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ACM vs. RIAA 136

Posted by Hemos from the battle-to-the-last dept.
stinkbomb writes "The venerable Association for Computing Machinery has posted a legal brief on it's site regarding Felten vs. RIAA. The ACM position is: 'ACM believes that the application of any law to limit the freedom to publish research on computer technology will impose a cost not only on ACM's members, but also on the academic community, the process of scientific discourse, and society in general.'"
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ACM vs. RIAA More

ACM vs. RIAA

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  • The surgon general... (Score:5, Funny)

    by Pig Hogger ( 10379 ) <pig,hogger&gmail,com> on Friday August 31, 2001 @10:53PM (#2242022) Journal

    ACM believes that the application of any law to limit the freedom to publish research on computer technology will impose a cost not only on ACM's members, but also on the academic community, the process of scientific discourse, and society in general.

    WARNING:
    The RIAA's surgeon general has determined that process of scientific disclosure can be detrimental to the health of your bottom line, and your chances of re-election.
  • But I doubt even the ACM could make a difference at a time like this.

  • Science and the useful arts (Score:5, Informative)

    by swerdloff ( 16397 ) on Friday August 31, 2001 @11:01PM (#2242037)
    In the United States, Congress has the right "To Promote the Progress of Science and the Useful Arts, by Securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries." Sec 1, Art 8, Cl 8.

    Someone explain to me how outlawing science and research in order to protect overextended copyrights (life+70 only helps Disney...) "promotes the progress of science" or the useful arts.

    It's in the plain language, kids. Someone else want to try to explain that to Congress and the Supreme Court?

    Note: a good history of Copyright is available at http://netizen.uoregon.edu/documents/ethics.html (I have nothing to do with that page, but found it and it's pretty good)
    • Simple, I think.

      Stifle progress in the short term, in order to promote progress in the long term.

      It's like capitalism really... capitalism is a mechanism by which things can be produced in the most efficient and economic way. Yet a fundamental part of capitalism is competition... that is, having multiple groups of people doing nearly the exact same thing. It's inefficient in the short term, but quite efficient in the long term.

      • Right, but the current trend is towards stifiling progress permanently. That's not doing anyone any good -- except the big corporations which currently hold extremely lucrative IP.
      • You seem to be saying that having competetive projects such as Gnome and KDE is more in line with Capitalism, as opposed to say, a one-vendor "command driven economy" style such as Windows or pre-democracy Russia. :-)

    • However compelling you may find the argument, you are hunting a straw man. Congress expressly based its power to pass DMCA not on the Copyright Act, but upon the Commerce Clause. While indeed DMCA is codified in Title 17, it is most certainly not a copyright law.

      Indeed, this was one of the points made by DMCA's advocates during the hearings in opposition to the fair use amendments.
      • Clarification -- Of course I meant "Copyright Clause" above, not "Copyright Act"

      • No person shall circumvent a technological measure that effectively controls access to a work protected under this title.


        Fine for the parts which are commerce (I'll even assume they're going to get away with intrastate commerce, under the pretense that it affects interstate commerce), but how exactly is cicumvention of a technological measure interstate commerce? This isn't so much of a rhetorical question, I really want to know.


        In any case, the Felton case seems like it is clearly out of the scope of congress' powers. But I also don't think the Felton case is under the scope of the DMCA, so that's not much of a challen there. The Sklyarov case is clearly international commerce (assuming jurisdictional issues pan out), so that's unlikely to be unconstitutional. DeCSS is likewise clearly interstate commerce, although there is more of a chance of it being unconstitutional due to free speech.


        I don't think there are any cases out there of pure circumvention. I would think this would rely on the "promote the progress of science" power of congress, though.

        • Fine for the parts which are commerce (I'll even assume they're going to get away with intrastate commerce, under the pretense that it affects interstate commerce), but how exactly is cicumvention of a technological measure interstate commerce? This isn't so much of a rhetorical question, I really want to know.

          I think, what obviously follows from this is that the DMCA only applies to circumvention devices that are sold ("commerce"), and not to those given away for free. Either that, or the DMCA has been voted under blatantly false pretenses.

          The Sklyarov case is clearly international commerce (assuming jurisdictional issues pan out), so that's unlikely to be unconstitutional.

          Please explain how US law applies to an international situation? And please, don't bring up again that old canard of "but the software could be bought by US citizens". What's next: imprisonment of an Amsterdam coffee shop owner in an US jail, just because a Merkin managed to buy some weed there on his last visit to the Netherlands?

          DeCSS is likewise clearly interstate commerce, although there is more of a chance of it being unconstitutional due to free speech.

          Hey, DeCSS is not even sold, so how can it be commerce? Much less interstate commerce... Moreover, where it was made (Europe), law specifically allows for reverse engineer "for the purpose of interoperability".

          I would think this would rely on the "promote the progress of science" power of congress, though.

          Won't work because:

          • There is no fair-use exception in the DMCA...
          • There is no exception for circumventing access protections of old works (" To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; "). A law granting authors/publishers the power to lock access for an unlimited time would blatantly exceed the powers granted to Congress by the Consitituion.
          • It actively hampers the progress of science (Felten, Sklyarov, etc).

