I had a profoundly strong feeling that this was the case. How often does someone of such stature, education, and wisdom just bow down immediately when challenged in this way, particularly when they are being bullied into failing to share information and educate the public? The word that came to mind was "martyr." :)

Well, the RIAA wanted to be able to control information...let's see how they like what happens when they get what they want

Re:The problem with overturning the DMCA

[SomeoneYouDontKnow]

I'm not blaming anyone outside of the U.S., since no one is forcing our government to sign these treaties. I may have been unclear as to who is doing what in my earlier post, but I understand perfectly well that many of these things are heavily influenced by our own government. That's what I was talking about when I referred to government agencies doing this to get powers they can't normally get. What I mean is that they do this because it's easier to get the Senate to ratify a treaty than for a bill to go through Congress. Then, once the treaty is ratified, its proponents will use it as a rationale for passing whatever pieces of legislation they can cook up. But don't hold everyone but us Americans blameless for everything. The latest stir over the cybercrime treaty involves European nations lobbying for a ban on racist speech, something that's clearly unconstitutional here in the U.S. but part of the laws in other countries. As I said earlier, that's fine for them, and there's nothing wrong with harmonizing laws across national boundaries, but this can only be taken so far. And FWIW, the post was not intended as flamebait for whoever modded it as such. Treaties are treated as sacred things in many instances, things that we must do whatever it takes to live up to, no matter how much it turns our stomachs to do so, and the people who draft them know this. Perhaps that outlook should change. If a treaty turns out to have bad consequences for us as a nation, then it should get dumped just like a bad law.

Court date

[markmoss]

Don't organize a protest, it will just make you look like wackoes infuriated because your channels for stealing music are being restricted. Protests did not work in the 60's and they won't now. What you should do is find some independent musicians (not signed with any RIAA member) and get them to go down there and demand to be heard -- make it quite clear that one effect of the RIAA's demands is to make distribution of _competing_ music more difficult, and the court should not allow itself to become an instrument of monopoly...

Re:Just another way to lose.

[Dimensio]

Actually, I was under the impression that using threats of legal force (without the intent of filing) as a scare tactic can be construed as barratary, which is an actionable offense.

Of course, IANAL and I don't know all of the legal nuances involved, but I do know that running around threatening legal action just to shut people up isn't always a good idea if you do decide to make good on one of your threats.

Hmm, seems like wishful thinking...

[catpyss]

I like that the Salon article presents a different view of this case, but I believe this is more 'wound-licking' on the side of free speech. If there is an industry that has more than enough resources to avoid the simple formality of appearing "anti-academic", it is the entertainment industry.

More likely than not, the RIAA (if even presented with this at all) will trumpet the unpublished paper as a victory for the DMCA. The DMCA in this case has been used to protect corporate interest/intellectual property. So a professor got bullied, who cares if entertainment is so vital to the economy? Such rhetoric is what really matters in these situations. Money will always win over free speech.

As a disclaimer, I am a musician that gives away all of my merchandise freely. That includings CDs, tapes, clothing, and anything else we do. We record, manage, and distribute our work and performances. Interested? mp3.com/leftunsaid [mp3.com] and freespeech.org/leftunsaid [freespeech.org].

I would like nothing more than the collapse of huge industry trade groups, but we must realize that nothing short of convincing the masses that the system they are used to is wrong will fix things. Etertainment existed centuries before people charged for it, but its strange to think that in this day and age. Thanks.

Just another way to lose.

[137]

From the Salon article:

SDMI and the RIAA were hoping to prevent the professor from publishing legitimate research by invoking the Digital Millennium Copyright Act. At first glance, they succeeded.

The article then goes on to explain how the RIAA, who managed to scare our crypto friends away from publishing their work, is actually its own worst enemy, since its strongarm tactics show how little it cares for anything but its own bottom line. Evidently the hope is that, if the RIAA looks bad enough, the courts and legislatures will realize how lousy they are and how prone the DMCA is to corporate abuse, and take action against them.

