About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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July 19, 2005

Wayback DMCA Violations

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Posted by Ernest Miller

I'm a little late coming to the party, but there has been a great deal of discussion on the net of the recent lawsuit against the Internet Archive, in particular, accusing the Wayback Machine of allowing a law firm to access archived copies of a website, which shouldn't have been available according to's policies regarding voluntary compliance with a robots.txt file. The Archive's policy is to not allow access to archived webpages if the URL includes an exclusionary robots.txt file. This policy is applied retroactively, so that if a webpage didn't have a robots.txt file when archived, access to the archived file will be prohibited if the current version of the page has the exclusionary request.

Reportedly, a law firm interested in the archived version of pages was able to get around the Archive's policy through the simple expedient of repeatedly requesting the documents until the system, for whatever reason, spit them up.

What has gotten many commentators interested is that the anti-circumvention provisions of the Digital Millennium Copyright Act have been invoked against the law firm that accessed the files by repeatedly requesting them from

Read the (massive download) complaint here: Healthcase Advocates v. Harding Complaint [PDF].

Some of the commentary here:

The first important thing to note about the case is that the Wayback Machine is not being sued for violation of the DMCA itself, but only for a variety of contract-based claims, for not taking care to ensure that their robots.txt voluntary compliance actually did what they claimed was the policy.

The only party that is alleged to have violated the anti-circumvention provisions of 17 USC 1201(a)(1) are the lawyers who actually accessed the archived pages. The key element of this charge is here:

44. The denial text string in the robots.txt file on the computer server hosting the web site effectively controlled access to the archived historical content of the web site through the Wayback Machine at
Nope. According to Wikipedia, Robots.txt:
is purely advisory, and relies on the cooperation of the web robot, so that marking an area of your site out of bounds with robots.txt does not guarantee privacy. Many web site administrators have been caught out trying to use the robots file to make private parts of a website invisible to the rest of the world. However the file is necessarily publicly available and is easily checked by anyone with a web browser.
Pretty open and shut case. Robots.txt is not a technological measure under the DMCA. If it were, then all you'd have to do is slap a little text into any file saying something along the lines of "don't copy this" and suddenly it would be technological control measure. This would also pretty clearly eviscerate 17 USC 1201(c)(3), the no technological mandates provision:
Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
The fact that the Internet Archived voluntarily agreed (perhaps even contracted) to comply with the robots.txt file doesn't change a thing. Either something is a technological measure under the DMCA or it is not. It can't be one thing for one party and something else for another. Either it meets the definition under 1201(a) or 1201(b), and is applicable to all parties, or it does not. Otherwise, you could see collusion between two parties to make "don't copy this file" into a technological measure under the DMCA, at least for their purposes.

You can't have a DMCA violation if you don't have a technological control measure. So, if the plaintiffs want to maintain a DMCA violation they're going to have to base it on something other than a robots.txt file.

Comments (3) + TrackBacks (0) | Category: Digital Millennium Copyright Act

June 23, 2005

Gartenberg Responds on eBook DRM and Potential DMCA Violations

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Posted by Ernest Miller

A couple of days ago I wrote a post about Jupiter Research analyst and DRM-proponent Michael Gartenberg, who had grown so frustrated with Microsoft Reader's ebook DRM that he apparently circumvented the DRM, which is generally illegal under the DMCA (DRM Proponent Fed Up With DRM - Violates DMCA). Well Gartenberg has now replied, indirectly (My Last Word on DRM... Today).

Here's my last word on drm. I repeat, I'm not against the concept and most consumers aren't either unless they bump into it while trying to use content they purchased in a legitimate way. I am against the way msft has supported folks using their Reader software and being locked out of my content. Some of you also suggest I may have violated the dmca when I posted my solution. I don't know. Honestly. It seems to me the program does nothing to the files, they are quite protected and must be run on an activated computer that reads them. The DRM is not stripped out at all. That's more akin to ouputting my iTunes files to a CD or a cassette tape. But maybe not. So for now, I'm deleting the files and the program and will inquire of folks who know more about the legal aspects.
Perhaps, if he is promoting DRM, he ought to know a little bit more about the law that makes DRM viable for consumer goods. Hopefully, this will be a good learning experience. I hope that he will publish a posting giving his lawyer's take on the issue.

In related news, another good customer gets upset with faulty Adobe DRM (Open Letter to Adobe).

Let’s be clear about this. I’m not stealing your software.

But you’re treating me like a criminal. Twice in the past few weeks, I’ve had to talk to one of your activation support reps because your online activation system is broken. It has several times just decided that I’d activated enough, and was suspicious. Never mind that I was reinstalling on a brand new replacement computer. Never mind that on the first occasion this happened, there was no grace period, and the software simply would not run until I talked to a representative on the phone, who, by the way, are ONLY AVAILABLE DURING WEST COAST BUSINESS HOURS. [emphasis in original]

Read the whole thing.

via Darknet

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 21, 2005

DRM Proponent Fed Up With DRM - Violates DMCA

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Posted by Ernest Miller

Michael Gartenberg, Jupiter Research analyst and DRM-proponent, has grown fed up with Microsoft Reader's ebook DRM and taken his rights into his own hands (MS Reader DRM Issues Solved... Permanently).

While I'm still waiting for MSFT support to help me get back into the content I purchased for MS Reader (so far two emails and a rather fun 45 minute session with MS Tech support by phone, which is totally clueless about Reader. I was sent to Office support, Windows Activation and even though I kept telling them that there's no product activation code for Windows, my words fell on deaf ears). I finally took matters into my own hands. With a little help from a lovely free program called Amber LIT conversion, I was able to take all my MSFT .lit files and convert them to unprotected .PDF files for Tablet viewing and Word files that converted easily to eReader format. Took about a minute for each book. The program works with protected .LIT files but needs to be run on a machine with an activated and valid MS Reader. Since my old computer did have Reader on it, the process was a snap. This doesn't excuse MSFT. While DRM is a necessary evil, the notion of not being able to de-activate an older machine with a limited number of installs is user hostile at worst. Good case study for firms on HOW NOT TO IMPLEMENT DRM solutions. [link, ALL CAPS in original]
Despite the fact that the Gartenberg ran his program on files he legitimately purchased and the program requires an activated and valid MS Reader to run, this still sounds like a blatant violation of the anti-circumvention provisions of the DMCA, 17 USC 1201.

It appears as if Gartenberg BROKE THE LAW! If we were to ask Jack Valenti, I'm sure he would say that Gartenberg is a THIEF!

The company that made and distributes the software Gartenberg used appear to be a BUNCH OF DISGUSTING HACKER PIRATES!

Or, perhaps, this is a good case study for governments on HOW NOT TO IMPLEMENT ANTI-CIRCUMVENTION laws.

Comments (6) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 20, 2005

Report on Oral Argument in Blizzard v. BNETD Case

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Posted by Ernest Miller

Earlier today I spoke about the coming oral argument in Blizzard v. BNETD before the Eighth Circuit regarding EULA and DMCA issues (Oral Arguments in Blizzard v. BNETD). Well, we have our initial report on how it went from EFF (Upholding the Legality of Reverse Engineering). It sounds as if it didn't go as well as one would have hoped, but not entirely negative either:

"The judges were struggling with the right questions," said Schultz [EFF staff attorney]. "They're trying to balance copyright interests with the right to reverse engineer. They clearly recognized the public interest in reverse engineering, but they admitted this would be a hard case to decide."
Now we just wait and hope the judges understand the importance of the "Freedom to Tinker". via Copyfight

Groklaw has a more indepth report (Reports from the Blizzard v. BnetD Hearing).

The gist of his [Blizzard's representative] presentation was "Piracy, Piracy, Piracy". Through the emphasis in his voice, and the timing of his words, he wanted this court to understand that this was all about stealing. This was about the Defendant/Appellants taking something that did not belong to them. The overall sense of it was that he was trying to scare the judges and paint the Defendants/Appellants as being in the same group as the hackers and scam artists taking over people's machines with viruses and worms. He pointedly observed that Defendants/Appellants had used fifty icons from the Plaintiff/Respondents server application to make their own product.
Of course. It's always piracy, piracy, piracy. If you listened to the copyright holders, anything of which they don't approve is theft.

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Oral Arguments in Blizzard v. BNETD

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Posted by Ernest Miller

If there is a decision in Grokster later today, this news will probably be lost in the shuffle. That would be unfortunate.

Later today, the Eighth Circuit will hear oral arguments in the case of Blizzard v. BNETD, which involves EULA and DMCA issues regarding internet services, in this particular case, a videogame. The outcome of this case will likely be an important precedent.

EFF represents three open source programmers who reverse engineered the protocol used by Blizzard's client games to communicate with the game server. Thus, the open source programmers were able to create their own server.

Read EFF's press release: Consumers’ Rights at Stake in Eighth Circuit Videogame Case.

Groklaw explains why this case is important to open source programmers (Blizzard v. BnetD Hearing Tomorrow Morning).

LawMeme has a brief piece (Blizzard v. BnetD on Monday).

My analysis of the district court decision here: Major DMCA/EULA Loss - District Court Clueless in BNETD Case.

I was one of the first to write about the case extensively, beginning with the cease and desist letter sent back in 2002. LawMeme: Analysis of BNETD and Blizzard.

I think there is a reasonable chance for some sort of victory here as the lower court probably went too far. Of course, I wouldn't want to be arguing the case today ... the Grokster decision might have some impact (though it might not).

C|Net News' Declan McCullagh reports on the story, adding his usual (ridiculous) claim that EULAs should be enforceable so long as the terms are commonly expected, thus allowing copyright holders to decide what is enforceable (Putting the DMCA on Trial).


I've linked to a couple of reports on the Blizzard v. BNETD oral arguments (Report on Oral Argument in Blizzard v. BNETD Case). Now you can listen to them yourself via Joe Gratz, who has made a handy MP3 file (BnetD Oral Argument Audio Available).

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June 17, 2005

Ask Nicely and They'll Tell You How to Bypass Their DRM

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Posted by Ernest Miller

Frank Field points out a very interesting statement from Sony BMG regarding the CD DRM they've begun using (Sony BMG Explaining How To Circumvent Its Own Protections?). According to a Reuters wirestory on Yahoo! News, Sony BMG is telling its own customers how to bypass the DRM (Sony BMG Hinders Music Pirates with Protected CD).

Apple Macintosh users currently face no restrictions at all. What's more, if users go to a Web site to complain about the lack of iPod compatibility, Sony BMG will send them an email with a "back door" measure on how to work around the copy protection.
Frank questions whether or not this would violate the anti-circumvention provisions of 17 USC §1201. This does raise some interesting legal points.

The DMCA is very fact and technology specific. Unfortunately, the technical specifications for the DRM at issue aren't readily available. The company that produced the DRM is a UK company with the unfortunate name First 4 Internet. In addition to DRM, the company also produces a filtering program that can supposedly recognize pornographic images. [I've always wondered about these image analysis programs. If they're actually any good, I figure there are far better markets for their use than filtering pornography.]

In any case, the DRM can be found here: XCP-Aurora. Specifically, the DRM would likely be XCP2 - Press Protect.

XCP2 Press Protect is an effective content management solution for use on commercial pressed CDs. XCP2 protected discs are designed to have full playability across all players while ensuring unhampered sound quality. Additionally consumers are able to save and copy the content securely for personal use.
Presumably, this copy protection relies on the autorun feature of Windows to force those placing the CD into a PC running Windows to load and use DRM software. However, in order to play on regular CD players, standard audio tracks must also be present. We already know that this system doesn't work with Macintosh operating systems. I'd wager good money it doesn't work with Linux, either.

The first question, then, is whether such DRM is covered by the DMCA at all. It wouldn't appear that this initial protection, forcing use of DRM software on Windows machines, would be a technological protection measure under §1201(a), which requires that the technology, "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." Certainly that would not be the case for Macintosh and Linux, since the data is in the clear. It isn't even clear that this would be applicable in the case of Windows PCs, given that the data is provided in the clear. Presumably, a purchaser of the CD is tacitly authorized by the copyright holder to access the cleartext data, since the data is there for use on alternative operating systems. It is not clear why this authorization to access the cleartext data on some operating systems is rescinded because the user has Windows installed. After all, the Windows user could boot into Linux and access the cleartext with the copyright holder's tacit authority.

Under §1201(b), a technological protection measure "'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title." Once again, the loopholes for Macintosh and Linux users make me question whether this is applicable even to someone who uses a Windows computer. One also wonders what the "back door" measure is. Would it really be considered bypassing or avoiding? That isn't clear without knowing more about the technology. For example, is holding down the shift key when inserting a CD in order to disable autorun bypassing the DRM, or is it bypassing an annoying feature of Windows? Is holding down the shift key something that is not "ordinary operation"?

In any case, if this "force DRM upon load if Windows" technology is covered by the DMCA, then things get interesting. For example, is Sony BMG authorized to do this? Who can authorize people to circumvent the technology? This is probably controlled by contract with First 4 Internet. If it isn't then there would likely be grounds for First 4 Internet to sue Sony BMG (though very unlikely). After all First 4 Internet presumably has used its own technology to protect its own copyrighted works. It would also raise the question as to whether Sony BMG could sue third parties for redistributing the hack. Sony BMG might not have that right, though First 4 Internet would. See, Who Can Sue Who Under the DMCA?.

Likely, we'll never get the answers to these questions, which is too bad. Nor is it likely that Sony BMG will explain why, if they're so concerned with "casual piracy" as they put it, they'll explain to anyone who is frustrated by their DRM how to bypass it. Odd.

More about the recent adoption of CD DRM by major record labels here:
Record Companies Intend to Make Criminals of Us All
Record Labels Fear Apple's Lock-In?

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June 16, 2005

Macrovision's Magical DRM that Drastically Reduces P2P Distribution

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Posted by Ernest Miller

Well, my last two posts have been about Macrovision's copy-protection, this one might as well be too. See, Macrovision Invokes DMCA for Analog Copy-Protection Technology and Mark Cuban Has Questions About the Macrovision DMCA Lawsuit.

Anyway, the copy-protection scheme that Macrovision provides for DVD players is called Analog Content Protection. Macrovision claims that,

Macrovision ACP prevents or distorts copies of DVDs made over an analog interface to DVD recorders, PCs, digital video recorders (like TiVo, ReplayTV and Media Center PCs), in addition to D-VHS recorders (DVRs) and VCRs. By preventing copying onto digital devices, Macrovision ACP dramatically reduces the digital sharing of this content, including sharing among PCs, DVRs, and over peer-to-peer networks.
When you don't want to call something a lie, you might use the phraseology, "it is, at best, highly misleading."

Well, the above claim by Macrovision is, at best, highly misleading. At best, Macrovision prevents some users from uploading new files onto filesharing networks. It reduces this initial dispersion of the files. Unfortunately, that is a pretty high cost for very low return: Speed Bumps on Your Car.

In this next paragraph, Macrovision demonstrates excellent use of qualifiers and half-truths. I shall annotate.