          • I think, what obviously follows from this is that the DMCA only applies to circumvention devices that are sold ("commerce"), and not to those given away for free.


            Well, the criminal remedies are limited to cases where there is financial gain involved, but the civil remedies have no such clause. I wasn't aware of the pretense of interstate commerce which was given when the issue was raised, and I'm not sure how much that means legally at this point.


            Please explain how US law applies to an international situation?


            First of all, the constitutionality is clear. "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". As for the jurisdictional issue, that is something specific to the Sklyarov case, and its outcome really doesn't affect anyone else. With that said, I believe they have jurisdiction because the items were sold through a U.S. distributor to U.S. citizens living in the U.S. I think your analogy is missing the "living in the U.S." part. I think a closer analogy (jurisdiction wise only) would be a Mexican drug kingpin who ships drugs into the U.S. IANAL, but I'm pretty sure the jurisdictional question there is clear, assuming the facts which are given are proven.


            Hey, DeCSS is not even sold, so how can it be commerce? Much less interstate commerce...


            I don't believe that the courts care about whether money changes hands when they determine if something is commerce, and on that point I agree with them. As for interstate commerce, the supreme court has repeatedly held that intrastate commerce may be regulated by congress because it affects interstate commerce. On this point I vehemently disagree, but that's where the precedent currently lies. Consider the recent supreme court ruling regarding medical marijuana in California. The supreme court decided not to rule on the constiutionality of the specific issue of whether it fell under interstate commerce, but they relied on past precedent for that decision. As for DeCSS not being interstate, it clearly was because there wasn't even an attempt at restricting download to within the state. Where the product was made and whether it is legal where it was made is likewise a non-issue. You can buy marijuana in Amsterdam, but assuming you are somehow able to smuggle it back over here that doesn't give you the legal right to sell it once you get here.


            There is no fair-use exception in the DMCA...



            Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

            Perhaps you know more about what exactly that sentence was supposed to mean. I never followed or heard about the intent of congress when they were first drafting the DMCA. But I took that sentence to mean that there is a DMCA exemption for fair use. Do you read it a different way?


            There is no exception for circumventing access protections of old works.



            No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

            I guess you could argue that an expired copyrighted work is a work protected under title 17 (Copyrights), but I read this as only applying to works which are at the time of infringement protected under copyright law.


            It actively hampers the progress of science (Felten, Sklyarov, etc).


            AFAIK charges were never brought against Felton under the DMCA. I don't think they could have been won if they had. Selling E-book cracking software in binary form did very little to promote the progress of science (arguably it helped gain access to scientific works, but so would breaking copyright law). DeCSS arguably did promote the progress of science, and I'd certainly argue that it falls under the first ammendment. Now two issues come up. First of all, is the DMCA copyright law or is it commerce law, or is it both (and if both which parts are which). Secondly, is there a fair use exception in the DMCA. I believe there is, which means you might be able to get away with DeCSS but ultimately you can't make the law itself unconstitutional. For all practical purposes though, if the DMCA is ruled unconstitutional because there is no fair use exception, congress can simply add a fair use exception and pass it once again. I guess the hope is that we can convince congress by then that the DMCA is a bad law in the first place.


            Actually the best possible outcome would be for the supreme court to start enforcing the interstate commerce clause. The federal government has no business controlling the actions of individuals which take place solely within the state, unless those actions infringe upon the basic rights we are given under the constitution.




            In my 'revisionist' view, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power 'to regulate Commerce...among the several states,' does not extend to the regulation of wholly intrastate, point of sale transactions. - Supreme Court Justice Clarence Thomas [mcsm.org]
            • But I took that sentence to mean that there is a DMCA exemption for fair use. Do you read it a different way?


              IANAL, but I believe that means I can exercise fair use for material that I own. However, I cannot sell, give away, or describe techniques for doing so if it involves circumventing access controls. So I could legally write a DeCSS clone and use it myself, but couldn't distribute it or even talk about it. Of course the practical effect of this is to destroy fair use (while also ripping a large chunk out of the 1st Amendment), but that doesn't seem to bother wise and impartial judges such as Kaplan.

          • Surely it does not apply to old works. The wording says "...access to a copyright...". So circumventing the protection to access a work on which copyright has expired (ie an old work) does not form an offence under the act.
            • > So circumventing the protection to access a work on which copyright has expired (ie an old work) does not form an offence under the act.

              There is a small logical fallacy here: The DMCA forbids the creation and trafficking of circumvention tools. The same tools would be used on "new" works and on "old" works. So an easy cop-out would be if the authors just claimed that their tools were only intended to be used against works whose copyright has expired? I don't think the RIAA, the MPAA and their jackbooted thugs would agree with such an interpretation.

        • The strongest argument I have seen for these types of arguments was made in the Law Professor's Brief [gwu.edu] in the DeCSS case. Similar arguments was also made below, but rejected by the District Court. Because almost all transactions using a computer use a network, the interstate commerce requirement is probably satisfied under the affectation doctrine, though the point you raise is a fair one.