Folks, we are not going to win this one simply by hoping the RIAA and DMCA will look so bad to the courts and lawmakers that they'll get thrown out. The RIAA is an association of businesses, and businesses have entire departments devoted to smokescreening tactics like this. The Salon article shows this plainly:

On Thursday, Oppenheim [the RIAA VP of business and legal affairs] released a backpedaling statement: "The Secure Digital Music Initiative Foundation (SDMI) does not -- nor did it ever -- intend to bring any legal action against Professor Felten or his co-authors. We sent the letter because we felt an obligation to the watermark licensees who had voluntarily submitted their valuable inventions to SDMI for testing ... The Recording Industry Association of America, one of the founding members of SDMI, strongly believes in academic freedom and freedom of speech."

See, the RIAA doesn't even have to go to court to be effective. It just has to threaten. And, last I checked, threatening legal action is perfectly legal pretty much everywhere. The RIAA knows that the mere threat of legal action is enough to shut most everyone up. What we need are people that refuse to cave, people that will see the matter through to court or speak before our legislatures.

We need to take away the RIAA's ability to threaten. We can't do this ethically by refusing to give them access to our courts -- everyone should be given the right to sue, even frivolously, since the risk of people being denied access to our justice system is too great otherwise -- but we can do it by taking away their favorite tools (DMCA, dishonest licensing schemes, &c). Folding in the hopes that you can make the bully look bad is a losing strategy.

Re:Just another way to lose.

[Hilary Rosen]

where is the educational sectors fat, rude loud mouth in a wheelchair?

Oxford.

All of them.

Disclaimer: I went to Cambridge. Dislike for Oxford is a requirement for graduation.
--

RIAA/DMCA/Etc.

[Anon-Admin]

"Ohh look, There is a rabbit! Ill shoot it! (Bang)
OOPS sorry that was my foot..."

I was wondering how long it would be before they shot them selves in the foot with it.. ;)

Don't just sit there reading Slashdot!

[Anonymous Coward]

Sometimes the court system works like it's supposed to. Sometimes it doesn't. This Supreme Court has made LOTS of 5-4 decisions, and it's hard to say which way it will go on any given case.

That's why we have to make this a legislative issue RIGHT NOW, before the law gets any older, before people become even more complacent with its effects.

WRITE YOUR CONGRESSMEN!

Take an hour or two to draft a one-page letter (not an email [slashdot.org]) to your House Representative and your Senators. Present the fair use and free speech issues clearly and as concisely as you possibly can. Be as non-technical as possible. Use examples from the news where this law has affected real people (other than music pirates). Include copies of relevent articles from mainstream publications like The New York Times. And proofread your letter, then let a friend proofread your letter.

As has been noted on Slashdot before, you can look up contact information for Senators by state at http://www.senate.gov/ [senate.gov] and for House members by state at http://www.house.gov/writerep/ [house.gov].

NPR had a nice bit on this

[Anonymous Coward]

on today's Morning Edition. [npr.org]

Potential RIAA counter-argument

[acb]

Are there any types of research which are recognised (by statute of law or legal precedent) to not be legitimately publishable, for whatever reasons (national security, public endangerment, or whatever)? Any categories which are automatically classified or whose distribution is restricted by law? If so, the RIAA could claim that as a precedent. After all, their argument is, the future of the U.S. economy depends on the DMCA.

Re:Nonesense

[msuzio]

I don't think anyone is claiming that the backers of the DCMA actually care about academic freedom (or anything but money, let's be serious). However, the harm to their public face by being clearly seen to be squashing these things is pretty real.
It's one thing to push around hackers... the public still has little to no sympathy for the misunderstood minority they represent. But a lot more people can understand it when they're told "hey, the RIAA wants to stop research. What's the deal with that?".

It's all about bringing this out into the open, clarifying what the stakes are, and winning some real "hearts and minds" in this fight. Joe Six-Pack could care less otherwise.

we need more "opressed"

[Lumpy]

Only problem is that the RIAA gestapo will get smarter. they won't leave any bodies like they did in this case.

actually, the more I look at it, the RIAA looks more and more like organized crime... you pay to become members, they take your rights, and you have to give them a percentage of your profits for their protection. then if you break ranks they punish you. and in-order to keep everyone in line they bully and make threats, and do assinations (character assinations that is)

and our government supports this......

exactly why am I a law abiding citizen again?