Macrovision ACP is the world’s leading device-to-device analog content protection system [Thank you, 17 USC 1201(k), which mandated use of the technology], protecting over 4.5 billion DVDs for Hollywood and other rights owners since the format’s introduction [Protecting them from what? The internet? Commercial infringers? It is interesting that they protect "DVDs" and not "copyrighted works"]. Macrovision ACP closes the analog hole on nearly every DVD player, DVD recorder, PC, and digital video recorder. [Nearly. In a world where reproduction is effortless, "nearly" doesn't count for much.] It is supported through a worldwide ecosystem which includes extensive licensing to PC, CE and IC manufacturers. [Why does Macrovision act as if legal mandates aren't the real reason for this extensive licensing, like they did it themselves or something?] In support of this worldwide content protection ecosystem, Macrovision has developed industry-accepted test and certification facilities used to support proper functioning of ACP on nearly all manufacturer’s DVD players, drives, and recorders prior to market release. [There's that "nearly" again.]
Gosh these guys are good. No wonder they got Congress to mandate their technology.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management | File Sharing

Mark Cuban Has Questions About the Macrovision DMCA Lawsuit

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Posted by Ernest Miller

Mark Cuban has noted the Macrovision DMCA lawsuit and wonders what the heck it is all about (What Am I Missing Macrovision?). Apparently he doesn't read this blog, because then he would already know a lot more about the lawsuit (Macrovision Invokes DMCA for Analog Copy-Protection Technology). Anyway, Cuban asks,

Now maybe I’m reading this wrong, but the way I understand it, the CEO of MacroVision, a company that sells copy protection software to DVD publishers, is sending out a press release saying…

”Our software doesn’t work. It sucks. We can’t stop a bunch of little companies from writing software that completely busts our copy protection that we are selling for millions of dollars to publishers.”

If that’s the case, why in the world are DVD publishers paying Macrovision any money at all?

Pretty much because the DVD publishers were the main ones (other than Macrovision itself) who helped push Congress to mandate that VCR manufacturers include Macrovision technology Hollywood knew didn't work to stop commercial copyright infringement in the first place. But the point wasn't to stop commercial copyright infringement. The point was to inhibit personal use copying (you could always sell it back as a priviledge, later) and to establish control over the devices that citizens could use. The point was also to establish another precedent for Congress to mandate copy-protection technology in consumer goods, such as the Digital Audio Home Recording Act of 1992, which mandated the adoption of the Serial Copy Management System. (Congress sure mandates winning technologies, doesn't it?)
So just what is the purpose of having Macrovision copy protection on DVDs? To raise the price to consumers? To make things more difficult for them? To make sure its illegal to backup DVDs we have purchased?

Am I missing something here?

If the DVD publishers stopped ensuring that Macrovision got paid, then the whole DMCA scheme might be up. Why do DVD publishers continue to pay for the failed DRM scheme known as the Content Scrambling System or CSS? It certainly isn't because copyright infringers can't make copies of DVDs. It continues to be supported in order to control the manufacturers of DVD players and to support the DMCA. The real issue is that, without the DMCA, Hollywood fears a total loss of control over how its product is experienced and distributed. Its fear of challenging new business models, fear of competition, basically, fear of change that is driving Hollywood to hold on to the DMCA for dear life (that is, when they're not trying to get more DRM mandates, such as the Broadcast Flag, passed).
So hows bout we cut consumers a break and get this shit away from our DVDs.
The only way to do that is to elminate the anti-circumvention provisions of the DMCA.

I would also recommend those interested in understanding what DRM is really about read:


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June 15, 2005

Macrovision Invokes DMCA for Analog Copy-Protection Technology

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Posted by Ernest Miller

Constitutional Code reports that Macrovision is invoking the Digital Millennium Copyright Act against an analog "signal noise" reducer. This touches on the little-known 17 USC 1201(k), the "Macrovision provision" of the DMCA (Macrovision DMCA Lawsuit Targets DVD Copying Products). This isn't about digital anti-circumvention (the most commonly invoked), but analog anti-circumvention. The following is probably not directly invoked in the case, but will shed some background:

[1201](k) Certain Analog Devices and Certain Technological Measures. -
(1) Certain analog devices. -
(A) Effective 18 months after the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in any -
(i) VHS format analog video cassette recorder unless such recorder conforms to the automatic gain control copy control technology;
(ii) 8mm format analog video cassette camcorder unless such camcorder conforms to the automatic gain control technology;
(iii) Beta format analog video cassette recorder, unless such recorder conforms to the automatic gain control copy control technology, except that this requirement shall not apply until there are 1,000 Beta format analog video cassette recorders sold in the United States in any one calendar year after the date of the enactment of this chapter;
(iv) 8mm format analog video cassette recorder that is not an analog video cassette camcorder, unless such recorder conforms to the automatic gain control copy control technology, except that this requirement shall not apply until there are 20,000 such recorders sold in the United States in any one calendar year after the date of the enactment of this chapter; or
(v) analog video cassette recorder that records using an NTSC format video input and that is not otherwise covered under clauses (i) through (iv), unless such device conforms to the automatic gain control copy control technology.
(B) Effective on the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in -
(i) any VHS format analog video cassette recorder or any 8mm format analog video cassette recorder if the design of the model of such recorder has been modified after such date of enactment so that a model of recorder that previously conformed to the automatic gain control copy control technology no longer conforms to such technology; or
(ii) any VHS format analog video cassette recorder, or any 8mm format analog video cassette recorder that is not an 8mm analog video cassette camcorder, if the design of the model of such recorder has been modified after such date of enactment so that a model of recorder that previously conformed to the four-line colorstripe copy control technology no longer conforms to such technology. Manufacturers that have not previously manufactured or sold a VHS format analog video cassette recorder, or an 8mm format analog cassette recorder, shall be required to conform to the four-line colorstripe copy control technology in the initial model of any such recorder manufactured after the date of the enactment of this chapter, and thereafter to continue conforming to the four-line colorstripe copy control technology. For purposes of this subparagraph, an analog video cassette recorder ''conforms to'' the four-line colorstripe copy control technology if it records a signal that, when played back by the playback function of that recorder in the normal viewing mode, exhibits, on a reference display device, a display containing distracting visible lines through portions of the viewable picture.
(2) Certain encoding restrictions. - No person shall apply the automatic gain control copy control technology or colorstripe copy control technology to prevent or limit consumer copying except such copying -
(A) of a single transmission, or specified group of transmissions, of live events or of audiovisual works for which a member of the public has exercised choice in selecting the transmissions, including the content of the transmissions or the time of receipt of such transmissions, or both, and as to which such member is charged a separate fee for each such transmission or specified group of transmissions;
(B) from a copy of a transmission of a live event or an audiovisual work if such transmission is provided by a channel or service where payment is made by a member of the public for such channel or service in the form of a subscription fee that entitles the member of the public to receive all of the programming contained in such channel or service;
(C) from a physical medium containing one or more prerecorded audiovisual works; or (D) from a copy of a transmission described in subparagraph (A) or from a copy made from a physical medium described in subparagraph (C). In the event that a transmission meets both the conditions set forth in subparagraph (A) and those set forth in subparagraph (B), the transmission shall be treated as a transmission described in subparagraph (A).
(3) Inapplicability. - This subsection shall not -
(A) require any analog video cassette camcorder to conform to the automatic gain control copy control technology with respect to any video signal received through a camera lens;
(B) apply to the manufacture, importation, offer for sale, provision of, or other trafficking in, any professional analog video cassette recorder; or
(C) apply to the offer for sale or provision of, or other trafficking in, any previously owned analog video cassette recorder, if such recorder was legally manufactured and sold when new and not subsequently modified in violation of paragraph (1)(B).
(4) Definitions. - For purposes of this subsection:
(A) An ''analog video cassette recorder'' means a device that records, or a device that includes a function that records, on electromagnetic tape in an analog format the electronic impulses produced by the video and audio portions of a television program, motion picture, or other form of audiovisual work.
(B) An ''analog video cassette camcorder'' means an analog video cassette recorder that contains a recording function that operates through a camera lens and through a video input that may be connected with a television or other video playback device.
(C) An analog video cassette recorder ''conforms'' to the automatic gain control copy control technology if it -
(i) detects one or more of the elements of such technology and does not record the motion picture or transmission protected by such technology; or
(ii) records a signal that, when played back, exhibits a meaningfully distorted or degraded display.
(D) The term ''professional analog video cassette recorder'' means an analog video cassette recorder that is designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for a lawful business or industrial use, including making, performing, displaying, distributing, or transmitting copies of motion pictures on a commercial scale.
(E) The terms ''VHS format'', ''8mm format'', ''Beta format'', ''automatic gain control copy control technology'', ''colorstripe copy control technology'', ''four-line version of the colorstripe copy control technology'', and ''NTSC'' have the meanings that are commonly understood in the consumer electronics and motion picture industries as of the date of the enactment of this chapter.
(5) Violations. - Any violation of paragraph (1) of this subsection shall be treated as a violation of subsection (b)(1) of this section. Any violation of paragraph (2) of this subsection shall be deemed an ''act of circumvention'' for the purposes of section 1203(c)(3)(A) of this chapter.
Phew! Did you get all that? Most of it doesn't directly apply to this case, but I thought readers might want to look at the extent of format and technology micromanaging that Congress thinks is necessary in copyright law. All this to keep people from copying VHS to VHS (which will soon be dead technology). Don't you love the law? The Home Recording Rights Coalition has some of the legislative history of this provision (Macrovision Legislative History).

This is called the "Macrovision provision" of the DMCA because it essentially mandates use of Macrovision's Analog Copy Protection in VCRs. Wouldn't you love to have your technology mandated by law? Must be nice.

One example of the products under fire is the GoDVD! Model CT-2. Because it is not actually a VCR it doesn't fall under 1201(k), but it would likely run afoul of 1201(b), which makes it illegal to distribute anti-copy protection devices. However, 1201(k) makes it quite clear that Congress considers this technology copy protection technology, and because it is mandated for VCRs, makes arguing around it quite difficult.

Read the Macrovision press release: Macrovision Files Lawsuit Against Sima and Interburn’s DVD Copying Products.

Comments (3) + TrackBacks (0) | Category: Digital Millennium Copyright Act

June 14, 2005

June 13, 2005

McCullagh and Homsi on DRM Laws

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Posted by Ernest Miller

Declan McCullagh has co-authored a paper on DRM with Milana Homsi (New Article on Digital Rights Management: Survey of Laws and Their Problems).

Read the 12-page paper: Leave DRM Alone: A Survey of Legislative Proposals Relatingto Digital Rights Management Technology and Their Problems [PDF].

The article basically condemns any law that would mandate or inhibit DRM in favor of a DRM state of nature. The article does support DMCA reform to level the playing field for DRM.

For the government to remain truly neutral on DRM, of course, section 1201 of the DMCA would have to be modified to permit circumvention unless it is being done as part of an actual act of copyright infringement.

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Even Copyright Infringing Spammers Deserve Free Speech Protections

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Posted by Ernest Miller

Denise Howell endorses (Putting The DMCA To Good Use) Kevin Marks's idea to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to attack "spamblogs" (Using the DMCA for Good).

There are spammers who copy entire blog posts from others to act as fresh bait for their search spoofing tricks. This is commercial use, and a violation of most CC licenses (and indeed default copyright).Stephanie Booth recently did this [issued a DMCA notice and takedown] to a spammer at who plagiarized one of her posts on Jennifer Garner, on what was a Google Adsense supported spamblog. When she sent a DMCA notice, they took down the page and apparently lost their Adsense status. [links in original]
Although I sympathize with the desire to inhibit spamming and enforce copyright, I must demur. I cannot endorse use of the DMCA's notice-and-takedown provisions, unless there are no other reasonable legal alternatives.

The problem with the provisions is that they lack important procedural safeguards for free speech. Copyright holders can easily, with virtually no justification and no judicial oversite, cause a website to remove speech that is perfectly legal for days, if not weeks. There is no requirement that the copyright holder actually file a lawsuit, if there is a counter notification. There is no recourse for damages for false takedown notices as long as they were issued in "good faith." This makes the DMCA ripe for abuse (EFF: Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands) and, among other reasons, an unjust law.

We should not use unjust laws, giving them legitimacy, unless there are no reasonable alternatives. In this case, there are a number of alternatives, such as sending a polite request, sending a threatening legal letter, contacting the ISP directly, or even suing for copyright infringement (statutory damages are your friend).

We should not be so quick to use law to terminate speech merely on our say so. You say spam, I say free speech (until a court rules otherwise).

Please see the comments for a continued debate.

Comments (13) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression

June 10, 2005

DRM and Lock-In: Apple vs. Microsoft

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Posted by Ernest Miller

Yesterday, C|Net News ran a story I initially didn't pay much attention to about Microsoft potentially jumping into a subscription music service (Microsoft Planning Music Subscription Service). Yawn. Who isn't?

So, I didn't even read the story. Luckily for me, Good Morning Silicon Valley did (Psst, Kid, You Really Gotta Try Some of This WMA. First Taste is Free.). reports that Microsoft, long envious of Apple's iTunes storefront and its grip on the digital music market, is planning an iTunes exchange, a service that would enable us to download a Microsoft-formatted version of any song we've purchased from the iTunes Store.
Well, that would be quite a trick. This is where the DRM really hits the road.

Look at it from Microsoft's point of view. Every song you purchase from iTunes with Apple's proprietary, DMCA-protected DRM is one more bit of lock-in to Apple. When you've got a hundred or two hundred or more of your favorite (let's face it, you buy your favorites first) songs in iTunes format, you've got some significant lock-in in the form of very high switching costs. Just the way Steve Jobs likes it.

And that lock-in is growing at a rate of millions of songs every month.

What is a would-be player in the digital music distribution world to do? One option, of course, is to do what Microsoft apparently plans to do, which is pay an unknown sum (but likely rather substantial ) to let people download (again) music they've already purchased from Apple. There is the mechanical license, of course. And you don't think the artists and recording companies are going to let the music publishing companies make money and they don't, do you? This is going to be expensive. Microsoft can probably afford it, now, before digital downloading really takes off. Can you say "barrier to entry"? I knew you could.

Of course, it remains to be seen whether Apple will make it easy for Microsoft to pull such a switch or not. I imagine that, if they did, they would expect require Microsoft to do the same. Although Apple probably will cooperate with Microsoft as much as they did with Real (Apple Gets Real Serious About Harmony).

In any case, how many times do you think this game of downloading again, and again, and again can go on? We're going to see some consolidation pretty darn quick. At least for now, as the players try to capture market share at all costs, consumers will probably be okay. If one of the music services goes out of business, their customers will almost certainly be picked up with a generous transfer by one of the other services (most likely Microsoft, since they'll most likely be the ones behind the DRM).

One of the scary things is, of course, that we will no longer have the current oligopoly of the music industry, but a duopoly of DRM camps. And once you've settled into lock-in with one DRM provider for music, are you going to choose another for movies, or television? Ultimately, we are probably looking at a duopoly for all mass-produced multimedia content.

And this is supposed to be good for artists, right?

Comments (10) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

Raff Videoblogs an FCC Indecency Decision

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Posted by Ernest Miller

Andrew Raff Rox0rz! Yesterday, on IPTAblog, he posted what is likely the first vblog on a particular FCC indecency decision (And Now, Something Different).

I want one of these for every FCC decision.

Download the video: Arrested Development, Indecency and the FCC [Quicktime, 17.6MB, 5min].
(I had a little trouble with the playback, your mileage may vary.)

Read the 4-page decision it is based on: In the Matter of FOX TELEVISION STATIONS, INC., Memorandum and Order [PDF].

BONUS: Andrew Raff says he got the video of Arrested Development off a DVD. That likely means he violated the DMCA. Way to go, Andrew!

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression

June 09, 2005

Why Not DRM and DMCA for Everything?

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Posted by Ernest Miller

Earlier this week I noted that the Supreme Court would not be hearing the Lexmark v. Static Control case (Supreme Court Rejects Lexmark's DMCA Appeal). Lexmark had been hoping to the use the Digital Millennium Copyright Act's anti-circumvention provisions to prevent third-parties from refilling used toner cartridges. A similar case, Chamberlain v. Skylink, involving third-party garage door opener remotes has also been rejected by the courts (this one on quite flimsy grounds - Judge Asserts Pseudo Distinction to Preserve DMCA).

Where is the outrage from DMCA proponents?

Many of the arguments for supporting the DMCA seem exceedingly applicable to the world of Lexmark and Chamberlain. So why isn't there a big movement on their behalf?