          Alas, the Second Circuit didn't seem remotely interested in these arguments, apart from the First Amendment issues.
      • Congress expressly based its power to pass DMCA not on the Copyright Act, but upon the Commerce Clause.

        Isn't it long past time this was renamed the "Subvert the US constitution clause".
        Or the "ignore the 10th (and frequently 14th) ammendment clause"...
      • Blockquoth the poster:

        Congress expressly based its power to pass DMCA not on the Copyright [Clause], but upon the Commerce Clause


        Well, that's all nice and good, but essentially irrelevant. Congress doesn't decide whether a law is constitutional; the Supreme Court does. What Congress might have done is present an argument that the DMCA is Constitutional because it draws its force from the Commerce Clause. There is nothing that requires the Court to agree with them on that point.



        The Court is not stupid. They will be able to look at a law

        • called the Digital Millenium Copyright Act,
        • placed at US Code 17 (the location of copyright law), and
        • having several sections indicating that it was to implement WIPO treaties on copyright
        and realize that, in fact, it is a copyright law. They can reject the Commerce Clause argument as specious (and insulting) and saw that the law, if valid, draws its force from the Copyright Clause -- and they can then evaluate whether, in fact, the Copyright Clause allows the DMCA.



        Congress might have fooled itself into the basis of the law, but the Court has the actual say.

        • Your argument derives more from a rich fantasy life than from the law. The question has already been raised and dismissed without day by several courts.

          There is no chance DMCA will be declared unconstitutional for lack of Congressional power to pass it. Its title and locus of codification are irrelevant, and the nature of the treaties it implements likewise. None.

          All that the Court addresses in Article I cases is whether the Commerce clause empowers Congress to pass the law. Unless the statute is found not to address subject matter that does not affect interstate or international commerce, they will never read clause 8.

          Further, the Article I, Section 8, clause 8 cases to date haven't provided much succor for your argument either. The Courts traditionally defer to Congressional policy decisions on such matters unless there is "no rational basis" for the Act. The test doesn't mean what you think it means -- no "rational basis," means, essentially, no credible articulable reason.

          The unonstitutionality argument grounded in lack of authority under the Copyright Clause is, legally speaking, a nonstarter. Its already been tried, and lost. It will never work. Move on.
          • Well, until the Supreme Court makes a definitive statement, I will continue to believe the DMCA unconstitutional. And I am far from alone... No fewer than 46 professors of law share the opinion and were willing to file an amicus brief [eff.org] in the deCSS case to that effect. So I think that the law is somewhat less cut-and-dried than you purport.


            Some interesting excerpts:

            • "The Intellectual Property Clause 'is both a grant of power and a limitation.' Graham v. John Deere Co., 383 U.S. 1, 5 (1966) ... Congress may not extend protection to unoriginal subject matter, nor to ideas, processes, methods of operation, and the like unless the threshold for patentability is met. Feist, 499 U.S. at 349-50; Baker v. Selden, 101 U.S. 99, 103-04 (1879). Nor may it grant protection for proper subject matter in perpetuity. A law that protects informational goods without regard for these limitations cannot claim the Intellectual Property Clause as its authority. The Trade-Mark Cases, 100 U.S. at 93 94"
            • "The Necessary and Proper Clause affords Congress a wide degree of latitude in exercising the other powers enumerated in Article I. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-21 (1819). However, the clause is not an unlimited grant of authority. In particular, Congress may not use the necessary and proper power to avoid clear limits on its other numerated powers under pretext of advancing them. The Intellectual Property Clause is a limited grant of authority, and the anti-device provisions abrogate these limits."
            • "The necessary and proper power allows Congress only those means 'which are appropriate, which are plainly adapted to that end, [and] which are not prohibited, but consist with the letter and spirit of the constitution.' McCulloch, 17 U.S. (4 Wheat.) at 421."
            • "This limitation is not merely theoretical. The Court's recent decision in United States v. Lopez, 514 U.S. 549 (1995), illustrates that it is real, and cannot be overcome by mere assertion of
              a relation, however indirect, between the activity sought to be regulated and a power actually granted to Congress. See 514 U.S. at 566-68 (holding that intrastate activity may be regulated pursuant to Congress' commerce power only if it "substantially affect[s]" interstate commerce)(3)"
            • "In sum, with or without the treaty power as backstop, the Necessary and Proper Clause does not empower Congress to redefine its own authority to avoid specific, affirmative limits on that authority."
            • "Finally, Congress may have intended the anti-device provisions as an exercise of the commerce power. What Congress may not do using the Necessary and Proper Clause, however, it also may not do using the Commerce Clause. Neither Congress nor this Court may adopt a construction of any power enumerated in Article I that would nullify limits on other Article I powers, or render other Article I powers superfluous."
            • "Congress may not invoke the Commerce Clause to extend exclusive protection to public domain or copyright-expired subject matter, or to eliminate fair use of copyrighted expression, any more than it may invoke the Necessary and Proper Clause to do so."
            • "In United States v. Moghadam, 175 F.3d 1269, 1275-76 (11th Cir.), cert. denied, 120 S. Ct. 1529 (2000), the court acknowledged that a law enacted pursuant to the commerce power cannot survive review if it is 'fundamentally inconsistent' with the Intellectual Property Clause.." [emphasis added]
            • In conclusion, "The DMCA's anti-device provisions lack constitutional mooring, and may not be invoked to bar appellants, or anyone else, from reproducing, distributing, or linking to DeCSS. If Congress wishes to afford protection for 'technological measures' applied to protect copyrighted works beyond that which copyright law already affords, it must return to the drawing board."