Re:Felten's at Princeton though, they can afford

[Royster]

Or maybe there are other entities involved such as Xerox which don't have as great an interest in academic freedom as does a university. It not just Felton who is the author of this paper.

Jiu Jitsu

[werdna]

I made similar observations yesterday when we first got the news. I feel more strongly today that this was the correct solution.

I disagree strongly with those who expressed disappointment with Felton's decision. While it is certainly true that Felton's case is awesomely strong if he were sued, both from the heart and on the merits, and that it would be a joy to see a DMCA anti-circumvention case with a highly sympathetic defendant, little would be gained. There are enormous constitutional issues here, and significant Copyright policy questions.

Had Felton continued, he would likely have argued: (1) there is a crypto research savings clause; (2) there are other defective issues with the plaintiff's case; and (3) even if there weren't, the first amendment would preclude the issue. 1 and 2 are close to drop dead wins for Felton in this case, and for that reason, the Courts will never, ever, ever reach the constitutional question. The most likely result is that the defendants would have prevailed, with the useless judicial precedent holding that the crypto research exception is an exception for crypto research.

Felton's case isn't a good test case, precisely because its a really, really good case. But by falling on his sword and LOSING a case he is likely to win, he does two enormously important things:

(1) Earns FOR FREE political capital for the anti-DMCA movement, providing opportunities for the handfull of Congressmen and Senators already leaning that way, and providing extraordinary lobbying fodder;

(2) Earns FOR FREE excellent coverage that Kathleen Sullivan can use to her benefit in the DeCSS hearings.

As a wonderful side benefit, the spin is amazingly beneficial.

No, RIAA, quite like past Republican Congressional majorities, has been its own worst enemy. By not knowing when to stop and regroup, it has set the stage to steal defeat from the jaws of victory. Even people who are rooting for RIAA principles, indeed, even strong IP advocates such as myself, have turned 180 degrees against them. They have taken, taken, taken and gained advantages they didn't deserve. Now, the pigs will pay for their avarice.

Re:The problem with overturning the DMCA

[Stonehand]

It depends on how you interpret Article VI, paragraph II, of the US Constitution.


This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...


One can probably make a very good case that this puts treaties on an equal footing as the Constitution itself -- IOW, if a treaty requires replacing our current system with a hereditary monarchy and the Senate was demented enough to ratify, then that might be perfectly legal.

The problem with overturning the DMCA

[mikej]

The DMCA is the US's implementing language of the WIPO treaty. If the DMCA were to be ruled unconstitutional by the Court, congress would be under treaty obligation to draft another piece of legislation doing exactly the same thing. I've heard many people talk about the companies that bought the DMCA, but it's been a long time since I heard someone correct them: Those companies bought the WIPO treaty, and got the DMCA as an added option.

Re:Felten's at Princeton though, they can afford

[stang]

Problem with this is, they won't just sue Princeton - they'll sue Felten personally as well as his grad students who worked on it who I'm SURE wouldn't have been able to handle the cost, though the ACLU would most likely have picked them up.

Felten is probably covered personally -- here in Florida, the university will provide legal aid to any professor who's sued as a result of their professional efforts. I dunno about grad students, but I'd be suprised if the university didn't cover 'em, given that they were working on directed research.

--

Not necessarily True

[BierGuzzl]

Just because the Salon article says this is a victory for free speech doesn't mean that it is. We have no assurances of how this is going to affect the May 1st court date for 2600 and salon most definately doesn't constitute a legal opinion! We shouldn't be so blind as to happily walk along believing that when our rights are trampled that this is a good thing! What are we, Lemmings?

I Got a letter saying I violated the DMCA today..

[jon_c]

I don't want to post the whole cease and desist, but i'll post the thing about the DMCA.. This is bassicly Live365.com saying they don't want my streamripper program to h4x0r them...