For example, one often hears the argument that DRM allows different business models to flourish, such as those based on price discrimination (This Summer's Horror Flick: "It's from the Federal Government, and It's Coming to Help Us"):

Imagine three customers. A wants a CD for his home stereo. B wants an extra copy to play in his car as well. C wants both of those uses, plus another copy on his iPod. A logical structure that would benefit all would be three different prices, say, $12 for A, $14 for B, and $16 for C.

Under the theory of H.R. 107, [an anti-DMCA bill] this structure is not possible. All three customers must receive the same package of rights, and all must be charged the same price. This means the price will wind up somewhere in the middle, probably around $14. A is not allowed to say: "Hey, I only want one use; how about giving me a price break?" C is happy, of course, since he gets subsidized by A, which may show that the constituents for this bill are rich yuppies who can afford $500 iPods and like being subsidized by those who are less well off.

Of course, as a result, some As will be priced out of the market, so the cost of the CD will rise further, which will price some Bs out, and so on. Price will reach an equilibrium, but at the cost of significant loss of consumer benefit.

Okay. Let's assume arguendo that this is a valid argument. Why isn't it valid for Lexmark as well? Wasn't this precisely what Lexmark was trying to achieve with its pricing structure for toner cartridge refills? Why isn't this argument valid for Chamberlain? Some people don't need to buy replacement garage door opener remotes. Without a DMCA that protects Chamberlain's business model, these people will have to pay more for their garage door openers.

How many business models are being squelched because the supporters of the DMCA don't seem to care about the Lexmarks and Chamberlains of the world?

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

June 06, 2005

More on "Restricted Use" vs. "License"

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Posted by Ernest Miller

Earlier, I responded to Prof. Michael Madison's conjecture about the distinction between a "licensed" work and one with built-in DRM. Basically, I didn't get the distinction (DRM: Add On or Integral Part?). Madison has replied, trying to clarify his point (Tom Waits and Creative Commons).

There’s nothing in copyright law (even pre-DMCA copyright law) that says that the author can’t produce, and sell, a thing characterized as a “DRM-enabled-CD.” You can’t “license” a “book,” but so far as I know, and aside from vague prohibitions on equitable servitudes in chattels, there’s no clear rule holding that you can’t sell a “restricted use book.”
I still don't get it. What is the difference between a "restricted use book" and a licensed book as far as copyright is concerned? You can embed technical protections in a book, for example, using red print in order to thwart photocopiers. Does this, should this, change our copyright analysis if someone does photocopy a portion of the book? I would say, no, we're still looking at some sort of implied contract, covenant, negative easement, what have you and I don't think that flies with copyright, which should essentially exhaust all implied contracts regarding copyright.
Suppose the digital download service characterizes the product that you buy (not license) as a DRM-enabled-CD. Suppose further that the point of the DRM is to limit playback to you and you alone. You can move the file from device to device, but it will play only on your devices (say, your iPod) – set aside the technical reality that this won’t actually work. Now, run the DRM-enabled-CD through the Section 106 rights, with the Section 107, etc. limitations, and ask: What happens when you loan your iPod to a friend? Are you liable for copyright infringement?
What if the characterization (not license) for the DRM-enabled-CD is that the point of the DRM is to prevent quotation. You can do anything, except quote from the CD. Has this effectively vitiated fair use rights? What if the seller sold the one with the DRM for $1, characterizing it as the anti-fair-use-rights version and the one without the DRM for $10. Should this make a difference in the analysis if someone does manage to quote from the DRM-enabled-version? I don't think it should or how one could successfully make the legal argument for a distinction, absent a contract.
And before this sounds too fanciful and metaphysical, consider the Creative Commons license. No one assents to CC licenses – the “legal code” versions of the CC “deed” purport to constitute a sort of CC-wrap, but that language is so far removed from ordinary CC license notices that it really stretches the shrinkwrap fiction beyond the breaking point. I can’t imagine a court enforcing a CC license on a contract theory. So, suppose a user of a CC-licensed work violates the license. Does the author of the work have a remedy? I’d like to think so. But I suspect, also, that the only legitimate way to get there may be to argue that the user accessed a “CC-licensed work,” no assent to terms involved, rather than a “work.”
The question of Creative Commons license enforcement is a very involved one that I don't want to address right now. However, there is a distinction. Creative Commons licenses purport to give people rights above and beyond existing copyright law. For example, normally, reproduction and distribution would be infringement, but Creative Commons licenses frequently allow people to do this. On the contrary, DRM-enabled-CDs purport to take away rights that copyright law reserves to the public.


Madison responds (More on CC and Things). With regard to Creative Commons:

[T]hat depends on the relevant CC license and the relevant term. CC licenses give authors some rights that copyright doesn’t – most importantly, attribution/non-attribution rights. (Also, the commercial/non-commercial distinction maps only imperfectly to the “commercial” dimension of fair use.)
CC doesn't give authors any rights that copyright does not. If you want to make fair use of my works, there is nothing that CC can say on the matter. However, if you wish to infringe copyright, then CC provides the terms under which one may do so.

There seems to have been a misunderstanding on some of the other disagreements:

More generally, Ernie argues (I infer) that copyright law means that you can’t design information goods in ways that defeat statutory rights, so my “DRM-limited-CD” is no different, really, than a book wrapped with a “no fair use” label (my simplifying example, not his).
That's not what I'm arguing at all. It should be perfectly legal to sell DRM-encumbered books, CDs, what have you. However, it should be just as perfectly legal to circumvent these restrictions. There might be exceptions, antitrust is one possibility, copyright misuse another, but in general, I have nothing against DRM-encumbered items. I oppose legally enforcing that DRM.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Digital Rights Management

May 24, 2005

May 22, 2005

May 13, 2005

May 12, 2005

May 09, 2005

March 30, 2005

Remind Me of the Reason for the DMCA Again?

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Posted by Ernest Miller

One of the best commentaries on the oral argument in the Grokster case, which was before the Supreme Court yesterday, comes from Timothy K. Armstrong, a DC appellate attorney/Harvard LLM student. Read the whole thing: A Few Notes from the Grokster Argument.

I found this passage particularly interesting:

At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.

MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel. [emphasis added]

We don't have the actual transcript yet, so it isn't entirely clear precisely what MGM has admitted or what sort of estoppel would apply. However, if the gist of this exchange is true, then MGM has conceding something that Hollywood has been loathe to concede and I've never, ever heard them actually concede in public, let alone in a courtroom: that format-shifting or space-shifting outside the scope of 17 USC 1008 (which basically covers DAT and cassette tape players) is a lawful activity.

Now no one ever really expected Hollywood to go after people for ripping their CDs to an MP3 player. That would be foolishness on a grand scale, since courts are likely to expressly find such actions to be legitimate fair use. So they haven't. Still, they seem to base a lot of their legal theories and rhetoric on the fact that such space-shifting is illicit, particularly with regard to DVDs.

Ignoring the DMCA for a moment, if ripping your CD to MP3s is legal fair use space-shifting, why isn't ripping your DVD to DiVX also legal fair use space-shifting? What would be the principled distinction between the two types of space-shifting? I can't imagine one.

So, remind me of the reason for the DMCA again? It doesn't stop determined infringers and mostly keeps companies from selling devices to enable all sorts of lawful uses. And, if ripping a DVD is a lawful use, how is it that copyright protection turns it into unlawful "access"?

UPDATE 1000 PT - 31 Mar 2005

Constitutional Code also addresses this concession ( MGM's Concession and the DMCRA).

Comments (7) + TrackBacks (0) | Category: Digital Millennium Copyright Act | File Sharing

November 04, 2004

The Importance Of ... Law and IT: Bnetd and Lexmark

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Posted by Ernest Miller

The fifth and sixth episodes of my audio series, The Importance Of ... Law and IT, are up on IT Conversations.

The fifth show focuses on the terrible decision in Blizzard v. bnetd, which I originally wrote about on LawMeme (Analysis of BNETD and Blizzard). My guests were law Prof. Michael Madison and freelance DMCA expert Seth Finkelstein. Get the show here: Bnetd v. Blizzard.

The sixth show dealt with the recent DMCA decision in the Lexmark v. Static Control case. My guests were law student/copyfighter Joe Gratz, EFF staff attorney Jason Schultz and undergrad/copyfighter Derek Slater. Get the show here: Knock-Off Printer Cartridges.

Once again, I would like to thank my guests for two most excellent shows.

Comments, suggestions, etc. welcomed.

Comments (0) + TrackBacks (0) | Category: Audio Edition | Digital Millennium Copyright Act

October 01, 2004

Major DMCA/EULA Loss - District Court Clueless in BNETD Case

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Posted by Ernest Miller

Ed Felten reports that the long-awaited decision in the BNETD case has finally been released (DMCA Ruling in BNETD Case). It is a significant loss for the BNETD defendants and clear evidence of a judge who doesn't get it.

Read the 36-page decision: Davidson & Assoc. v. Internet Gateway [PDF].

EFF press release: Dangerous Ruling Menaces Rights of Free Software Programmers.

Seth Finkelstein pulls out some of the more heinous quotes from the decision (Blizzard v. BNETD (Davidson v. Internet Gateway) Fair Use/DMCA horrors).

The basic facts are that a group of open source developers reverse engineered Blizzard's "" so that people could run their own servers to host multiplayer versions of Blizzard games, such as Diablo and Starcraft. The reason was that Blizzard's servers had many problems and didn't allow people to organize games the way they desired. Of course, such a project threatened the executives at Blizzard and so they sued with many different copyright, trademark, contract and DMCA claims. After many procedural issues, the EULA and DMCA claims were all that was left.

This case follows the reasoning of Bowers v. Baystate Technology, which upheld a clickwrap contract prohibiting reverse engineering. Bowers is one of the most reviled recent opinions in software law, and that is saying something. Basically, this decision, like Bowers, holds that clickwrap contracts against reverse engineering are binding. It is hard to believe that this bit of ridiculousness continues to be upheld by judges.

The court dismissed the copyright misuse claim because the issue was contract law, not copyright law and prohibiting competition is, apparently, not an example of copyright misuse in the first place.

The DMCA aspect of the decision is a mess and I think there will be good grounds for an appeal. In particular, the ruling completely ignores the Skylink decision:

The Court finds that the defendants' actions constitute a circumvention of copyright under the DMCA. It is undisputed that defendants circumvented Blizzard's technological measure, the "secret handshake" between Blizzard games and, that effectively controlled access to mode. It is true the defendants lawfully obtained the right to use a copy of the computer programs when they agreed to the EULAs and TOU. The statute, however, only exempts those who obtained permission to circumvent the technological measure, not everyone who obtained permission to use the games and See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 444 (2nd Cir. 2001) (court rejects argument that because DVD buyer has authority to view DVD, buyer has authority of copyright owner to view DVD in a competing platform; court finds that argument misreads § 1201(a)(3) because the provision exempts from liability those who would "decrypt"--not "use"-- an encrypted DVD with the authority of copyright owner). The defendants did not have the right to access mode using the bnetd emulator. Therefore, defendants' access was without the authority of the copyright owner.
First, I'm not sure what "circumvention of copyright" is. This phrasing seems to indicate a poor understanding of the structure of the DMCA, which is about rights that aren't already covered by standard copyright law.

It is isn't clear to me that the "secret handshake" is circumvented. Blizzard games send an encrypted packet with a key. The BNETD servers ignore the key (not that they would be able to do anything with it). If that constitutes an access control device, there is not much that wouldn't.

Again, it comes down to the EULA. The EULA says you can't do something, you are prohibited from doing it. Period.

Welcome to the world of the MPAA DMCA decisions. Of course, we shouldn't put too much hope into the Skylink decision, as it basically leaves it up to judges to determine whether any particular use was what Congress meant to punish with the DMCA. Does it look sort of like copyright infringement, a Skylink court might ask.

The reverse engineering provision (supposed "exemption") of the DMCA isn't looking too healthy either. After reading the decision, I'm not really sure what you can use it for:

The Court finds that the defendants' actions constituted more than enabling interoperability. The bnetd emulator developed by the defendants always allows the Blizzard game to access mode features even if the user does not have a valid or unique CD Key, because the bnetd emulator does not determine whether the CD Key is valid or currently in use by another player. Unauthorized copies of the Blizzard games were played on bnetd servers. Then, defendants distributed the bnetd program for free. Because the bnetd source code was freely available, others developed additional emulators based on the bnetd source code. In addition, the defendants distributed binary versions of the bnetd program to make it more convenient for users to set up and access the emulator program. Finally, the defendants did not create an independently created computer program. The bnetd program was intended as a functional alternative to the service. Once game play starts there are no differences between and the bnetd emulator from the standpoint of a user who is actually playing the game. Based on these facts, defendants' actions extended into the realm of copyright infringement and they cannot assert the defenses under § 1201(f)(1). See 17 U.S.C. § 1201(f)(1). Therefore, the Court will grant summary judgment to Blizzard on Count II of its second amended complaint as to the anti-circumvention claim and deny defendants' motion for summary judgment on this claim.
If you reverse engineer for interoperability, in order to do the same thing as another program, apparently that extends "into the realm of copyright infringement." What that means is unclear. Why it takes away your defense under § 1201(f)(1) is similarly unclear. Is the program infringing or not? If not, why don't you get the exemption?

What the heck can you use the reverse engineering exemption for under this logic? You can interoperate, but only for purposes that are entirely different? Huh?

I also like the part that open source software is more likely to violate the DMCA because it has "limited commercial purpose." You see, if you don't or can't sell it, you are even more evil according to this ruling.


Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act

September 08, 2004

The Importance Of ... Law and IT: Garage Doors and the DMCA

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Posted by Ernest Miller

Episode the third of my new audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show focuses on the recent appellate decision on the DMCA's anti-circumvention provisions, Chamberlain Group, Inc. v. Skylink Technologies, Inc.. Previous coverage here: Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test and Commentaries on the Federal Circuit's Skylink Decision.

Get the show here: Garage Doors and the DMCA.

Once again I had the pleasure of hosting experts on the issues:

Thanks to everyone for a great show!

Slowly, but surely, I think I'm getting the hang of this audio format. Suggestions, recommendations, etc., appreciated.

Comments (1) + TrackBacks (0) | Category: Audio Edition | Digital Millennium Copyright Act

September 02, 2004

Chamberlain v. Skylink in the Court of Public Opinion

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Posted by Ernest Miller

What court of public opinion? The only people paying attention seem to be a smattering of the tech journals and IP law bloggers, with only a single major media source weighing in. Call me crazy, but I think this is a major consumer rights issue, with lots of repercussions for the tech industry and innovation. Why isn't this story getting more play?

Heck, even Slashdot published the story, but not on their front page (Universal Garage Door Opener OK under DMCA).

The biggest media source to weigh in on the issue so far is the LA Times (reg. req.), which has a very brief story that will only confuse people who aren't already familiar with DMCA issues (An Open-and-Shut Copyright Case).

One of the problems with the LA Times story is that the unwary reader may think the case involved whether garage door openers were subject to copyright, and the decision was that they were not, which is incorrect:

Chamberlain had sued Skylink under, of all things, the 1998 Digital Millennium Copyright Act. The act was meant to restrain Internet piracy by making it illegal to break the digital locks that protect a piece of intellectual property — an electronic book, say, or a CD or DVD.
As if it were a surprise that Chamberlain sued under the DMCA. This was an obvious tactic that critics of the DMCA have noted was available for years. It isn't as if Chamberlain was the only company doing this, perhaps the LA Times could have mentioned a little company called Lexmark. [Correction: The article does mention "makers of prosaic products such as ... printer ink cartridges"] The clear implication here is that the software in garage door openers is not worthy of the same protections as Hollywood's content (how appropriate for the LA Times to think this), but that is not what the court said. Although there was some dispute over the copyrightability of the code at issue, for purposes of the decision, the court assumed the software had the same copyright protections as Spider-Man 2.