            So there is extensive precedent for asserting that the DMCA is broadly unconstitutional. Swweeping it away with a wave of the magic "Commerce Clause" wand simply does not suffice.
            • Yeah, I know -- I cited that brief in a sister thread. I clearly cannot force you to see reality, or to do the research and homework to see how hopeless is your position. There's a reason it was relegated to an Amicus brief, and not seriously pressed by the defendants (whose necks actually hinge upon whether or not they rely on winnable arguments) on appeal.

              Perhaps the Supreme Court may take it up -- they certainly will have the chance to do so after the Second Circuit decides Remierdes. Wanna bet that the only constitutional issue even addressed beyond a paragraph will be the First Amendment? Wanna bet that the Court, if cert is denied, doesn't even whiff at the Congressional powers provision?

              This is an argument that has lost every time it has been meaningfully raised in recent history. It wasn't even seriously weighed in the recent cases dealing with the term extension.

              Rely on it. Live for it. Love it. Hug it. Hope for it. But don't bet your life on it. It is still a dumb argument on the merits, for reasons previously stated. It won't hold up, and there are serious challenges to the law that would be far more substantive and likely to make a change.

              So, go ahead and spit into the wind -- tilt against windmills. But it is thought processes such as these that are the reason the DMCA opposition has so fragmented that there is no serious threat to RIAA's ponderous position.

              Make no mistake -- I am as anti-DMCA as it comes. Its just that wasting energy on losing arguments is not my idea of sound politics.

            • So I think that the law is somewhat less cut-and-dried than you purport.

              And just so I am not mistaken in my view. It is not only cut-and-dried as I purport -- it is my view that this question is a no-brainer slam-dunk no-chance play.

              That being said, you seem to rely less on the merits than on the proposition that, "if 46 professors can sign a brief that makes an argument, that argument must at least have play." Don't be naive, as well as foolish. There isn't a meaningful constitutional argument that cannot be made. But there are huge differences between argumentst that are likely to win, and those that are not.

              Odd, how EFF spends its energies on the First Amendment issues (as indeed, does most of the professor's brief). Perhaps they think they have a chance on that.

              DMCA is probably not unconstitutional per se, but is likely to be constitutional as applied in the stupid injunction in Remierdes. And of course, as it concerns the questions in Felton, its even a better case if the court is willing to take it up on the merits.

              But your argument, inviting THIS Supreme Court: (1) to hold that a commerce power cannot be exercised if inconsistent with the IP clause; (2) to hold that they can second-guess on grounds other than rational basis the decisions of the Congress; and (3) agree with the argument on the merits after determining they are allowed to legislate from the bench, well, keep fantasizing out loud. Just understand that you are making it easier for the friends of the DMCA by so doing, not harder.

    • Well, it's certainly stimulated the progress of the legal arts :)

    • Someone else want to try to explain that to Congress and the Supreme Court?

      Ah, but it has already been explained to them by the lobbyists with their soft money firehoses. A lesson about current politics: follow the money.

    • In the United States, Congress has the right "To Promote the Progress of Science and the Useful Arts, by Securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries." Sec 1, Art 8, Cl 8.

      Man, it's a right not obligation :-)

    • In the United States, Congress has the right "To Promote the Progress of Science and the Useful Arts, by Securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries." Sec 1, Art 8, Cl 8.

      I think this point came up recently in the coverage of a Supreme Court case argued by Prof. Lessig.

      The lower courts have held that the preamble does not constitute a limitation on Congress's power to establish copyrights. That is to say the clause gives Congress the power and states the reason they were given this power, but they aren't required to use that power in ways that are consistent with the reason.

      The SC hasn't had it say on this, but apparently nobody has been willing to take it on. If the constitution were a program, the premble to the statement is a comment that indicates the programmers' (framers') intent but which is ignored by the machine (government) executing the program. Perhaps this is wise from a technical standpoint -- like not having the machine rely on the explicit code rather than to guess the programmers intent from the comments.

      Of course, if a programmer routinely creates maintenance problems by ignoring comments abusing absurd possibilities created by the original designer, what do you do? You talk to him, you train him, and if he doesn't shape up, you fire him.

      The constitution is a wonderful thing, but it can only do so much. At some point we have to bring our legislators to task. Unfortunately, the people who understand this problem are so few that our politicians can safely ingore them. The question is -- how do we educate the rest of the population to this issue? Rallys and demonstrations are all very good for keeping up morale and preaching to the faithful, but unless they sweep the population by storm they only further marginalize the participants.