Millennium Copyright Act

The Digital Millennium Copyright Act ("DMCA") prohibits the circumvention of "a technological protection measure that effectively controls access to a work protected under this title." 17 U.S.C. * 1201(a)(1)(A). As previously noted, Live365.com has designed its web site and related software to ensure that the streaming music it provides on its Internet radio stations complies with the provisions pertaining to the statutory license to publicly perform sound recordings under the Copyright Act. In so doing, Live365.com has taken precautions to preclude users from recording or storing transmissions of its Internet broadcasts. The player software designed to be used with Live365.com does not permit recording and, in fact, is designed to prevent it.
In contravention of this precaution, you have created software which enables users to store these broadcasts. This has circumvented a "technological measure" which "effectively controls access" to copyrighted works. See RealNetworks, Inc. v. Streambox, Inc., No. C99-2070P, 2000 U.S. Dist. LEXIS 1889, at *18-19 (W.D. Wash. Jan. 18, 2000). Such manipulation of Live365's protective measures constitutes a violation of the provisions of the DMCA.


They also have like 8 other law they say i'm in violation of.. I just mailed the ACLU, maybe I should try the EFF as well? I can't really afford a lawyer...

-Jon

This could work out

[Animats]

A key issue here is that First Amendment law has historically required that any permitted restrictions on speech be unambiguous, to avoid a "chilling effect" on constitutionally permitted speech. This is one of the basic legal arguments against regulating pornography. The Supreme Court has struck down ambiguous laws on First Amendment grounds. When they have done so, they usually have declared the entire law unconstitutional. The Court's position is that it's not their job to debug Congress's output in the First Amendment area. It's Congress's job to stay within their constitutional authority.

The Court has historically gone a long way in this direction where technical information is involved. The Progressive case, regarding disclosure of how H-bombs work, was decided in favor of free speech, despite heavy objections by the U.S. Government that publishing the trick that makes H-bombs work was dangerous. And this was despite "born secret" legislation regarding non-government discovery of nuclear secrets.

This could lead to some very interesting litigation. It might even lead to many of the provisions of the DMCA being declared unconstitutional.

Re:Court date

[NumberSyx]

Don't organize a protest, it will just make you look like wackoes infuriated because your channels for stealing music are being restricted. Protests did not work in the 60's and they won't now.

I have to completely disagree with you here, civil disobiedance is an American tradition, starting with the Boston Tea Party. I beleive the protests of the 60's were very effective, do you really beleive Nixon would have pulled out of Vietnam had there not been rioting in the streets ? and Kent State was in vain ? or Martin Luthor King accomplished nothing ?.

In recent times protests have not been effective, because the government has gotten better at dealing with them. They learned from the invasion of Grenada and later Panama that to control the flow of information to the media is a very effective way to control public opinion. We saw a glimer of how effective this can be during the WTO protests in Seattle, the news media was completely oblivious to the fact that the police were using rubber bullets and tear gas on protestors until it was reported through alternative means, such as the Internet.

As a side note, I think it is ineresting that protests against the status quo, such as the ones in Seattle, are meant with brutle force, while those supporting the status quo, ie both the supporters of Bush and Gore (yes, they both represent the status quo) in Florida during our month long Presidential election are pretty much left alone.

Jesus died for sombodies sins, but not mine.

Re:Speaking as a lawyer

[Once&FutureRocketman]

Fuck all the ethical punditry. its the law that counts here.

I won't argue for a moment that most of the usage on Napster was legal under current laws. However, the real issue regarding copyright and IP is larger than "what is the law now?". The proper question is "what should the law be?". When circumstances change such that the cost of enforcing a particular law (whatever its merits under previous circumstances) includes the destruction of fair use rights, freedom from unlawful search and seizure, and freedom of speech, is the old law still good law?

If it becomes necessary to create a police state in order to enforce a particular law effectively, then there is a problem with that law.

This line of logic also applies to the issues of internet censorship and the drug war.

a bit on clueless corporate types

[connorbd]

What I don't get about this Hack SDMI thing...

Why is it that corporate types are not clued into the following facts:

a) Geeks, given an opportunity such as this, are generally not inclined to obey instructions to "Do our dirty work and then fall in line, you subversive m0?#3rp#uK3r$", and in fact are just as likely to take you up on your challenge without telling you, and

b) academic stuff really tends to be better done in the open (a blind spot shared with many, many government types over the millennia).