SecurityFocus, which is an excellent news source for tech/policy stuff, has a solid piece on the case (Appeals court slams garage door DMCA claim). has a short piece (Garage door copyright ruling upheld on appeal).

LinuxElectrons sees only positive aspects in the decision, failing to note what the decision still doesn't permit (Court Ruling Opens Door to More Competition in After-Market Parts).

Over on Freedom to Tinker, Ed Felten has some really excellent thoughts and comments on the decision (Skylink, and the Reverse Sony Rule). Highly recommended reading!:

For most of the opinion, before veering away at the last minute, the court seems to be heading toward a kind of reverse Sony rule. The original Sony rule, laid down by the Supreme Court in 1984, says that making and selling dual-use tools -- tools that have both significant infringing uses and significant non-infringing uses -- does not constitute contributory copyright infringement. (Selling tools that have only non-infringing uses is obviously lawful, and selling tools that have only infringing uses is contributory infringement.)
Stefan Bechtold, a fellow at Stanford Law School's Center for Internet and Society, lists three reasons he thinks the decision is important (DRM and Competition on Downstream Markets).

Derek Slater hasn't written his analysis of the case yet (some lame excuses about traveling cross country and starting school, or something), but he has put together some excellent links for further background on the case (Skylink Linking).

Previous coverage:

Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test
Commentaries on the Federal Circuit's Skylink Decision

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act

September 01, 2004

Commentaries on the Federal Circuit's Skylink Decision

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Posted by Ernest Miller

I've blogged my initial thoughts on the just-decided Skylink [PDF] case here: Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test.

I believe the case has much inspiring language, though the actual practical implications of the case aren't nearly as positive and may serve to only strengthen the DMCA and reduce the need for reform. It is a complicated decision, leaving many unanswered questions, so there is bound to be much more discussion and debate.

As such, I'll be collecting other initial commentaries here, updating as necessary. By the way, the first wave of commentary comes before any news outlets have picked up the story. Advantage: blawgosphere.

UPDATE 0620 PT; 1130 PT (Still no mainstream media); 1145 PT C|Net News

Jason Schultz on Copyfight - pulling out some of the more interesting paragraphs from the decision (Skylink Wins! Fed. Cir. shoots down Chamberlain's DMCA claim):

It's a lengthy and interesting unanimous opinion by Judge Gajarsa, with some real gems reining in some of the overbroad and much-abused language of Section 1201:
Seth Finkelstein, claiming to be an Eeyore (Chamberlain v. Skylink (Garage Door Openers), DMCA, and fair use):
All this is saying is, basically, that if there's no conflict between fair use and anything else, the DMCA can't be used as, in effect, a patent for any product. That's nice. It's good for other businesses. But it doesn't address the issues of DMCA reform, which are exactly that conflict.
Finkelstein and I don't disagree as much as his response to my initial two-paragraph post would indicate. I guess my ambivalence about the decision didn't come through strong enough.

Derek Slater promises even more later, but here is initial reaction (Skylink Wins and so too might DMCA Reform Advocates):

Ernest is on the case - he captures my sentiments, particularly with regard to it inspiring and frustrating.  I'm going to chew on this on my way to NY this evening - it's a lot to take in.  The copy and access control distinction is indeed rather murky.  The court boldly brought 1201(c) to bear (SethF, I imagine, is as surprised as I am).  The court says anti-trust and misuse still apply, regardless of the DMCA.  The court even says that Chamberlain's interpretation of the DMCA would make it borderline irrational under the test expressed in Eldred. [emphasis, links in original]
Wendy Seltzer on EFF's Deeplinks in a brief note (DMCA Doesn't Lock Garage Doors, Fed. Circuit Affirms):
With its reading of fair use, "authorization," and the dangers of copyright misuse by those who would block interoperability, the Fed. Circuit adds some important nuance to the DMCA. "[T]he DMCA emphatically did not 'fundamentally alter' the legal landscape governing the reasonable expectations of consumers or competitors."
James Grimmelmann on LawMeme (Federal Circuit Adds a Rule of Reason to the DMCA):
As I see it, under the district court's reading, a future Chamberlain might have been able to strip the "authorization" by drawing up the right warranties. But now, since fair use almost certainly shields the consumers here from any copyright claims no matter what Chamberlain says, the DMCA claim just plain fails. This case is a reverse Aimster: someone took one appeal too many and wound up watching the circuit judges do some clever (or perhaps, too-clever) interpretation to come out with a balancing test that's a disaster for the appellant's putative allies.

UPDATE 1 - 0620 PT

Cory Doctorow on BoingBoing (Garage door openers aren't copyrighted, don't get DMCA protection)

Anyway, the court delivered the clearest and most ringing condemnation of the overbroad application of the DMCA yet:
Techdirt (Court Opens Garage Doors, But Sets Murky Precedent)
The court basically wants to establish some sort of balancing "test" for the DMCA. However, the DMCA and certain decisions associated with it are fairly problematic to begin with, so the test is somewhat convoluted and not entirely reasonable. The good part is that the court seems to recognize just how troublesome the DMCA is as written. The problem is that they don't really know what to do about it to bring it back in line with where it should be to avoid its misuse for anti-competitive purposes. It sounds like a bit of cognitive dissonance as the court tried to resolve the realization that the law really was as bad as some made it out to be with the idea that Congress couldn't possibly have meant for it to be that bad.
UPDATE 2 - 1130 PT

Dennis Crouch, who broke the story and who I linked to in my original post, but forgot to add here (Federal Circuit: DMCA does not create a new property right for copyright owners):

In a well reasoned opinion, the Federal Circuit (GAJARSA) affirmed a district court's dismissal of a suit arising under anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA).....The court's basic premise is that an element of a DMCA cause of action is an underlying copyright violation -- without such a violation, there can be no remedy.
Jesse Walker on Reason's Hit and Run with a very brief post (Skylink Survives)
The courts have brought back a decision in the Skylink case, an important intellectual-property skirmish involving garage-door openers. (And you thought all the copyright wars were over Buffy fan fiction!)
Engadget (Skylink: 1, DCMA: 23,040,923,410)
Well, it’s a start: it was ruled today that Skylink successfully defended itself from the DCMA-wielding Chamberlain. If you’re not familiar with the case, Skylink, who manufactures 3rd party garage door openers, reverse-engineered Chamberlain’s garage door devices and made their own universal openers for Chamberlain’s equipment (think universal remotes for garage doors). Of course, this is a very good thing that we’re not all of a sudden copyrighting things like garage door openers; but you have to wonder why Chamberlain would care, since you still have to buy their garage doors to begin with.
Law Prof. Michael Madison has some very nice comments on the decision (Copyright in Everyday Things)
But still. The court relied in large part on what seems like an obvious proposition: consumers have the right to use objects that they buy (such as garage door opening systems), even when those objects contain embedded software. (There’s an important discussion of “access” as a legal interest divorced from copyright protection, but I’ll leave that alone for now.) For its part, Chamberlain hadn’t done or said anything to negate that expectation. So consumer “access” to the copyrighted control codes wasn’t unauthorized; it was part of the point. The sentence in the opinion that caught my eye is this one: “Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke. “

Pretty cool, no? But this is the same Federal Circuit that ruled in Bowers v. Baystate Technologies (via a panel of different judges) that enforced a “no reverse engineering” term in a software shrinkwrap license. Could Chamberlain put a shrinkwrap-style agreement on the boxes that contain its garage door openers, requiring that its consumers buy only Chamberlain-brand replacement remote controls?

Read the whole thing.

Adam Thierer raises some interesting points on the Technology Liberation Front (DMCA Will Not Keep You From Opening Your Garage Door):

More importantly, this case re-affirmed some fundamental principles found in the interesting and important case of Sega Enterprises, Ltd. v. Accolade (9th Cir. 1992).In Sega, the court held that reverse engineering could be considered fair use when it was the only way to achieving interoperability with the system in question. If memory serves me right, Accolade had opened up and studied Sega video game cartridges to figure out how to develop their own line of games for the old Sega Genesis video game platform. Sega didn’t appreciate that and sued. Luckily, they lost too.
The Blog of the American Constitution Society has a brief note (Wednesday News Roundup)
The Federal Circuit Court of Appeals issued a ruling late yesterday that creates a balancing test for implementing the Digital Millenium Copyright Act. The court found that the DMCA contained provisions that would create absurd results if interpreted literally, so it identified a balancing test to save the statute consistent with its aims. The case involved whether a generic-brand garage door opener violated the DCMA's anti-circumvention provisions. The Electronic Frontier Fountation has more on the case including a copy of the decision.
UPDATE 3 - 1145 PT

Chris Meadows agrees with Seth Finkelstein's assessment (Opening the garage door to Fair Use).

The Computing Research Policy Blog fears that chilling effects for computer scientists will continue (Court Rules 3rd Party Garage Door Openers Don't Violate DMCA).

C|Net News's Declan McCullagh appears to be the first mainstream media with a report and quotes Berkeley's Deirdre Mulligan (Judges OK garage door openers):

"What the court says is that consumers have expectations about the way they'll be able to interact with products that they purchased," said Mulligan, whose clinic filed briefs siding with Skylink. "The DMCA didn't create this new right that undermines those expectations...This particular decision is very good for consumers and good for technology companies. It's going to promote competition."
EFF's press release (Court Ruling Opens Door to More Competition in After-Market Parts):
Jennifer M. Urban, the lead attorney on the case at the Samuelson Clinic, said, "The court recognized that copyright law grants rights to consumers as well as copyright holders and held that the DMCA did not wipe those rights away."

"Chamberlain's lawsuit sought to stifle competition by misusing the DMCA," said Deirdre K. Mulligan, Director of the Samuelson Clinic. "Congress warned of such abuses and we're pleased that the court rejected this view to avoid harming consumers."

"When consumers buy a garage door opener, they have the right to use whatever remote they want with it, even one from another company," said Jason Schultz, EFF Staff Attorney and a co-author of the brief. "In Chamberlain's view, it's their remote or no remote. Thanks to this decision, they've now been shown that the law views it differently."

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Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test

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Posted by Ernest Miller

The Federal Circuit Court of Appeals has upheld the district court summary judgement decision in Chamberlain v. Skylink, which had held a third party garage door opener manufacturer not liable under the anti-circumvention provisions of the Digital Millennium Copyright Act (codified at 17 USC 1201). My sharply critical take on the district court case can be found on LawMeme (Judge Asserts Pseudo Distinction to Preserve DMCA). The case went to the Federal Circuit for some complicated jurisdictional issues regarding patent law that I won't address. via Patently Obvious

This is the most important DMCA decision since the MPAA DeCSS case decided by the Second Circuit in Universal v. Corley. The decision includes a lengthy, at times inspiring, at times frustrating, analysis of the purpose and structure of the DMCA anti-circumvention provisions. In the end, the court determines that a strict construction of the statute would lead to absurdities as many of the DMCA's critics have argued. In order to solve this problem, the court creates out of the complicated language of the DMCA a balancing test that is not strictly defined, but apparently reconciles Corley with Skylink. Among other things, the balancing test makes the distinction between § 1201(a) and § 1201(b) liability quite murky, and puts the whole reason for DMCA exemptions under the Copyright Office into question. This is a complicated decision, and there are no clear answers to many questions, however, it is a critically important one for innovation, creativity and the future of copyright law. It is sure to be extensively debated and discussed in the coming weeks, months and even years.

Read the 45-page appellate decision: Chamberlain Group, Inc. v. Skylink Technologies, Inc. [PDF].

Read the decision in HTML: Chamberlain Group, Inc. v. Skylink Technologies, Inc. [HTML].

Analysis soon...


Here is my rather lengthy look at the case...

...continue reading.

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August 30, 2004

Thierer Beats the Devil

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Posted by Ernest Miller

There is a new law, tech and policy blog in town with a distinctly libertarian pedigree, The Technology Liberation Front. Read their introduction (Welcome to the TLF !):

This is why this site is needed. We aim to report on, and hopefully help to reverse, this dangerous trend of over-regulation of the Internet, communications, media and high-technology in general. We will not hide our love of liberty on this site and we will take every opportunity to castigate those who call for expanding the reach of government into these fields.
They have twelve listed contributors (About Us). The more the merrier.

In any case, Adam Thierer asked a number of different people to comment on his recent post on the TLF concerning DRM (Is DRM the Devil? The Debate over Digital Rights Management, Trusted Computing and Fair Use in Copyright Law). It is a debate I've engaged in often, so read on for my response ...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

August 20, 2004

Apple vs. Real: The Debate Continues

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Posted by Ernest Miller

The repercussions of the Apple/Real conflict continue, and much can be learned from the various commentaries. Previous coverage here: What Real's Hacking of FairPlay Doesn't Do, Apple Gets Real Serious About Harmony and Will Real's DRM Strategy Succeed? Signs Point to "No".

Copyright shaman and law professor James Boyle has a commentary in the Financial Times attacking Apple's metaphor that Real "broke into" the iPod (The Apple of forbidden knowledge).

Derek Slater continues his excellent analysis of the issues (Real's Freedom of Choice Campaign and Price Cuts). He expresses as much surprise as I do that Public Knowledge is supporting Real's campaign for "freedom of music choice" (Public Knowledge Supports RealNetworks Campaign for Freedom of Choice). Slater points out that the real problem isn't that Apple won't license its DRM, but that the DMCA prevents Real from fully interoperating with the iPod without Apple's permission. Of course, you won't hear Real complaining about the DMCA.

I disagree with Slater that Real's pricing ($0.49/download) might be a turning point. I don't think there is a chance in hell that'll happen. The problem is that Real is losing money to the copyright holders with each sale at that price. Even if it attracts customers, I doubt they will be impressed when the price goes up later. The real question is what incentive this gives the copyright holders to reduce their licensing fees. The answer, I'm afraid, is none. The copyright holders will be happy with the additional increase in revenue, but they won't bat an eye when Real has to raise prices and lose customers. Real would have done better to spend the money on buying the contracts of some popular bands and giving the music away. This is simply a sign of desperation on Real's part.

Interestingly, Real's "Freedom of Music Choice" campaign links to EFF's complaints about Apple's FairPlay DRM (EFF: FairPlay: Another Anticompetitive Use of DRM) (FoMC: EFF on "FairPlay"). However, there is no link to EFF's take on Real's faux grassroots effort (Hypocrite, Thy Name Is Real). Maybe it is because of quotes like this:

If Real actually cared about "Freedom of Music Choice," it would be telling its customers to burn the downloaded music they purchase to CD, then rip to any DRM-free format they like (including MP3, WAV, or AAC, all of which play just fine on the iPod). That's a much better option than being dragged into a feud between Apple and Real.
Finally, a couple of other posts on the Apple/Real imbroglio that have been getting quite a bit of attention. Druken Blog's Convergence Kills, and Daring Fireball's 2004 Won't Be Like 1984. Both are lengthy, but well-worth the time if you are interested in the issues.

Comments (2) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

August 04, 2004

DMCA Executioner Strikes Again, Prepares for Next Victims

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Posted by Ernest Miller

WIRED reports that 321 Studios has closed it doors thanks to multiple DMCA lawsuits and injunctions against it (321 Studios Shuts Its Doors). From 321's website:

Thank you for visiting 321 Studios. 321 Studios regrets to inform you that it has ceased business operations including, but not limited to, the sale, support and promotion of our products. Despite 321 Studios’ best efforts to remain in business, injunctions entered against 321 Studios by three US Federal courts earlier this year has resulted in 321 Studios no longer being able to continue operating the business.
The company had been most famous for selling DVD backup software. [via We the Media]

C|Net News has an even more distressing report on the future of open source software (Linux, digital rights on collision course). Martin Fink is the Vice-President of Linux for Hewlett-Packard and responsible for the Linux and Open Source strategy across the entire company. From the article,

Right now there is a risk that DRM adoption will lock out Linux and open-source software, Fink said. "Unfortunately, DRM and open-source software are today largely incompatible because of an extension to copyright law called the Digital Millennium Copyright Act," Fink said.
Critics of the DMCA have been saying this ever since the seriously flawed bill was passed. Of course, I wonder how Fink feels about working for a company whose president declared fealty to DRM and the DMCA earlier this year (HP Goes Off the Rails).