      While we do need organizations like the EFF working on the legal and constitutional front, what we really need is to be able to hire a competent PR firm to handle the cause of free use.
  • The money the bloated record exec's spend on this lawsuit will only drive up the price of CD's which will lead to more MP3 sharing and more underground groups who will be cracking the lame security RIAA lugheads can think of.

    Felton would do nothing but help the RIAA better thier security by being a white hat. Like there aren't thousands more people out there who can hack security - and about 99.999% of those people wouldn't be nice enough to tell the RIAA about it like Felton.

    ...

  • Look into the future ... (Score:3, Informative)

    by SirSlud ( 67381 ) on Friday August 31, 2001 @11:13PM (#2242059) Homepage
    Seeing as there wouldn't be much to sell if science and research didn't exist, the RIAA would be prudent to listen. Studio technology is one of the most important aspects of (at least many genres') selling a hit record (unfortunately), and probably wouldn't be where it is today without that good old unbridled R&D. Just to expand on that, for those who don't understand what I'm getting at, studio production values are to music what happy endings are to hollywood.

    Of course, we all know that no business can see past the end of it's wallet, so it's unlikely they'll suddenly grow the foresight to recognize that laws they have sponsored or are pursuing will hurt them in the long run. Ah, ya gotta love cycles.

    It's much like the oil and gas industry; what exactly do you expect to be selling when you're inadvertantly being detramental to the very thing that makes you money?

    History doesn't teach us anything, it seems. It teaches us about 2 or 3 heros and villains, and usually with a better ending. And you can quote me on that.
    • Seeing as there wouldn't be much to sell if science and research didn't exist, the RIAA would be prudent to listen. Studio technology is one of the most important aspects of (at least many genres') selling a hit record (unfortunately), and probably wouldn't be where it is today without that good old unbridled R&D. Just to expand on that, for those who don't understand what I'm getting at, studio production values are to music what happy endings are to hollywood

      The thing is if your in first place new technology can only hurt you. If you are in second place it might help you take first place, or it might help the next 5 guys down to take you out. If you are pretty happy with where you are, stopping the march of progress doesn't really hurt you as much as it helps.

      Even when new technologies expand a market they tend to bring in enough new players that it isn't really a help to the old players. So really the big guys only care about advancing the state of the art when the other choice is letting someone else do it, and thus letting the someone else take the market away.

      So I wouldn't expect big business to be saving researches butt. It may be in the interest of business in general to do so, but it is not in the interest of the current winners to do it!

  • um...hemos? (Score:3, Insightful)

    by vergil ( 153818 ) <vergilb&gmail,com> on Friday August 31, 2001 @11:32PM (#2242093) Journal
    Just a minor quibble, but did you intend to include a "Patent Pending" icon along w/ this story?


    Last time I checked, the RIAA was in the business of copyright enforcement.


    Perhaps /. should whip up a generic, catch-all Intellectual Property icon. Or, better yet, individual icons and sections to reflect the different facets of IP protection - patent, copyright, trademark, and sui generis (so-called one of a kind protections, like those covering databases in the EU).


    Sincerely,

    Vergil

  • DMCA is being used to squelch non profit websites (Score:4, Informative)

    by teatime ( 225707 ) on Friday August 31, 2001 @11:38PM (#2242100)

    I know this is somewhat offtopic, but oh well...

    Whether you agree with the politics of these websites or not, it is pretty repugnant that the law is now being used to squelch criticism. The story is HERE. [salon.com]

    Also here is a rough draft [indybay.org] of something I am writing to address the DMCA and to explain the problems with this law to Joe and Jane sixpack. Please suggest changes, criticize and flame etc.. and also feel free to use it. Thanks.

    • The article on salon is rather short on details. What was on the website that this company thought was a copyright violation?

      I'm also a bit concerned about treating these people like the underdog because it appears as they though are quite violent.
      • However, being violent is a reason for action. Talking about it isn't supposed to be. There are good reasons why the First Amendment was given the broad scope that it was given. It periodically gets narrowed down in one place or another. Usually it eventually recovers.

        There are definitely sites out there that I find repugnant and inflamatory. I can't think of a safe-for-me way to justify shutting them down that is based on what they say rather than on what they do.

        There are good reasons why the First Amendment was written with such a broad brush. The people who did it had experienced unreliable governments and shifty lawyers.
        • Oh, I agree that being repugnant and inflammatory is no excuse for censorship.

          I'm just concerned as to what the real content was that was shut down. If it's like the company logo's and stuff, then that's not fair.

          But in recent years some groups have resorted to terrorism because their words are not being heard.

          I just want to know whether they have crossed that line or not.
    • It doesn't matter what else they are doing, if the issue at hand is that their freedom of speech is being attacked, then stick to the issue! It seems pretty clear that they are using the DMCA to close down their freedom of speech in this case.