I guess it's a bit naive of me to wonder about this, but it really hurts to get myself into a frame of mind so blinded that I can't see the logic in cutting off other's access to maintain an edge. (After all, I would think the dubious success of Mutually Assured Destruction would be enough to convince even the most hawkishly secretive politician that secrets are more trouble than they're worth, but this is a terribly weird and tasteless example...)

And I do sometimes wonder whether it ever occurs to the entertainment-industry types that you can hit a point of diminishing returns when it comes to money vs. control. But they obviously haven't learned the Divx lesson, have they?

/Brian

The danger of laws that are too broad/vague

[netjeff]

This is another example of how laws that are too broad/vague have an annoying side effect of suppressing innovation (to coin a M$ buzzword). You'll see in this section of DMCA [cornell.edu] that if things went to court the researchers could probably provail without even invoking the constitutionality of DMCA:

1201(g)(4) Use of technological means for research activities. - Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to -

(A) develop and employ technological means to circumvent a technological measure for the sole purpose of that person performing the acts of good faith encryption research described in paragraph (2); and

(B) provide the technological means to another person with whom he or she is working collaboratively for the purpose of conducting the acts of good faith encryption research described in paragraph (2) or for the purpose of having that other person verify his or her acts of good faith encryption research described in paragraph (2).

In this case, there is a clause buried deep in the law that seems to allow the researchers to publish, but because the initial sections of the law are so broad it's easy to start an expensive lawsuit even if the company might loose in the long run. Also in this case, the phrase "Notwithstanding the provisions of subsection (a)(2)" in 1201(g)(4) above is open to interpretation, and it is in section (a)(2) at the beginning of the law that is very broad.

Re:Just another way to lose.

[Prior Restraint]

The RIAA knows that the mere threat of legal action is enough to shut most everyone up.

Here's where things get complex. The DMCA's creepiest element (IMHO) is that it turns copyright violations into criminal violations as well as civil. Herein lies way to salvation. If the RIAA can threaten Professor Felton with civil liability, one can argue the DOJ could threaten him with criminal liability. Since the government is coercing him into silence with threats (as opposed to actions), the DMCA creates a prior restraint on free speech, which is unconstitutional.

Re:The problem with overturning the DMCA

[Prior Restraint]

If the DMCA were to be ruled unconstitutional by the Court, congress would be under treaty obligation to draft another piece of legislation doing exactly the same thing.

I'm afraid this is wrong on two counts.

1. As the EFF points out in its briefs, the WIPO treaty isn't quite as Draconian as the DMCA. Congress could write something less harsh and still meet its treaty obligations.
2. Even if the WIPO treaty were as bad as the DMCA, Congress can't use treaty obligations as an excuse to violate the constitution. For example, could Congress establish a national religion just because of some international treaty? I think it's more likely they'd be forced to bow out.

Did not intend to bring legal action?

[sdo1]

The salon article states:

On Thursday, Oppenheim released a backpedaling statement: "The Secure Digital Music Initiative Foundation (SDMI) does not -- nor did it ever -- intend to bring any legal action against Professor Felten or his co-authors. We sent the letter because we felt an obligation to the watermark licensees who had voluntarily submitted their valuable inventions to SDMI for testing ... The Recording Industry Association of America, one of the founding members of SDMI, strongly believes in academic freedom and freedom of speech."

The what the heck is this...? The letter sent to Professor Felten (mirrored on http://cryptome.org/sdmi-attack.htm [cryptome.org]) states:

...and could subject you and your research team to actions under the Digital Millennium Copyright Act ("DCMA").

and...

Such disclosure is not authorized in the Agreement, would constitute a violation of the Agreement and would subject your research team to enforcement actions under the DMCA and possibly other federal laws.

and...

you could be subject to enforcement actions under federal law, including the DMCA

RIAA, did you say that you did not intend to bring legal action? Oh, this was just an intimidation letter? I see.

-S

Re:Academy must be silenced

[Spinality]

If the DMCA is not used to stifle academic research on cryptography then it is worthless.... What are the ethics of providing skeleton keys to the general public...? Should the researchers provide their information to some authority before providing it to the general public? -- AC

OK, I'll bite. I won't dispute your point that there are legitimate conflicts -- if there were only one reasonable side to the argument, the discussion wouldn't have continued this long.