Tim Wu continues his guest blogging on Lessig's blog with a post about the lack of controversy regarding adding the DMCA and copyright term extension to international treaties (The DMCA: Not controversial). The complaint is that the DMCA and term extension are not seen as controversial. Here are two of the reasons for this:

First, there is public choice theory. For example, the interests of the copyright cartels are concentrated and relatively easy to coordinate, while the opposition's interests are diffuse. Moreover, our politics are tilted to favor the business interests of the large media conglomerates. For too many reasons to go into here, fighting the copyright cartels is naturally going to be an uphill battle.

Second, those involved in these negotiations are well aware of the controversy, but they don't care. For example, the intellectual property negotiations for FTAs include representatives of the Copyright Office. The Copyright Office likes the DMCA. Heck, the Copyright Office supports the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) and even wants Congress to overturn the Sony decision (Copyright Office on INDUCE Act (IICA): It isn't Strong Enough). Despite calling to make the next generation of VCRs illegal, Mary Beth Peters, Register of Copyrights, still has her job.

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August 03, 2004

Department of Ooops: Apple FairPlay Edition

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Posted by Ernest Miller

According to a report from a German Macintosh news site ( via the Mac News Network, Apple's own iMovie software will strip FairPlay DRM from iTunes music (Report: iMovie strips FairPlay DRM from iTunes songs):

The site reports that Apple's own video tool can be used to create unprotected song files that be played on any computer without recompression, circumventing iTunes' DRM protection. iMovie users can use the "Share" feature of iMovie to export any imported (protected) song from the iTunes Music Store. The exported songs can either be stored in the un-protected AAC file format (used by Apple at the iTMS) or in the raw WAV file format; both of these formats are supported by iTunes.
If true, this would certainly be an embarrasment to Apple. I'm not sure what all the legal implications are. For example, would this be an excuse for Real to sue Apple for DMCA violations? What about the copyright holders, both those who encoded their music through iTunes (probably a contractual issue) and those who used Real's Helix DRM (why not the DMCA)? See, Can Real Sue Apple Under the DMCA?.

Comments (2) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

August 02, 2004

Will Real's DRM Strategy Succeed? Signs Point to "No"

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Posted by Ernest Miller

Cleaning up after last week's coverage of the extensive Apple/Real DRM debate (Apple Gets Real Serious About Harmony), a few more links for the reader's delectation.

The Your Tech Weblog has a report from the field that the conversion from Real's Helix DRM to Apple's FairPlay DRM either doesn't work or is already broken (Real, iPod: Hair-pulling time) [via engadget]

Derek Slater continues his excellent work on the Real/Apple imbroglio by analyzing what possible defenses Real has to charges of hypocrisy with regard to complaining about Apple's decision to investigate DMCA charges against Real (Real's Potential Legal Arguments and Principles).

Dana Blankenhorn says the real question, is "Does copyright mean interoperability is impossible without the prior written consent of the copyright holder, not to mention everyone else in their value chain?" (Apple vs. Real). There is also an interesting debate in the comments section of his blog.

Daring Fireball consults a true guru in order to get the down low on the controversy (Magic 8-Ball Answers Your Questions Regarding RealNetworks’ Harmony).

Paid Content sees Apple losing its sheen due to the controversy (The Real-Apple Spat--The PR Case Study). Nah. Those who don't care about DRM aren't going to really care. Those who don't like DRM don't like either Apple or Real.

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July 29, 2004

Apple Gets Real Serious About Harmony

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Posted by Ernest Miller

I've been writing a lot recently about the Real / Apple imbroglio (What Real's Hacking of FairPlay Doesn't Do, Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?, and Can Real Sue Apple Under the DMCA?). Short story, Real has developed a technology, Harmony, that will convert files encrypted with Real's Helix DRM into files that mimic Apple's FairPlay DRM, but not the reverse. Interesting legal questions are raised.

Today, Apple has issued a press release with a legal threat (Apple Statement):

We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real's Harmony technology will cease to work with current and future iPods.
As if being a hacker is a bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?

Derek Slater has a good selection of links and analysis (Apple Threatens Real). CNN has an article that quotes yours truly (Apple: RealNetworks hacked iPod). Slashdot comments (Apple Not Too Harmonious with Real).

Will Apple sue? I think they may, in order to set a precedent and warn Microsoft off. A lawsuit would also create further FUD about Real's ability to survive in this cutthroat market.

It isn't clear what issues will actually come to the legal forefront. If Real's software was a clear violation of the DMCA, Apple would have said so (and Real probably wouldn't have tried this). There are also various state law possibilities, such as unfair competition and whatnot. This will certainly be a case to watch.


Over on engadget, Siva Vaidhyanathan, copyfighter, has a guest editorial on DRM lock-in that starts with coffee machines and ends up with Apple/Real (The Trouble with Tethering). See also, Derek Slater (The Practical Impact of Lock-in). Concludes Vaidhyanathan,

If Apple is smart (as it occasionally is, but rarely in this domain) it will welcome Rhapsody users. Tethering may be the hot corporate move of the moment. It may be what all the consultants are pushing (corporate consultants are basically anti-competitive). But it’s ultimately bad business and - when backed up by law - bad public policy.

Real has also issued a countervailing press release:

RealNetworks Statement about Harmony Technology and Creating Consumer Choice

Real is delighted by initial consumer and music industry support for Harmony. Compatibility, choice and quality are critically important to consumers and Harmony provides all of these to users of the iPod and over 70 other music devices including those from Creative, Rio, iRiver, and others. RealPlayer Music Store provides the highest sound quality of any download music service. That's why so many consumers have welcomed news of Harmony. Consumers, and not Apple, should be the ones choosing what music goes on their iPod.

Harmony follows in a well established tradition of fully legal, independently developed paths to achieve compatibility. There is ample and clear precedent for this activity, for instance the first IBM compatible PCs from Compaq. Harmony creates a way to lock content from Real's music store in a way that is compatible with the iPod, Windows Media DRM devices, and Helix DRM devices. Harmony technology does not remove or disable any digital rights management system. Apple has suggested that new laws such as the DMCA are relevant to this dispute. In fact, the DMCA is not designed to prevent the creation of new methods of locking content and explicitly allows the creation of interoperable software.

We remain fully committed to Harmony and to giving millions of consumers who own portable music devices, including the Apple iPod, choice and compatibility.

UPDATE 2 1205 PT

Ed Felten weighs in (Apple Threatens Real) via Copyfight

Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.

I don't know about you, but I find this all very confusing. I guess I just don't have a head for business.

UPDATE 3 1225 PT
Derek Slater has even more (Real Responds; Pot Persists In Calling Kettle Black).

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Why Who Can Sue Under the DMCA is Important

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Posted by Ernest Miller

Seth Finkelstein responds to my post yesterday (Can Real Sue Apple Under the DMCA?) regarding who can sue under the DMCA by claiming it is a "convoluted version of an old 'argument' sometimes put forth that purported to show that the DeCSS case was invalid" (Apple FairPlay, DMCA, and circumvention arguments). He characterizes the argument thus:

"The DMCA talks about decoders. But it doesn't say anything about encoders. Suppose I take a DVD movie for which I am the author and which I own the copyright. I then encode my own DVD movie with the *CSS* algorithm (that is, I use only an *encoder*, not a *decoder*). I now have a CSS-protected DVD. Thus every DVD player counts as a circumvention device, because they can play my DVD without my authority as the copyright owner! *GOTCHA!*"
Well, one of the responses to that argument is that there is an implied license since those DVD players already exist. However, I do make the claim that we have a problem with the DMCA if the DVDCCA subsequently makes significant changes to the CSS requirements that harm the rogue unlicensed-use-of-DRM copyright holder. If someone can create a FairPlay-encoded file without a license from Apple then Apple may have a problem making changes to what restrictions FairPlay protects.

Finkelstein argues that courts won't accept this argument, that they will create a distinction that lets Apple do what it wants with FairPlay. I agree, and I hope so. From a policy point of view, the argument I make on behalf of Real suing Apple is absurd. However, the question is how the courts will make this distinction.

I argue that the proper way for the court to make this distinction is basically to hold the right to sue over DRM under the DMCA lies with the institution that controls the DRM. In the case of FairPlay, that would be Apple. In the case of CSS, that would be the DVDCCA. The copyright holders license DRM from DRM providers. From what I've seen, those licenses don't give any control over those DRM systems to the copyright holders and they're unlikely to because that would be foolish from the DRM provider's point of view.

Could the court create another pseudo-distinction ala Chamberlain v. Skylink (Judge Asserts Pseudo Distinction to Preserve DMCA)? Yes, and this is the argument that Finkelstein makes, that the courts will simply distinguish between "bad" actors and "good" actors. I would hope that is not how the court distinguishes the two cases and I think I could provide some good arguments as to why the distinction should focus on the rights of the DRM provider.

Why is this important? Technically it makes the DeCSS cases invalid, but that's not really the point because this distinction wouldn't have necessarily changed the outcome of those cases. Making the rightsholder under the DMCA the DRM provider is important for a couple of reasons. First, it changes DMCA fights from defendant v. sympathetic copyright holders to defendant v. technology provider. Piracy arguments will still be made, but they won't resonate as much. Second, and more importantly, it focuses attention on the paracopyright aspects of the DMCA. If the DMCA ends up ultimately being about the rights of the DRM holder, then it begins to look a lot more like a traditional type of intellectual property. In fact, it begins to look a lot like a patent. Of course, the DMCA lacks many of the constitutionally-required limitations of patent law, which is one of the arguments why the DMCA should be invalidated by the courts.

This is why I care about Who Can Sue Who Under the DMCA.

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July 28, 2004

Can Real Sue Apple Under the DMCA?

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Posted by Ernest Miller

Derek Slater has some further thoughts on Real's announcement that they will be able to convert their Helix DRM files into Apple's FairPlay DRM format, but not the other way around (Real's Harmony Hype).

Reading his article made me consider again the question, Who Can Sue Who Under the DMCA? In my first post on Real's announcement, I doubted that Apple could use the DMCA against Real (What Real's Hacking of FairPlay Doesn't Do). In my second post, I asked Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM? The answer was unclear. I would hope not, but there are reasonable arguments on the other side.

Having thought about the issue a bit more, I begin to wonder whether Real can sue Apple under the DMCA if Apple changes the restrictions on FairPlay (for example, permitting more CD burning or limited filesharing). As I've noted in my previous posts about who can sue under the DMCA, current case law doesn't restrict it solely to those who control the DRM system but to anyone who is harmed by circumvention of the DRM system. If Apple changes their FairPlay restrictions, might that not harm copyright holders who have encoded their works under FairPlay through Real?

The anti-circumvention provisions of the DMCA (17 USC 1201) state that "to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." [emphasis added]

If I sign a contract with Apple to encode my music with FairPlay, then, as a copyright holder, I've probably given my authority to Apple to change FairPlay on their initiative. However, if I use Real's Helix DRM to encode my music, then shift the DRM to FairPlay with Real's new software, I now have a FairPlay-encoded file without having signed a contract with Apple giving them authority to change FairPlay. If Apple now changes FairPlay restrictions, they would be doing so without the authority of the copyright holder, that is, me. So, I should, theoretically, be able to sue Apple for changing FairPlay restrictions under the DMCA.

Absurd? Yes, but that is what you get when you pass a crappy, poorly-drafted and complicated law. Perhaps, as I've argued, you can interpret the DMCA such that only the DRM holder gets to sue under it. However, that would mean that the movie studios never had the authority to sue over DeCSS in the MPAA DeCSS cases.

In related news, eMusic was also upset with Real's misleading claims (RealNetwork's "Harmony" Release Creates Discord and Misinformation). Indeed, even the New York Times was confused. However, I pointed out the error of their ways and they ran a correction today (Corrections):

An article in Business Day on Monday about plans by RealNetworks to give away software that will let people download songs from its online music store and play them on Apple's iPod referred imprecisely to other sources of songs for the player. While RealNetworks will be the first besides Apple to sell them in the protected iPod format, other companies sell them in the MP3 format, which the player can also use. (Go to Article)
Of course, this correction is also a bit misleading. Real is not selling FairPlay-encrypted songs, they are selling Helix-encrypted songs and then providing software to convert them into FairPlay-encrypted songs. Close enough for the New York Times I guess.

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July 27, 2004

Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?

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Posted by Ernest Miller

An interesting point was raised in the comments section of my posting on Real's software that converts music files with Real's Helix DRM to Apple's FairPlay DRM (What Real's Hacking of FairPlay Doesn't Do). Carl Witty and Derek Slater discuss the question of whether converting from Real's Helix DRM to Apple's FairPlay DRM might be construed as a violation of the anti-circumvention provisions of the DMCA (17 USC 1201). Derek claims that Real probably has the right to do such conversions under its licensing of Helix.

This is a question I've thought a lot about and the answer would have interesting repercussions (Who Can Sue Who Under the DMCA?). I agree with Slater. The licensing for Helix has to trump any claimed injury by copyright holders who use Helix DRM. Otherwise, the DRM is no longer controlled by Real, but by the copyright holders. Who would license DRM knowing that copyright holders would not be bound by the terms of the license?

However, Seth Finkelstein disagrees (and so does the Second Circuit). In the MPAA DeCSS cases, the movie studios were permitted to bring the action despite the fact that they had zero rights in CSS according to the licenses they signed with the DVDCCA, which manages the rights to CSS. The DMCA gives a very broad right to sue: "[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States court for such violation." If converting from Helix DRM to FairPlay DRM harms the copyright holder (because FairPlay has been cracked, for example), shouldn't they be able to sue Real under terms of the DMCA?

It's a question I would love to see the courts deal with.

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July 26, 2004

What Real's Hacking of FairPlay Doesn't Do

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Posted by Ernest Miller

The New York Times reports that Real has reverse-engineered Apple's proprietary FairPlay DRM so that music in Real's proprietary DRM format can be converted to FairPlay and played on the iPod (RealNetworks Plans to Sell Songs to Be Played on iPods). Strangely, there is no mention of Hymn (Hear Your Music aNywhere), which has also reverse-engineered FairPlay. I wonder if any Real engineers looked there for some hints (well, actually the whole thing), given that they wouldn't want to violate any of Apple's click-wrap contracts. Hmmmm. For more information, Frank Field has a good roundup of press coverage and the press release on Furdlog (Mousetrapped?).

Of course, the NY Times gets the reporting wrong. "This will be the first time any company other than Apple has sold songs for the iPod." Ummm, no. Any company that sells songs in the non-DRM'd encumbered MP3 format is selling songs for the iPod, given that the iPod supports MP3 playback. Check out Magnatune for example.

One question, of course, is whether Real's efforts here violate the DMCA, which prohibits the distribution of anti-circumvention devices. Such an analysis is very fact-dependent, and there isn't enough known about Real's program to say for sure, but I suspect that it doesn't. Real's software is apparently converting songs from one format into the FairPlay DRM'd format. This would not seem, without more information, to be an anti-circumvention function.

Note, however, what Real is not doing (and strangely, the news reports don't seem to mention either). You can convert Real files into FairPlay files, but you can't convert FairPlay files into Real files. Real is not allowing people to copy their iTunes into Real's DRM'd format. Why? Because it would likely be a clear violation of the DMCA. You may be able to play Real's DRM'd music on an iPod, but you still won't be able to play iTunes on a portable music player other than an iPod.