      The freedom of speech has never been nor was it ever intended to be restricted to "popular speech." Frankly, I'm all for "cruelty to animals" especially when it comes to laboratory testing. I'm very against acts of violence when it comes to fighting for your cause and that includes "threats" as well. I will not defend that. But I will defend their rights to say what they want to say. That's freedom of speech, baby, and if I let people get away with removing those rights from an unpopular group just because they are unpopular or even hated, then what's to stop others from singling YOU out in the future?? Jeez! Think about anything unique about yourself, now classify yourself as that, form a peer group and see if at some point you might become hated for it? In the U.S. middle-aged-white-males are a pretty-well discriminated against group!! With all the laws designed to support people not of this group, it's pretty clear that we're being singled out now.

      For anyone who thinks I'm going a bit too far with my reasoning, think back a few decades! "Water!" People pay for water now!! It used to be a public thing and now people pay for it if they really want to enjoy it. What next? Air? How about television? "Cable!" Now just abotu everyone who watches T.V. is a cable or satelite subscriber. It used to be free to anyone who has a television set but now the quality of the signals (just like the quality of tap water) is so poor that if you wish to have reasonable quality of service, you have to pay a private vendor of the service. Air is free now, but for how much longer?

      It happens slowly... really really slowly... but it's happening.
  • Thank God I only go to SIGCSE - the Computer Science Education conference that the ACM holds. They can't copyright pedagogy, right? ;-)

  • What About Research That IS Computer Technology? (Score:5, Interesting)

    by cburley ( 105664 ) on Saturday September 01, 2001 @12:01AM (#2242140) Homepage Journal
    Years ago, I dropped my membership in the ACM, mainly because they came out enough in favor of software patents that I felt unable to (morally, practically, effectively?) abide by their code of conduct [acm.org] requiring members to treat them as valid.

    (That code of conduct is, generally, in my opinion, excellent, and well worth reading and abiding by, to the extent it's possible.)

    Unlike most any other industry, the computer industry is one in which research on the technology is often presented as the technology itself. In that sense, even well-established, free, "production" software like GNU Emacs, GCC, and the Linux kernel can be reasonably considered "research" as well -- they're distributed as source code, and everyone is encouraged to study it, learn from it, modify it, and distribute what they learn and/or their modifications.

    Since the existence of software patents directly infringes peoples' individual rights to distribute research in that form (free source code), I found the ACM's requirements, as much as I agree with the basic ethical, moral, and practical basis for them (that is, it's generally ethical, moral, and practical to obey existing laws), to be too much for me in the case of software patents.

    So, while I'm happy to see the ACM recognize the specific new threat, I wonder how they view software patents today, since software patents can easily render much practical research either infeasible (can't be distributed as free software without authors losing their houses and other property in court due to patent-infringement lawsuits) or illegal?

    For example, without things like the DMCA, software patents can be used to prevent (or punish for) distributing things like DeCSS and other "IP-security" softwarez. (I used that term on purpose; "warez" denotes illegal software, it should perhaps also denote immoral, self-delusional, or tyrannical software as well. ;-)

    True, ideally, software patents make an invention's nature plain enough for all (adequately schooled in the arts) to understand, and what the ACM's complaining about here is the "security-through-obscurity" approach presently used by certain companies enjoying an artificial, and ultimately too-fragile, legal fence built around it, known as the DMCA.

    But, in practice, software patents are not used by typical programmers or computer-science researchers as a source of information on how stuff works; and, further, the lawyers who help write them up apparently try to make sure they are as inscrutable as possible (while still passing muster with the Patent and Trademark Office, or whatever it's called), so as to provide the least useful information, while carving out the most intellectual "property" possible.

    So, even absent the DMCA, it seems to me that a much broader problem, including much of what the ACM is presently worried about, is posed by software patents, which too-often amount to inscrutable, unhelpful "explanations" of just what a person (or even a computer program) might, on its own, be doing, that is illegal, because the owner of the software patent a) says so and b) can afford expensive lawyers.

    I guess what I'm asking is, given that the DMCA and software patents do exist:

    • Does the ACM expect its members to abide by the legal restrictions of the DMCA, even if the result (not publishing weaknesses in a timely fashion) might be loss of property or even life of innocents?

    • Similarly, does the ACM expect its members to strive to avoid infringing software patents, by:

      • not publishing software that even might infringe
      • not publishing research papers that describe patented properties, if it's fairly straightforward to convert any pseudocode or descriptions in the papers into software (in languages ranging from assembly code to Haskell, ML, Prolog, and so on)
      • spending so much time researching the constant stream of software patents which they might otherwise infringe that they have little or no time to actually research and publish computer technologies?

      And does it expect its members to do these things even if doing so prevents them finding and/or publishing security flaws, again, even if the result of withholding such information might include the loss of property or life?

    • Beyond specifics such as the DMCA and software patents, does the ACM generally expect its members to abide by legal restrictions when the result of doing so could have severe moral repercussions, such as loss of life or property due to inadequate, or even hostile, computing technology being deployed by companies using "intellectual-property" law to protect such deployments against ACM members dutifully informing the public?