But I must be sceptical about the idea of protecting public and private data via a war-on-crypto, analogous to our wildly successful war-on-drugs. Bad boys will continue to hack through every new security system, and keeping all this work underground prevents the rest of the world from a) knowing how many security holes exist, b) knowing how we might protect ourselves, and c)advancing the state of the art. A set of feel-good rules like our airline security system, inconvenient to everyone EXCEPT the pro bad guys who can work around them, doesn't help.

It is science, after all. Laws to restrict scientific enquiry don't have a good track record, on either ethical or practical grounds.

I will acknowledge that copyright protection issues are just one aspect of general hackery, but crypto is crypto and lessons in one area apply elsewhere.

The bottom line for me is pretty simple: I have no confidence in developing legal remedies as bandaids for technical and social problems. This is like saying "If you get wronged, seek restitution in court." Litigation and criminalization are hardly ever great choices and never happy ones. This is a case in point. We need to think more deeply about how the rights of authors and other content creators can be protected without implementing laws that shackle legitimate scientists or creating another set of Prohibition laws that don't make sense to the average consumer.

JMHO -- Trevor

Re:Felten's at Princeton though, they can afford

[gdyas]

Problem with this is, they won't just sue Princeton - they'll sue Felten personally as well as his grad students who worked on it who I'm SURE wouldn't have been able to handle the cost, though the ACLU would most likely have picked them up.

Problem is, though, that RIAA went to mess with a pretty smart guy. As the Salon article says, he knows his article and the info on how to remove the watermarks is going to get disseminated even if he doesn't present it outright or publish it in a major journal. Looking at the situation, he knew the strongest position for the sake of fighting the DMCA would be to allow yourself to be knuckled under by RIAA's hardball tactics.

Now, every case being brought by RIAA/MPAA/etc based on the DMCA will have the defense pointing to this and saying:

"Look. Here's this law that the record/movie/software industry got congress to pass, saying they needed it to maintain the integrity of their product. But what are they actually using it for? As a method to stifle free expression. Here you have an academic, a man interested only in pursuing the Hack SDMI challenge from an intellectual standpoint, and RIAA is placing its hand over his mouth. This law is a violation not only of the basic tenets of copyright itself but of the Constitution because it's blocking free speech about publicly available materials, blocking education, and preventing the brightest minds in our country from disseminating knowledge. If this is what the court feels congress intended by this law then our client's guilty. If otherwise, the DMCA is simply a bad law that turns media producing corporations into media controlling corporations."

And that, Friends, is a powerful argument.

Re:Dubious tactic

[Zeinfeld]

To use a basketball analogy, Salon seems to think that Felten falling down will convince the referee to call his opponent for a foul.

The RIAA did try a foul. The fact that it afterwards claimed not to have is simply lies on top of lies.

First Ammendment infringements are subject to a very strict standard of review since the courts recognize that the threat of frivolous lawsuits is an effective means of censorship

Re:The problem with overturning the DMCA

[SomeoneYouDontKnow]

If this is true (and I did read the follow-up post disputing this), then maybe we should bail out of the WIPO treaty. I'm usually a pretty easygoing guy, but I'm getting sick and tired of treaties that conflict with our tradition of free speech being rammed down our throats. As an example, look at the cybercrime treaty being drafted by the Council of Europe. I realize that different countries have different sensibilities on these issues, and that's fine with me. If these nations like these agreements, then they can sign them all they want, but it seems to me that these things are being shoved down our throats with the reason given that we must have them to promote free trade, law enforcement, whatever. And is it any surprise that the average person is never the beneficiary of these agreements. No, it's usually some multinational corporation looking to increase its profits or a government agency that's looking for a way to more easily keep tabs on the population and who couldn't get these powers through the normal legislative process. BTW, if any of this sounded like things Pat Buchanan might say, please know that it's purely coincidental and agreeing with him on anything was definitely not my intention.

Actually, RIAA is wrong about Napster..

[ColdrenX]

Under the premise of the DMCA, the RIAA is wrong for going after Napster the way it did. Why do I say this? The answer is quite simple: Analog.