So, this isn't quite the breakthrough the analysts and whatnot seem to be claiming. If you buy anything from iTunes, you're still locked into Apple. If you buy an iPod, you can buy from Real's music store, but what real advantage does that provide? A DRM connoisseur might say that you will have the option of using other players in the future, but so what? Anyone who knows anything about DRM knows that you can't trust any of these competing formats. Perhaps in a few years one might want to buy another brand of portable music player, but what happens if Real's DRM fails in the marketplace and is squeezed out? What good did the flexibility do?

If people really care about DRM and its potential costs in the future, then they probably are avoiding DRM all together and sticking with non-DRM formats such as MP3 or Ogg Vorbis. Let me know when there is some important news here, such as Apple licensing FairPlay for use on other players.

Comments (12) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

July 14, 2004

Bill Gates: DVDs Soon to be Obsolete

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Posted by Ernest Miller

Tom's Hardware carries a report of an interview with Bill Gates in a German Newspaper in which Gates apparently said that DVDs would be obsolete in ten years (Bill Gates: DVD player dead within ten years):

Gates did not elaborate if the DVD-player will just die or if it will be replaced. In his view, it is "ridiculous" that today we have to carry around music and movies which are stored on "silver storage discs", since they easily could scratched or misplaced.
Well, gee, I guess I'll just have to buy all the movies I already bought all over again. Won't Hollywood be happy.

I'm a young guy. Some of the DVDs I own are already five years old. I expect that I should be able to watch those DVDs at least another fifty years from now. The only way that is truly feasible is if I'm permitted to rip the DVDs to another medium and put the DVDs into a nitrogen-filled storage container for preservation. So, don't tell me that making backups of DVDs isn't really necessary or not a permitted fair use, or simply not permitted under the DMCA.

See also, NY Times on DVD DRM.

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act

July 12, 2004

The INDUCE Act (IICA) and the Safe Harbor Provisions of the DMCA

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Posted by Ernest Miller

This may be the last post in my series exploring how the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) will interact with various elements of copyright law and related statutes. From now on I'll be concentrating on specific examples of how the INDUCE Act can be abused: Hatch's Hit List.

I've already discussed how the INDUCE Act will substantially broaden the materials that ISPs must take down in response to a request by copyright holders (The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA). Today, I'm going to look at the other half of those provisions and see whether or not ISPs will still be protected by the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | INDUCE Act

Who Can Sue Who Under the DMCA?

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Posted by Ernest Miller

James Grimmelmann has an interesting piece on LawMeme concerning a strange side issue involving unauthorized access to one party's copyrighted works through by a third party (From the Strange File: Hacking in Civil Lawsuit?). There are many issues involved in the case, so read the whole thing, but one issue stuck out for me:

HAS is raising a striking issue here: third party standing to sue over violation of various computer security statutes. Take for example the DMCA claim. It presumably runs something like this. Access to our copyrighted works (the web pages) is effectively controlled by the technological measures in place at You circumvented those measures. We were injured as a result (I can see copyright infringement, plus possibly some of the other claims from the underlying lawsuit). Therefore, under sections 1201(a) and 1203(a) of the DMCA, you're liable to us. Ka-pow. [links in original]
To my eyes, however, this is not a striking claim with regard to the DMCA because I see it as the basis for the most famous DMCA case of all, the MPAA anti-DeCSS cases: EFF Archives: MPAA DVD Cases.

One issue I always thought wasn't properly raised in the MPAA cases was who really had the right to bring the lawsuit. The movie studios brought the lawsuit because it was their copyrighted works that were being "protected" by CSS copy protection. However, the movie studios have no rights in the CSS system. It is fully controlled by the DVDCCA. Even if the movie studios changed their mind and thought it would be okay to distribute DeCSS, they had no authority to do so. Only the DVDCCA can determine what is authorized with regard to CSS.

The MPAA's argument (if they had been forced to make one) would have had to go something like this: access to the MPAA's copyrighted works (the movies) is effectively controlled by the technological measures owned and controlled by the DVDCCA. DeCSS circumvented those measures, but it is the MPAA that is injured as a result. Thus, the MPAA gets to sue.

I argued at the time that this was incorrect, that the DVDCCA should be the only plaintiff in the suit or, at a minimum, the DVDCCA was a necessary party. Obviously, my arguments never got anywhere.

This issue may seem new because all the other DMCA cases I am aware of have been brought by the companies that actually control the DRM technology used, such as Real v. Streambox, Chamberlain v. Skylink, and Lexmark, to name but a few.

I still think it is important point, however, and it will be interesting to see what a court makes of it. The consequences can be tremendous. As a DRM creator who licenses use of the DRM system, does the DMCA mean that you lose all control over what you permit with regard to your DRM system to those you've licensed it to?

Comments (6) + TrackBacks (0) | Category: Digital Millennium Copyright Act

Digital Millennium Competition Avoidance (DMCA)

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Posted by Ernest Miller

EFF attorney and Copyfighter Jason Schultz has been on a roll recently identifying cases in which the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201, have been used not to protect copyright but (as critics claimed they would) to stifle competition. The basic issue here is that companies can prevent competitors from interoperating with their devices by implementing simple DRM handshakes. The classic example so far is Lexmark's use of the DMCA to prevent rivals from selling replacement toner cartridges (Lexmark invokes DMCA in toner suit). For more examples, see EFF's Unintended Consequences: Five Years under the DMCA. In the last week Schultz has pointed out four similar cases. Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act

July 02, 2004

The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA

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Posted by Ernest Miller

Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), this post will address the "notice and takedown" provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Now the notice and takedown provisions of the DMCA have already had more than their fair share of controversy, including some rather clear cases of abuse. See, EFF's Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands and Chilling Effects's DMCA Safe Harbor Provisions. Guess what. If the INDUCE Act passes, things may get a whole lot worse. Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | INDUCE Act

June 30, 2004

The INDUCE Act (IICA) and the Anti-Circumvention Provisions of the DMCA

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Posted by Ernest Miller

Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), today let us discuss the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201. For those of you who have been travelling with the Mars Rover for the past few years, the relevant portions of the DMCA make it illegal to distribute devices that circumvent access controls and copy controls, basically, DRM cracks. The DMCA is a bad law, but I'm not going to go into details here.

Now the thing with many anti-circumvention devices is that they are "capable of substantial noninfringing uses" and thus avoid secondary copyright liability under the Sony (Betamax) doctrine. Backups, fair use, playback on alternative devices; all are common examples of noninfringing uses that circumvention devices enable. DMCA plaintiffs could fight this in court, but it would be tough and probably not worth it. So, while a company may get busted for violating § 1201, which is bad enough, they will generally have a pretty good defense against claims of secondary copyright liability.

But how hard would it be to prove secondary liability under the INDUCE Act? Once you've shown that a company has violated the DMCA, it isn't much farther to push a jury to find that they "induced" copyright infringement as well, thus bringing all the secondary liability down like a ton of bricks without all the hassle associated with proving contributory or vicarious liability. Indeed, merely advertising a circumvention device or providing instructions on how to use it will probably be enough to trigger inducement liability.

Now, think about how the DMCA has been abused to do things like control markets in ink cartridges. Now, imagine that plaintiffs get to slap a secondary copyright liability suit on top of that. Bonus!

The INDUCE Act will make the unbalanced anti-circumvention provisions of the DMCA even more unbalanced.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | INDUCE Act

June 23, 2004

Pro-DMCA Forces Strike Back

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Posted by Ernest Miller

Yesterday, I noted that a new consumer electronics coalition was launching, part of the good news regarding the anti-DMCA bill moving slowly through Congress (Anti-DMCA Personal Technology Freedom Coalition to Launch). Today, The Register publishes a story on two conspicuous absences from the nascent coalition, Microsoft and Apple (Microsoft, Apple snub consumer freedom coalition). Could it be that my analysis of why MSFT and Apple would support DRM and the DMCA is correct? Read and decide for yourself: Metaphors Gone Wild: On Pies, Ships, Regressive Taxes, DRM and Microsoft.

My post on the Personal Technology Freedom Coalition also pointed out that anti-DMCA Congressional leader Rick Boucher (D-VA) sounded pretty optimistic. Well, the leadership of the House Judiciary Committee has struck back (Judiciary Committee Leaders Issue Statement on H.R. 107, the Digital Media Consumers’ Rights Act):

WASHINGTON, D.C. - House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.), Ranking Member John Conyers, Jr. (D-Mich.), and Judiciary Courts, the Internet, and Intellectual Property Subcommittee Chairman Lamar S. Smith (R-Tex.) issued the following statement regarding H.R. 107, the Digital Media Consumers’ Rights Act.

“We strongly oppose the substance of H.R. 107. This legislation would eviscerate a key provision of the Digital Millenium Copyright Act (DMCA), which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before. In fact, a DVD player is now as common a household item as the VCR was 15 years ago precisely because of the DMCA. H.R. 107 would undo a law that is working and destroy the careful balance in copyright law between consumers’ rights and intellectual property rights.

“Furthermore, our strong objections to the substance of H.R. 107 are matched by our objections to what appears to be a bold jurisdictional power grab. The Judiciary Committee has - and has long had - exclusive jurisdiction over copyright law. Rest assured, we will wholeheartedly oppose this move in a bipartisan fashion, as we would expect Energy and Commerce Committee leaders to do if we attempted to write energy legislation.”

This will definitely be an uphill fight.

via Furdlog and beSpecific

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June 22, 2004

Potemkin Village - What Secrets DRM Encryption is Really Hiding

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Posted by Ernest Miller

Cory Doctorow is not the first person to say it, nor will he be the last, but he certainly said it well in his popular talk on DRM he gave at Microsoft (Microsoft Research DRM talk):

DRM systems are broken in minutes, sometimes days. Rarely, months. It's not because the people who think them up are stupid. It's not because the people who break them are smart. It's not because there's a flaw in the algorithms. At the end of the day, all DRM systems share a common vulnerability: they provide their attackers with ciphertext, the cipher and the key. At this point, the secret isn't a secret anymore.

However, DRM does hide (sort of) secrets, they just have nothing to do with the plaintext. Read on...

...continue reading.

Comments (7) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management

Anti-DMCA Personal Technology Freedom Coalition to Launch

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Posted by Ernest Miller

Last week, on Copyfight, I noted Some Good News - Support for Anti-DMCA Increasing. Now, C|Net News has a couple of articles expanding on the good news (Tech heavies support challenge to copyright law and The Hill's property rights showdow). The first article reports on a new coalition of PC OEMs, chip manufacturers, and consumer electronics manufacturers, who will coordinate lobbying efforts to rollback the DMCA's anti-circumvention provisions. The group will be known as the Personal Technology Freedom Coalition - a pretty good name, I think. The second article is an interview with an optimistic Rep. Rick Boucher (D-VA), sponsor of the anti-DMCA bill. See also, Slashdot (Boucher's Anti-DMCA Bill Gets High Profile Allies).

This won't be an easy win, but it is significant forward progress.

Freedom to Tinker: Tech Giants Support DMCA Reform

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May 17, 2004

Misleading DMCA Article

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Posted by Ernest Miller

James Nguyen, a partner at Foley & Lardner's Los Angeles office, has an article on the anti-circumvention provisions of the DMCA in this month's LA County Bar Assoc.'s Los Angeles Lawyer: Code Breaking. The article is a pretty good, if brief, summary of the anti-circumvention provisions of the law to this point. However, there is one paragraph that is fairly misleading in its description of sections 1201(a) (access controls) and 1201(b) (copy controls):

For example, in applying Section 1201 to circumstances involving a circumvention device that breaks DVD encryption codes and permits copying of DVDs, a company that manufactures and sells the device would violate the trafficking provisions of Section 1201(b) (and possibly also Section 1201(a)(2), depending on what the device does). However, if a consumer uses that device to copy a DVD, that conduct is lawful if: 1) the consumer lawfully gained access to the DVD (such as by purchasing it at a retail store), and 2) the consumer pleads and proves a traditional infringement defense (such as a defense of fair use based on making one copy for personal use).

This language is confusing. Yes, if a device is only a 1201(b) device, then actual circumvention (as opposed to distribution of the device) is legal, though one may still be guilty of copyright infringement. However, Reimerdes held that CSS, the encryption used by DVDs, was both a copy protection device (1201(b)) and access control device (1201(a)). Under Reimerdes, it is unclear how any device that circumvents CSS for purposes of 1201(b) does not also meet the requirements of 1201(a). Heck, it is unclear how a device that circumvents any commonly used encryption scheme is not both a 1201(a) and 1201(b) device. For all practical purposes, 1201(a) has swallowed 1201(b). If there is a case that has found a device that circumvents encryption to only violate 1201(b) and not also violate 1201(a), I am unaware of it.

This means that even if one has lawfully acquired a DVD, such as by purchase at your local Wal-Mart, circumventing CSS in order to view the DVD on an unauthorized player puts one in violation of 1201(a)(1). Unfortunately, there is no defense of fair use to 1201(a)(1). Although all you did was view your lawfully acquired DVD, you are still subject to civil liability.

Nguyen's description of how the anti-circumvention provisions of the DMCA operate with regard to DVDs sounds almost reasonable, but is misleading. Remember, playing a DVD on an unauthorized player is illegal. A point I wish had been made more forcefully at the DMCRA hearings.

via Bag and Baggage

Comments (4) + TrackBacks (0) | Category: Digital Millennium Copyright Act

April 07, 2004

The Broadcast Flag Treaty - Draft Available

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Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

March 22, 2004

Copyfight - The Remix

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Posted by Ernest Miller

Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I'll continue to post here, of course, especially my longer pieces.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark

March 10, 2004

APEX's New Networked DVD Player

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Posted by Ernest Miller

APEX Digital, makers of famously inexpensive DVD players, is launching its first networked DVD player (APEX AD-8000N Connected DVD Player). The new device will not only play DVDs, but will be able to play files stored on a local computer, such as those movies you downloaded (legitimately, of course). APEX devices have also been famously hackable (Apex/Hiteker DVD Hacking Pages). How hard will it be and how long will it take for hackers to figure out a way to backup your DVDs on computer through the new APEX AD-8000N?

via engadget

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Tools

March 08, 2004

Berkman Center Should Talk to Shorenstein Center About DMCA

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Posted by Ernest Miller

Filtering software bete noir and DMCA expert Seth Finkelstein has two good posts on his Infothought blog regarding the DMCA, PDFs and reports about blogging. In the first (Making Fair Use of the Report on "Big Media" Meets The "Bloggers"), Seth links to Dowbrigade News, which had noted the irony of a report about bloggers available on the internet not being easily copyable (The Devil Is in the Details):

It [the report] is available as a free download .pdf from the Shorenstein. The weird thing is the extent to which the authors have gone to make sure this milestone article in the academic history of the Blogosphere is unbloggable. Excerpts or selections of the text cannot be saved, or copied and pasted. The document cannot be converted to another format or saved as anything else. The words "Not to be Copied" in 92-point faded-shit brown watermark letters are splayed diagonally across each and every page.

Seth, being smart, knows how to decrypt the relatively trivial encryption scheme used for the PDF. Of course, he also realizes that doing so would definitely violate the DMCA. Seth, being clever, knows that there are often other ways around DRM and provides a couple of means of circumventing the copy protection that, arguably, won't get Seth into trouble for violating the DMCA.

In a follow-up post, he goes into a little more detail how the DMCA operates with regard to circumvention (PDF, DMCA, and "Do Not Remove This Tag Under Penalty Of Law"). Once you have printed an encrypted PDF document to a file, which the Shorenstein paper permitted, the only "protection" for the document is the following code:

% Removing the following eight lines is illegal, subject to the Digital Copyright Act of 1998. mark currentfile eexec 54dc5232e897cbaaa7584b7da7c23a6c59e7451851159cdbf40334cc2600 30036a856fabb196b3ddab71514d79106c969797b119ae4379c5ac9b7318 33471fc81a8e4b87bac59f7003cddaebea2a741c4e80818b4b136660994b 18a85d6b60e3c6b57cc0815fe834bc82704ac2caf0b6e228ce1b2218c8c7 67e87aef6db14cd38dda844c855b4e9c46d510cab8fdaa521d67cbb83ee1 af966cc79653b9aca2a5f91f908bbd3f06ecc0c940097ec77e210e6184dc 2f5777aacfc6907d43f1edb490a2a89c9af5b90ff126c0c3c5da9ae99f59 d47040be1c0336205bf3c6169b1b01cd78f922ec384cd0fcab955c0c20de 000000000000000000000000000000000000000000000000000000000000 cleartomark

As Seth notes, under the DMCA, it is plausible reading of the statutes that removing those lines from the code is a violation of federal law.