    Of course, these are really general questions of ethics, but since the ACM is making a statement, one which I support, I'd like to see them continue to think through issues like these, so their members have appropriate guidance from them regarding ethical issues, and so they serve as an ethically-consistent "voice", for computing professionals, to be heard by those who take on the responsibility of authoring and enforcing human laws.

    • You don't like software patents. The ACM position is that DMCA is unconstitutional on First Amendment grounds. I'm not sure I see those positions as inherently coextensive.

      A reasonable person might well adopt any of the at least four possible combinations of those views.

      You have your agenda -- they have theirs.
    • >But, in practice, software patents are not used by typical programmers or computer-science researchers as a source of information on
      >how stuff works;

      Agreed ! and most of the times, even if they were published, they won't be of any use; as basic software techniques are often the same ! knowing your classics (The Art of Computer programming) are more than enough to recreate any patented software. So the main reason patents have been done (i.e. disclosure of original information while granting monopoly to it's owner) is caduceus in this case.
      I think one of the workaround to this, is to make the publication of the source code necessary prior to granting any software patent; after source code is the equivalent of blue prints, and these are (I believe !?) necessary in areas which need them. This will no doubt limit the scope of abusively wide patents, and will ensure that reimplementation of the idea (which is not patentable) don't violate the patent.
      • I think one of the workaround to this, is to make the publication of the source code necessary prior to granting any software patent; after source code is the equivalent of blue prints, and these are (I believe !?) necessary in areas which need them.

        dangit, that's so right on. with normal, traditional, patented items, we generally see engineering diagrams showing how the thing is made. with pharmaceutical patents, we get chemical formulae. people who want to patent software should be forced to provide the code: at the very least, pseudocode, but C/Forth (a lot of these patents are in machine control systems) or whatever would be ideal.

        another important point to consider, with software patents, is that none have been litigated for infringement yet. the holders have been able to obtain significant financial gain through them, of course, but there haven't been any real tests in court.

      • I think one of the workaround to this, is to make the publication of the source code necessary prior to granting any software patent

        Oh great, I can see it now, pattens with very vegue discriptions, and the actual code in BF, [catseye.mb.ca] INTERCAL [tuxedo.org] and befunge [catseye.mb.ca] . Excellent, now we will all be able to follow what's going on. Can we get a law passed making it a capital crime to have a pattent with polyglot source in these languages?

        PLEASE DON'T GIVE UP

        10 DO >>[-<+]<,

        COME FROM 10

        PLEASE DO DIE NOW

        (and no, that won't work. Unless I'm really lucky.)


    • Are you sure you've read the code properly? Just because you don't agree with the executives of the society doesn't mean you can't argue against them. That what scientific debate is for, and from what I can tell having just checked, those executives haven't influenced the idea behind the code of ethics at all.




      As it should be with any good society, the ACM does not dictate to its members. On the contrary, the members define the ACM and what it stands for. This isn't rhetoric, it's realtime definition generation and the ACM's code of ethics demonstrates it perfectly.




      In the past couple of weeks I've been looking around for papers crossing ethics and databases for some postgraduate work I'm doing. The presence of papers in the ACM digital library was strangely vacuuous, but I did find one paper by Donn B. Parker titled Rules of Ethics in Information Processing. It was published in 1968 in the Communications of the ACM. You can see the abstract here [acm.org], but you might need an ACM login for the abstract and probably a member to download the pdf.



      When he wrote it, Donn Parker was the Secretary of the ACM as well as the Chairman of the ACM Professional Standards and Practices Committee. He was arguing in favour of the first ever edition of the ethical rules of conduct for ACM members that was adopted in 1966.



      One of the major points of his argument was that it was important to have guidelines to effectively say that "members must be ethical". On the other hand, the guidelines were very cleverly written so as not to say what ethical was. Everything that mattered was left to the judgement of the member.



      The idea was not to impose any specific rules on members, but to simply require them to use good judgement and common sense in what they consider ethical, and abide by it. If, on the other hand, a member did something that they clearly should have known was wrong and couldn't offer a reasonable argument against it, there would be grounds to have them thrown out of the society.



      Even looking at it now though, I think it would be possible to argue that it's written in the same form. Consider section 1.5 where it says "Copies of software should be made only with proper authorization. Unauthorized duplication of materials must not be condoned."



      Nowhere does it define what "proper authorization" actually is. This is left up to the member to decide, and it's feasible that under some circumstances someone might argue that proper authorization doesn't require consent of the copyright holder.




      Section 2.3 specifically says "ACM members must obey existing local, state,province, national, and international laws unless there is a compelling ethical basis not to do so. Policies and procedures of the organizations in which one participates must also be obeyed. But compliance must be balanced with the recognition that sometimes existing laws and rules may be immoral or inappropriate and, therefore, must be challenged. Violation of a law or regulation may be ethical when that law or rule has inadequate moral basis or when it conflicts with another law judged to be more important. If one decides to violate a law or rule because it is viewed as unethical, or for any other reason, one must fully accept responsibility for one's actions and for the consequences."