The fact that music has now and always will be obtained without compensating the artist is nothing new to music. The simple fact that the RIAA has never attempted to forclose the companies which manufacutre blank casettes or dual casette tape players should be evidience enough that the real issue with the RIAA isn't the fact the artists aren't being compensated as they would like you to believe. The true heart of the issue is the fact that they are threatened by the availabilty of the Medium

The RIAA has ALWAYS screwed it's artists over. They don't care about the artists, and I pity the morons like Ulrich in Metallica who think the RIAA is trying to protect them by closing Napster: THEY DO NOT GIVE A DAMN ABOUT YOU!

The fact there will always be a medium to copy music illegaly is something that can not be avoided. The fact that the RIAA isn't getting a cut of the profit for itself from Napster is the real point. Let me brighten the extremely dim bulb of any musical artist who reads this:

If the RIAA could make a profit off of Napster, the would keep every penny for the record companies and not pay you, the artist, a cent more.

I applaud the professor in this instance because he's proving that the DMCA is in actuality inhibiting free speech because it puts power to control digital medium strickly in the hands of corporations when the medium should be free to all.

Re:Just another way to lose.

[tdye]

I believe you may have misunderstood the point of the case. The fact that the DMCA can be used to suppress a research paper is exactly the thing that 2600's lawyers need to win the DeCSS case on appeal. The existence of the DMCA chills speech, not just code, but actual spoken words. It's the perfect example to bring against the RIAA.

You're right in that the RIAA doesn't have to go to court to threaten, but that's because they have the money to outlast a professor at Princeton. By caving in to the legal threats, he's demonstrated that threats of legal action under the DMCA damage free speech.

Rather than potentially go to court an lose a clstly battle for which the RIAA is already prepared, possibly setting a precedent in the process, the professor felt it was better to fall on his sword, to become a DMCA martyr the 2600 lawyers can hold up in court as an example that we're already on the slippery slope they warned of in the trial. Also, since his position is untested in court, anti-DMCA forces can safely use his example without having a bad decision hanging over their heads.

Re:Court date

[screwballicus]

Don't organize a protest, it will just make you look like wackoes infuriated because your channels for stealing music are being restricted. Protests did not work in the 60's

Ever heard of the civil rights movement? Yeah, that thing.

What you should do is find some independent musicians (not signed with any RIAA member) and get them to go down there and demand to be heard

A plethora of independent musicians already oppose the RIAA and the major labels. The (quite ironically) popular punk subculture and all its bands have been speaking out against it for years. Unfortunately, they just aren't listened to. The only bands who will be heard on these issues are bands that are already signed with major labels, and they are already impotent. Remember Offspring's attempt to release an album for free download over the web? Their label vetoed the idea [go.com]. Sorry to sound like a cynic, but it seems only these popular bands can make and impact and it is they who are not allowed to.

Why the hell can't reporters see the bait&switch?

[Olinator]

This has really started to piss me off. In the NYTimes Cyberlaw article, Kaplan (no relation, I assume) mostly does a decent job of covering the basic facts and issues, and is surprisingly evenhanded in most respects, eschewing the blatant MPAA/RIAA toadying we've seen in other mainstream coverage of this case. (As a defense witness [2600.com], I was one of the bit-part players in the original trial; I testified [eff.org] in front of Kaplan regarding networking technology to refute some of Shameless^WShamos [eff.org]'s bullshit. The coverage at the time almost uniformly painted the defense as Evil HaXor D00dz; it was really exasperating trying to explain to my family why I was helping them.)

The NYtimes article, quoting some pozzer of a professor at U. of Richmond, says in part:
"You don't have a fair use right to view an HBO televised fight and make a copy of it[...]Similarly, a movie theater can restrict access by charging admission -- even charging a movie critic"
This is such an obvious bait-and-switch it makes my stomach churn that the reporter didn't call him on it! A movie showing in a theater is not "published". You haven't bought a copy of it, you've bought a ticket to go and see it. Copyright law doesn't apply! An HBO televised fight is technically the same thing -- you're paying HBO "admission" to see it, although in this case it's a little murky because they are transmitting a copy to your TV. But neither of these are analogous to something like a DVD, where you've purchased a copy of the work fixed in a tangible medium!

Grrr...