The report, which discusses the blogosphere's role in the Trent Lott affair is available here: "Big Media" Meets the "Bloggers" [Fair Use Inhibited PDF]. Perhaps someone from the Berkman Center should discuss some of the issues involved with using fair-use inhibited file formats with the Shorenstein Center.

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act

March 01, 2004

Confusing DMCA "Database" Decision Not About Databases

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Posted by Ernest Miller

Three days ago, I posted about a recent decision concerning databases and the DMCA (DMCA Decision on Databases). While others were claiming this as a victory against the abomination that is the DMCA, I remained uncertain, not yet having a chance to read the decision. Now, with many thanks to a reader, I have had a chance to read the decision: Inquiry Management Systems v. Berkshire Information Systems.

The case is about one information company (Berkshire) accessing and copying substantive amounts of a database of another information company (Inquiry Management Systems). The claims involved include the Computer Fraud and Abuse Act, copyright infringement, tortious interference and, my favorite, the DMCA. The decision is one of summary judgement, with the copyright and DMCA claims dropped from the case. This may seem like a DMCA victory, but I'm still not sure since the logic is a mess.


The Register has a piece on some other troublesome elements of the decision I didn't cover (Is password-lending a cybercrime?)

...continue reading.

Comments (2) + TrackBacks (0) | Category: Digital Millennium Copyright Act

February 27, 2004

DeCSS Injunction Lifted in Trade Secrets Case

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Posted by Ernest Miller

The DVD-CCA brought a trade secrets case against Andrew Bunner for publishing alleged trade secrets regarding DVD encryption, that is, the DVD decryption code known as DeCSS. The district court entered a preliminary injunction against Bunner posting the code on January 20, 2000 (Order Granting Prelim. Injunction for plaintiffs against defendants, in DVD CCA v. McLaughlin, Bunner et al.).

Bunner appealed, citing his free speech rights under the Constitution and California Constitution. He lost his constitutional challenge in the California Supreme Court, but the case was sent back to the California appeals court to determine whether the injunction had been properly issued under state trade secrets law. The appeals court has determined that the injunction was not properly issued.

Read the published (technical legal term meaning you can officially cite the case) decision: DVD-CCA v. Bunner [PDF]

This is a solid, black letter law decision. One highlight however:

One of the analytical difficulties with this case is that it does not fit neatly into classic business or commercial law concepts. The typical defendant in a trade secret case is a competitor who has misappropriated the plaintiff’s business secret for profit in a business venture. In that scenario, the defendant has as much interest as the plaintiff has in keeping the secret away from good faith competitors and out of the public domain. But here, according to DVD CCA it has no good faith competitors. And the alleged misappropriators not only wanted the information for themselves, they also wanted the whole world to have it.


Below, the conclusion:

We conclude that evidence in the limited record before us does not justify the issuance of an injunction under the UTSA. DVD CCA presented no evidence as to when Bunner first posted DeCSS and no evidence to support the inference that the CSS technology was still a secret when he did so. Further, there is a great deal of evidence to show that by the time DVD CCA sought the preliminary injunction prohibiting disclosure of the DeCSS program, DeCSS had been so widely distributed that the CSS technology may have lost its trade secret status. There is no evidence at all to the contrary. Thus, DVD CCA has not shown a likelihood of success on the merits; nor has it demonstrated that it would suffer further harm if the preliminary injunction did not issue. The preliminary injunction, therefore, burdens more speech than necessary to protect DVD CCA’s property interest and was an unlawful prior restraint upon Bunner’s right to free speech. It follows that issuance of the injunction was an abuse of the trial court’s discretion. [citations omitted]

Congratulations to Bunner and EFF!

Read the case archives: DVD-CCA v. Bunner and DVD-CCA v. Pavlovich

Jason Schultz pulls some more good quotes from the decision (EFF wins DVD-CCA v. Bunner Appeal).


The Intersection of Trade Secret and the DMCA

One very interesting aspect of the decision is that there is no mention of the DMCA and how it relates to the trade secrets law. One of the justifications for trade secret law is that there is no other law that will protect these valuable ideas, such as copyright or patent. After all, you can't have a trade secret and patent on the same concept. In return for making an idea public, you get a patent. If you keep the idea secret, you can keep it secret for as long as you want, but if it becomes public, you cannot protect the idea. Here is the key paragraph from the decision on this:

The [district] court determined that while the harm to defendants in being compelled to remove trade secret information from their Web sites was “truly minimal,” the current and prospective harm to DVD CCA was irreparable in that DVD CCA would lose the right to protect CSS as a trade secret and to control unauthorized copying of DVD content.

Well, no. Under Reimerdes, loss of trade secret status would have no bearing on the DVD CCA's ability to control unauthorized copying of DVD content. There would be no harm to loss of the trade secret. Thus, no need to invoke trade secret law.

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act

DMCA Decision on Databases

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Posted by Ernest Miller

Yesterday, C|Net News reported on a court ruling that apparently held the anti-circumvention provisions of the DMCA don't apply to databases (Court doesn't extend database protection). I would have written on this sooner, but I was hoping to find a copy of the decision and haven't come across one yet. The key 'graph from the article is:

Because Berkshire may have somehow obtained a legitimate password to the Web site, the judge said, IMS' argument that the bulk downloading "circumvented" a security system was a stretch. "Whatever the impropriety of defendant's conduct, the DMCA and the anti-circumvention provision at issue do not target this sort of activity," Buchwald wrote. Section 1201 of the DMCA says "no person shall circumvent a technological measure" that protects copyrighted material.

While this sounds good, I'm not so sure. There is not enough information to determine upon what basis the judge ruled. In particular, I would like to know how the judge distinguished or followed such decisions as Reimerdes, Elcomsoft, Chamberlain and Lexmark (no 321 because the decision was issued only days before, and 321 doesn't add anything new to the mix). For example, we could have a decision much like the one in Chamberlain, which created a pseudo-distinction because the judge didn't like the outcome logic would have dictated (Judge Asserts Pseudo Distinction to Preserve DMCA).

Comments (4) + TrackBacks (0) | Category: Digital Millennium Copyright Act

February 11, 2004

I Have No Rights And I Must Scream

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Posted by Ernest Miller

Derek Slater is on a roll when he points out a recent decision involving 17 USC 512 liability (part of the DMCA's ISP safe harbor provision) (Ellison Appeal and the 512 Standards). See also, Not Quite a Blog's post on this (Ellison v. AOL: Many organizations could be held contributorily liable).

This is an important decision in the developing law of ISP liability, which is growing more complex. The case involves bad boy science-fiction author Harlan Ellison suing AOL for the unauthorized posting of Ellison's work in newsgroups. The particular issue on point is whether or not AOL met the burdens required for eligibility for the safe harbor. The decision was that there is a question of fact as to whether AOL complied with the safe harbor provisions. AOL's main problem was that they changed their notification email address, did not notify the Copyright Office for months and did not forward emails to the old address. It is this cavalier attitude toward notification that also created a question of fact with regard to contributory infringement. This summary may sound fairly straightfoward, but the interweaving complexities of 17 USC 512 make it much more complex. Read the decision: Ellison v. Robertson [PDF].

Derek brings up an issue that the court did not directly address, what the definition of "repeat infringer" is. One interpretation would be that one is only a repeat infringer when a court has found copyright infringement twice. While that would be a plausible interpretation of the statute, it doesn't make much sense as a policy. With a strict definition of "repeat infringer," the law would require copyright holders to sue infringers in order to have any sway over their conduct. I'm not sure we really want a policy where suing is the only option.

However, if we don't have a strict definition of "repeat infringer," the DMCA as currently structured gives too much power to the copyright holders. For example, a notice-and-takedown letter might very well be sent against a legitimate work of fair use. The author of the fair use work might take down the work simply because they cannot afford to fight a court battle, not because the work was illegitimate. Without a strict definition of "repeat infringer", such an action would probably be considered infringement - leading to "repeat infringement" down the road.

Having a quick notice-and-takedown provision for copyright infringement makes a lot of sense - but only in cases of blatant infringement. Thus, I would allow the use of notice-and-takedown but with a reverse liability clause. Use of notice-and-takedown provisions that were ultimately found not to be infringement would create liability for the copyright holder making the claim. This would mean that blatant copyright infringements would be subject to notice-and-takedown claims, and rightfully so. On the other hand, copyright holders would be less likely to abuse such notices for fear of liability. If they still wanted to pursue copyright infringement arguments without liability, they still could using the traditional tools of a lawsuit and request for preliminary injunction.

I think this would have solved the whole Diebold mess, see Derek again (Arguments Heard in Diebold Case).

Comments (1) | Category: Digital Millennium Copyright Act

January 17, 2004

Pavolvich Free to Post DeCSS (Until Sued by MPAA, Anyway)

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Posted by Ernest Miller

Reuters has an important story in the DeCSS saga (Supreme Court Unscrambles DVD Decision). Apparently, two weeks ago the Supreme Court of the United States reversed an emergency stay on the Pavlovich DVD case. Pavlovich, a resident of Texas, had successfully contested jurisdiction (as determined by the California Supreme Court) in a trade secrets case brought in California. The DVDCCA had claimed posting DeCSS violated their trade secrets. According to Reuters, "In the latest ruling, U.S. Supreme Court Justice Sandra Day O'Connor lifted the injunction, saying there was no need to keep DeCSS a secret." This is a major blow to the trade secrets case, though not to the DMCA case (see, EFF's MPAA DVD Cases Archive).

I wonder though, if the emergency stay was lifted Jan. 3, why haven't I heard about it before?

Read about the history of the case on EFF: DVDCCA Case Archive: Pavlovich.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Freedom of Expression

January 13, 2004

Mod-Chipping Legal in Italy

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Posted by Ernest Miller

Thanks to Derek Slater for pointing out an incredible decision in the Italian courts (Mod-Chippers Win in Italian DMCA Case). I'm not terribly familiar with Italian law, so I have no idea how important this decision is, but it is wonderfully drafted, though lacking the copious footnotes of a US decision. The decision, which was first noted by IP Justice, essentially defends mod-chipping of consoles vs arguments based on the European version of the DMCA as well as on copyright grounds (Italian Court Rejects First EU Copyright Directive Seizure). Read the decision (English translation by Electronic Frontiers Italy) here: Tribunal of rehearing of Bolzano. The original Italian here: Tribunale di Bolzano.

The arguments are very straight forward, mostly hinging on the rights of the consumer to make whatever private uses of the device they want. Although it is acknowledged that mod chips can be used for playing infringing versions of games, that is dismissed out of hand in light of the numerous legitimate uses enabled, such as avoiding region coding, allowing third party game developers, making backup copies and using the PlayStation as a computer.

Indeed, the court seemed most enamored of the use of consoles as full-fleged computers. For example, there is this quote (something similar will eventually arise in US courts as well):

Ironically, [it is Sony who first] had supported strongly the thesis that a playstation is a true computer and not just a game console, when asked by the EU to pay for custom duties imposed over the consoles (while computers aren’t subjected to this tax).

Ooops. Avoid those taxes, create an opening for the argument that the PlayStation is a computer (the use of which should be unrestricted). Later, the decision notes that:

But if the device [Xbox], with a few hacks, may run Linux, why in the world shouldn’t a user be free of use it in all the ways he likes?

Good stuff. Unlikely to be persuasive to a US judge, but great news for the Europeans.

Comments (1) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Games

December 19, 2003

Verizon Wins Against DMCA Subpoenas

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Posted by Ernest Miller

As reported by Donna Wentworth on Copyfight, Verizon has emerged victorious in its effort to thwart the RIAA's subpoenas under the DMCA (Verizon Wins Victory for Privacy). The US Court of Appeals for the District of Columbia Circuit has reversed a lower court's ruling and held that the RIAA may not send subpoenas to ISPs for information on alleged infringers using P2P. Read the DC Circuit decision: RIAA v Verizon [PDF].

The decision is a victory for privacy, but not a victory for privacy as such.

The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. A DMCA notice-and-takedown letter can only be sent to the ISP if the ISP can remove access to the material (and not if the only way to remove access is to terminate a user's account). Thus, a copyright owner cannot send a DMCA notice-and-takedown to an ISP for what a user shares via P2P (the ISP can do nothing but terminate the user's account, which is not a remedy under a DMCA notice-and-takedown letter). Consequently, if no notice-and-takedown may be sent, no subpoena may be issued.

The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.

What does all this mean?

...continue reading.

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Privacy

November 20, 2003

Hollywood == Tobacco Industry?

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Posted by Ernest Miller

Susan Crawford offers an interesting take on her blog regarding the FCC's lack of authority to mandate the broadcast flag (New tack on the broadcast flag). Her take is certain to be popular in Hollywood as it analogizes the copyright industries to the tobacco industry:

[I]f FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices.

The case Crawford is referring to is FDA v. Brown & Williamson Tobacco Corp., in which the FDA claimed the ability to regulate cigarettes, but was shut down because, among other reasons, "It is highly unlikely that Congress would leave the determination as to whether the sale of tobacco products would be regulated, or even banned, to the FDA’s discretion in so cryptic a fashion." Similarly, it seems rather odd that Congress intended the FCC to regulate the consumer electronic and computer industries without a clear mandate.

Indeed, for the first time, I must praise the anti-circumvention aspects of the DMCA. Section 1201(c)(3) of the DMCA states that:

[n]othing in this section shall require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part of component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

This is the anti-mandate provision of the DMCA, which was part of the compromise that resulted in the passage of the bill. How odd that the consumer electronics industries would have signed on to this compromise if what it really meant was that the FCC could mandate anyway. In addition, section 1201(k) explicitly regulates certain copy protection measures for analog broadcasts. Had Congress intended for the FCC to mandate digital copy protection for broadcast, you think the DMCA might have mentioned it.

This is just a brief analysis. Hopefully, the consumer electronics and computer industry lawyers are putting together something much more devastating to the FCC's case.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Digital Millennium Copyright Act

Slater Wins One @ Harvard

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Posted by Ernest Miller

Derek Slater fights the good fight and wins a round (Update: Diebold, Harvard, and Me). Slater was one of the citizens engaged in e-civil disobedience against e-voting machine manufacturer Diebold's mendacity. He posted a mirror of the infamous Diebold memos, excerpts of which can be found on Rep. Kucinich's website here: Voting Rights. For his trouble, Slater received a notice-and-takedown letter from Diebold, via Harvard. Consequently, Harvard (following their own policy) entered a black mark in Slater's record for being a copyright infringer. One more notice-and-takedown letter addressed to him and Slater would lose access to Harvard's network for a year. Slater protested this policy, arguing that he shouldn't get a black mark due to civil disobedience (and the fact that his posting of the memos had a strong, although not invulnerable, fair use defense). Harvard has, in Slater's case, agreed. However, this was an ad hoc decision. Now, Harvard should revise its policy so that there is a procedure for challenging the black mark, in addition to the statutory procedure for challenging the notice-and-takedown letters themselves.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 19, 2003

Kucinich Posts Diebold's E-Voting Memos

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Posted by Ernest Miller

Donna Wentworth points out (Kucinich Posts Excerpts from Diebold Memos) that Representative (and Presidential Candidate) Dennis Kucinich (D-OH) has now posted excerpts of the infamous Diebold memos on his website on a page devoted to voting rights (Voting Rights). It should be noted that Diebold is now claiming that the juiciest excerpts from the leaked memos are copyright violations as well (Letter from Cindy Cohn to Judge Fogel [PDF]). While Diebold might have a colorable claim that posting all the memos is a copyright violation, there is no reasonable claim that publishing the excerpts is not fair use. It will be interesting to see how Diebold responds to Kucinich's postings.