      This is a complete let-off by the ACM if you want to protest against the DMCA with civil disobedience. It's saying that you shouldn't drag other people (eg. employer) down with you unless they consent. But if you seriously disagree with the ethics of the law then go ahead and protest.




      Whether it was in 1966 or 2001 and regardless of how many words there are, the ACM code of ethics has been very cleverly written. In so many words, it basically tells people to trust their common sense and don't do anything stupid. That's exactly what ethics are, and the ACM isn't telling you otherwise. I think you should consider rejoining.

      • Well, slap my cigar and call me Willy, when I looked over the code specifically for the wording you found in 2.3, I didn't see it!

        So, you're right, the ACM has already answered the most important of my questions, leaving only my belief that software is close enough to speech, aka research, that software patents pose a greater and longer-term threat to secure systems than the DMCA.

        (Remember, the DMCA applies only to software distributed under it, while software patents apply to all software, even free software, so while we can theoretically avoid "DMCA-contaminated" software in our research -- as impractical as that might be -- we can't avoid working with software that might be "contaminated" with algorithms already, or being, patented, without leaving the field of software altogether...something I often consider doing myself, to be honest.)

        At this point, I consider my concerns about the ACM's recent position to pale in comparison to the good they've done by highlighting the risks posed by legislation such as the DMCA, especially in the short run.

        Ultimately, as the ACM's own section 2.3 says, it's not, to me, a matter of "software patents are bad" or "the DMCA is bad". I believe it's simply a matter of helping everyone, especially those involved in deciding the acceptability of such law, understand the long-term, possibly unintended and/or unforeseen, consequences, so they can see more clearly what they are already accepting responsibility for.

        (I guess what I am saying is that, while section 2.3 specifically identifies those going against some laws in favor of higher moral/ethical laws as bearing the risks and responsibilities of doing so, I believe that's true of everyone, regardless of whether they're "playing by the rules", violating the rules, or writing the rules. Not that everyone's "equally guilty", but since everyone has the capacity to decide how to proceed, they have to recognize that they have a responsibility for the freedom to make whatever choices they make. The more enlightened they can be about the potential outcomes, the better, is how I see it.)

  • Just wondering why we have the "patent pending" icon for this article. I would think that the right topic would be YRO or something like that, as that's what the DMCA is all about. The DMCA doesn't really have anything to do with patents, which with software are a whole other evil thing.

  • Though the content companies would love to put a DRM in each and every device they sell, the Consumer Electronic companies have to make the right mix of ease-of-use and protecting the content. But under the guise of the DMCA, the content/record companies are trying to prevent reverse-engineering of the encryption schemes, simply because the present schemes are so flimsy, that the only protection is through keeping the scheme itself as secret. The DVD is a case in point.
    The ACM has done a right thing in espousing the cause of research in understanding content encryption technologies.

  • Get a copy of this magnificient comic [ninthart.com] by Steve Darnall (of "Empty Love Stories" fame). A cynical and eye-opening exploration of the US of A, it takes us on a disturbing ride, from its inception on ideals of freedom and equality, to the present day where corporations have the government and the law in their hands.

    Its relevance is all the more strong with the advent of lopsided laws such as the DMCA [educause.edu] and the UCITA [arl.org].

    Expect to see this publication banned in the near future.

    • Alex Ross, who pencilled some of the finest comic book art in this work. His visceral, haunting illustrations complement Darnall's insightful, sometimes spine-chilling, narrative well.

      Legendary letterer Todd Klein has done a great job, adapting his style to the context. The integration is so well executed Microsoft should analyse this, if for no other reason :-)

      Look out for the visual easter eggs scattered throughout.

      Uncle Sam was originally published as a two-parter in 1997 by DC Comics. It is now available as a single volume in hardcover [amazon.com] and paperback [amazon.com] formats.

  • well i feel RIAA will be the ultimate loser in this war. come to think of it, it's the research which has enabled the music industry to come this far. If they try to curb research to make a quick buck then they're very shortsighted.
    If people like Felton don't present their results then that'll stagnate the industry .. whatever loopholes are there will remain .. and you just won't have any progress!
    someone should try explaining to them that this is for their good ! and if they stop it then they stand to lose a lot. Imagine if the thing "leaks" out and all the script kiddies start distributing code to bypass their security.
  • With insight like this, I may actually have to get my membership again. Wanna use science? Don't piss of the scientists....

  • From the declaration:

    "I am the Executive Director of the Association for Computing Machinery ('ACM'), a non-profit educational and scientific computing society, whose executive offices are located at 1515 Broadway, New York, New York 10036....

    "...application of the DMCA to the presentation and publication of scientific papers could result in the departure from the U.S. of the information security community for conferences and publications...

    "...I declare under penalty of perjury that the foregoing is true and correct. Executed on August 6, 2001 in London, England."

    Comment would be superfluous, wouldn't it?

  • But the reaction of the RIAA was predictable several years ago. Why no reaction then?

    RIAA = Millions of dollars in campaign contributions

    ACM = Bunch of egg heads that have no effect on getting re-elected.

    This sums up the situation in a nutshell.

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