Kucinich also condemns Diebold's use of the DMCA to silence those who have posted these memos:

Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public’s information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.

Right on, Kucinich! Will any other presidential candidates or representatives join the campaign against Diebold? Let's hope so!


Doug Simpson brings up some good points on his Unintended Consequences blog (Congressman Posts Diebold Document Excerpts). He discusses the "Speech and Debate" clause of the US Constitution (U.S. Const. art. I, § 6, cl. 1):

The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, beprivileged from Arrest ... and for any Speech or Debate in either House, they shall not be questioned in any other Place.

And notes the analogies of the present case with Brown & Williamson Tobacco Company v. Williams 62 F.3d 408 (D.C. Cir 1995), a case involving tobacco industry documents leaked to Congress. The case is a very good introduction to the issues involved in the "Speech and Debate" clause. I second Doug's comment that, "I'd like to be a fly on the wall when those [a notice-and-takedown letter] arrive[s at's ISP]."

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 12, 2003

Wash Post Confused by DMCA

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Posted by Ernest Miller

The Washington Post has published a lengthy article about some of the problems the DMCA is causing (Caught by the Act). Any sympathetic press coverage of these issues is welcome. However, this article is as confusing as it is informative. The main problem is that the article conflates three separate elements of the DMCA into, seemingly, one confusing mess: the notice-and-takedown provisions, the anti-circumvention provisions and the super-subpoena power. At one point there is a paragraph on the Diebold case (which deals with the notice-and-takedown provisions) bookended by paragraphs dealing with alleged section 1201 violations. Even those elements that the article distinguishes are often confused. For example:

The music industry uses the DMCA to sue Internet song-swappers it maintains are violating copyright law.

Actually, no the industry isn't. The industry is using section 512(h) of the DMCA to subpoena information about alleged infringers. Whether the RIAA subsequently sues or not is mostly irrelevant. Indeed, many of the targets of 512(h) requests are now settling prior to the launch of a lawsuit.

However, there is one especially nice quote in the article:

"I won't predict the date," [Rep. Rick] Boucher [(D-Va.)] said, "but eventually, we will change the DMCA."

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act

November 10, 2003

Slater's Civil Disobedience in the Harvard Crimson

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Posted by Ernest Miller

The Harvard Crimson does a pretty good write up on Derek Slater's recent notice-and-takedown message from Diebold for posting the e-voting memos (Student Accused of Violating Copyrights). Here's hoping that Harvard removes the accusation from Derek's permanent record. Seriously, Harvard needs to revisit its DMCA policy. Two strikes and you lose access to the network for a year might be reasonable for flagrant infringers, but in disputed cases, especially those involving political speech (such as Derek's), the policy is clearly draconian.

via A Copyfighter's Musings

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 04, 2003

Harvard's Unjust Application of the DMCA

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Posted by Ernest Miller

Derek Slater hosted one of the mirrors of the Diebold memos on a Harvard server (Diebold, Harvard, and Me). Soon thereafter, Harvard received a notice-and-takedown from Diebold targeting Slater's mirror. Derek has taken the mirror down, and will not be contesting Diebold's actions (he is busy with other projects). However, Harvard has a policy of terminating network access for a year for people who have have received two notice-and-takedown letters (Even Harvard's Dean Misreads the DMCA Safe Harbor). The letter from Diebold would count as Derek's first strike. This two-strikes (without further investigation) and you're cut-off policy is bad in and of itself. However, as applied to Derek it is certainly unjust. Harvard should revise its "repeat offender" DMCA policy and not count Derek's actions as those of a repeat offender.

Good luck, Derek!


Derek writes to inform that he has not actually taken the materials down and has not yet decided on a plan of action.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

EFF, Stanford Support Diebold Countersuit

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Posted by Ernest Miller

Copyfight had the first news and a collection of interesting links for EFF's and Stanford's Cyberlaw Clinic's support for a lawsuit against Diebold (EFF, CIS Seek Court Order Against Diebold). The documents filed in the case can be found here (EFF Archive: Online Policy Group v. Diebold, Inc.).

While I applaud the efforts to shut down Diebold's attempt to silence the publicizing of evidence justifying the complaints of Diebold's critics, I'm not sure how viable some of the legal arguments being made are. Some are certainly stronger than others, but it will not be an easy case to win. For example, while I certainly think that publishing the memos is fair use, I don't think the case for fair use is so clear that Diebold "knew" that the copyright claims were false. On the other hand, Diebold certainly should have known that linking to documents hosted on another site is not covered by the DMCA notice-and-takedown claims. The misuse of copyright argument is clever, and I hope it succeeds, but it will be tough going as the doctrine isn't quite clear and most cases deal with issues relating to anti-trust, not political expression.

At the very least, however, the lawsuit should force Diebold to actually litigate the issues rather than merely rely on the notice-and-takedown provisions. Moreover, the arguments in the case will certainly be precedent-setting and very interesting.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 29, 2003

Civil Disobedience to Diebold Moves onto P2P Networks

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Posted by Ernest Miller

bIPlog which had a great set of links on the Diebold/Swarthmore scandal yesterday (Cease and Desist Me, Babe) and was Slashdotted this morning (Diebold Chases Links To Leaked Memos), points to an interesting /. comment (/. Comments):

Yea, that's right, go on kazaa and type in Diebold and you'll find the mail....on over a hundred different hosts with quick speedy downloads to par!

Same's true for all the p2p apps, even the waste network I'm on! Sorry Diebold, I'm not gonna stop hosting your memo's until your entire goddamn corperation is taken down and the lie is revealed.

When will companies learn that often times the best way to solve a problem is to ignore it? Diebold's heavy-handed efforts to stamp out the distribution of the memos is only increasing their distribution and public awareness.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | File Sharing | Freedom of Expression

DMCA Exemption Rulemaking to be Challenged

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act

Would We Still Have Libraries?

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Posted by Ernest Miller

Jenny Levine, aka The Shifted Librarian, has a great line in her short post on this blog and the DMCA exemptions (Chipping Away at Fair Use). If I had a "quote of the week", this would definitely be it:

If public libraries didn't already exist, would we be able to start them in this day and age? My guess is no.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Digital Millennium Copyright Act

Diebold Protest Growing

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Posted by Ernest Miller

WIRED is continuing coverage of the Swarthmore/Diebold scandal and gets some quotes from Swarthmore's Dean Gross (E-Vote Protest Gains Momentum). However, the issue of taking down links to sites that link to the memos is not directly addressed:

However, Gross said that the cease-and-desist letter specified taking down links to the memos, and school lawyers felt they had to comply.

But the issue isn't direct links to the memos (though the EFF is challenging that), but links to sites that have direct links to the memos.

In another update, the Why War? website now shows nineteen active mirrors for the memos and three mirrors shutdown due notice-and-takedown letters from Diebold (Targeting Diebold with Electronic Civil Disobedience). Students from a total of twenty schools are participating.

bIPlog has a good round up of stories and cheekily requests a cease-and-desist letter (Cease and Desist Me, Babe).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 28, 2003

Diebold Countering Civil Disobedience with More Notice-and-Takedown Letters

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Posted by Ernest Miller

Why War? reports that two of the universities (Amherst and MIT) which have students engaging in electronic civil disobedience by hosting the infamous Diebold memos have received notice-and-takedown letters from Diebold. On the other hand, students at three more universities have joined the protest (Targeting Diebold with Electronic Civil Disobedience). The student at MIT who was the indirect target of the letter has his homepage here (C. Scott Ananian).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore's Professor Burke on the Diebold/Swarthmore Scandal

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Posted by Ernest Miller

Prof. Timothy Burke of Swarthmore's History Department has a thoughtful post on the Swarthmore/Diebold scandal (Caveat Emptor). While appalled by Diebold's actions and proud of the students who have revealed the mendacity of Diebold, he finds fault with some of the students' tactics and defends Swarthmore's response. Much of his argument is well-taken and provides good guidance for civil protests on college campuses (such as, don't ask /. readers to email the Dean en masse).

However, I do take exception to the claim that I and others "[repeat] what they’re finding at the Why War? website as if it’s the absolute gospel truth, and [exhibit] zero curiosity about the totality of the story." I do not believe that accurately characterizes my following of the story. For example, in this post (Swarthmore Crackdown on Protesting Students Reaches New Low), I am clearly skeptical of the claims of the Why War? website:

Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website .... If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. [emphasis added]

In accordance with my skepticism, I actually tracked down, telephoned, and spoke with two principles of the story, a student whose website was shut down and a member of Swarthmore's IT department. I hardly think making phone calls to confirm the posting is "exhibiting zero curiosity."

I'll also note that as a followup, I spoke with a member of Swarthmore's IT department again yesterday. The linking policy is, as of last night and according to this individual, unchanged. Students may have a text-based link to the Why War? site, but not an active HTML link to the site.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Ancillary Works on DVD DMCA Exemption Denied

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Posted by Ernest Miller

I wrote and testified on behalf of an exemption for "ancillary audiovisual works distributed on DVDs encrypted by CSS." Today, that exemption was denied, see

I will be writing an indepth analysis of the denial in the near future. However, I just wanted to note on this blog the following sentence from the recommendations that best summarizes the decision:

Encouraging circumvention of CSS even for laudable goals threatens to undermine [the] confidence [that CSS will protect DVDs against massive infringement].

For more coverage, see:

Seth Finkelstein
(DMCA censorware exemption win!) [CONGRATS SETH!]

Freedom to Tinker
(DMCA Exemptions Granted, Problems Remain)

A Copyfighter's Musings
(Copyright Office Grants Narrow Exemptions)

(Copyright Office Releases DMCA Exemption Hearing Ruling)

(DMCA Exemptions on Anti-Circumvention)

(Librarian of Congress Fails Public Interest in Copyright Regulation)

IP Justice
(US Copyright Office DMCA Ruling Issued: Consumers Still Unable to Make Lawful Use of Digital Media)


The Censorware Project
(Censorware Exemption to DMCA Anti-circumvention Provisions In Effect For Another Three Years)


C|Net News
(Feds grant DMCA exceptions)

(Librarian of Congress Posts DMCA Exemptions)

UPDATE 0250 PT 29 OCT 2003

(New Ways to Skirt DMCA … Legally!)

Comments (1) + TrackBacks (0) | Category: Digital Millennium Copyright Act

This is not the Link You're Looking For

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Posted by Ernest Miller

There is a nice little satire of the Swarthmore/Diebold link scandal being hosted on a Georgetown server (The Diebold Memos are NOT here).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression | Oddities

October 27, 2003

Diebold Filing False Notice-and-Takedown Claims?

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Posted by Ernest Miller is running an AP wirestory on the Swarthmore/Diebold scandal (Diebold threatens publishers of leaked electronic-voting documents). Perhaps this story is finally going to break in the mainstream press and get the attention it deserves.

Of particular interest in this story are the following paragraphs:

Company spokesman Mike Jacobsen said the fact that the company sent the cease-and-desist letters does not mean the documents are authentic -- or give credence to advocates who claim lax Diebold security could allow hackers to rig machines.

"We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic," Jacobsen said.

Hmmmm ... Well, according to the DMCA, a proper notice-and-takedown letter must include (among other things) the following:

  • Sufficient information to identify the copyrighted works [17 USC 512(c)(3)(A)(iv)]
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [17 USC 512(c)(3)(A)(v)]

If the documents aren't authentic, then how can Diebold meet these burdens?

Unfortunately, this isn't as clear cut an issue as it should be, since one doesn't have to be too specific about which documents need to be taken down. Diebold can essentially claim that most of the documents (the non-incriminating ones) are copyrighted and that they don't have to show which specific documents need to be taken down, particularly if the archive file contains many documents. However, if various individuals post only a handful of the most incriminating documents ... then Diebold would be forced to claim that the documents were authentic, if they want those specific documents removed.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

The Chronicle on the Swarthmore Controversy

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Posted by Ernest Miller

The Chronicle of Higher Education has an article on the electronic civil disobedience ongoing at Swarthmore and (now) eleven other colleges. Unfortunately, I can't link to the article on the Chronicle's site because a subscription is required. Fortunately, you can read the whole thing on Why War?'s site (Swarthmore Shuts Down Web Sites of Students Publicizing Company's Voting-Machine Memos).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore Civil Disobedience Campaign Growing

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Posted by Ernest Miller

Why War? reports that three more schools have joined the electronic civil disobedience campaign, bringing the current total to eleven schools (Targeting Diebold with Electronic Civil Disobedience).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 25, 2003

Electronic Civil Disobedience Spreads - Students from 8 Universities Participate

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Finkelstein to Swarthmore - Don't Give in to Chilling Effects

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Posted by Ernest Miller

Seth Finkelstein has published an email he has sent to Swarthmore's Dean Gross, asking him to resist the fear of liability and take a stronger stand in defense of freedom of expression (My letter to Swarthmore supporting fight against Diebold):

Yet I would say that Swarthmore, as an educational institution, is in fact extremely well-positioned to fight against Diebold. Though I'm not a lawyer, I'd claim that courts are generally extremely well-disposed to colleges in a situation such as this. The public interest and educational purpose aspect weigh very heavily, formally in a fair use copyright defense, and also informally in terms of making for a sympathetic presentation.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 24, 2003

Reimerdes and Linking Re: Swarthmore

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Posted by Ernest Miller

Seth Finkelstein pulls out the quotes on the legality of linking from the Universal v. Reimerdes (DeCSS) case in light of the recent decision by Swarthmore to stop all student webpage links to Why War? (Diebold memos and linking prohibitions at Swarthmore). This points out once again the large amount of foolishness in the Reimerdes decision. Nevertheless, Reimerdes was concerned with whether or not linking to a page that links to an anti-access control circumvention device was trafficking or not, and did not squarely address the issue of whether linking to a page that links to infringing content was actionable.

It would be quite a stretch to hold that linking to a page that links to infringing content is actionable, especially in case such as Diebold's memos where there are strong fair use and public policy arguments defending the posting of the allegedly infringing content itself. In any case, there is no justification whatsoever for Swarthmore to take down student websites that link to Why War? If courts could find ISPs liable for hosting third-party websites that link to a page that links to infringing content, what ISP wouldn't be liable? Swarthmore has gone far beyond simply being risk adverse.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 23, 2003

Swarthmore Crackdown on Protesting Students Reaches New Low

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Posted by Ernest Miller

According to the Why War? website, Swarthmore's crackdown on students engaging in Electronic Civil Disobedience has reached a new low (Targeting Diebold with Electronic Civil Disobedience). Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website, which links to sites hosting the Diebold internal company memos. They are not only terminating the accounts of students who host the files, or the accounts of students who link to the files, but terminating the accounts of students who link to a political protest site that links to the files.

If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. Swarthmore should be deeply, deeply ashamed.

Previous stories:

Swarthmore Actively Opposes E-Civil Disobedience Campaign
(Electronic) Civil Disobedience at Swarthmore


EFF responds to one of Diebold's notice-and-takedown letters (Re: Diebold’s Copyright Infringement Claim). via Copyfight

UPDATE 2 1840 PT

It Gets Weirder

I have spoken with the student whose website was shutdown. According to the student, his website was redirecting to the Why War? website before it was taken offline. After it was taken offline, he was informed by a member of the Swarthmore IT department that it was the new policy of Swarthmore that students were no longer permitted to link to the Why War? website using HTML anchor tags. However, they could point to the Why War? with plain text, as so:

See the current page of the student here.

UPDATE 3 1900 PT

I have spoken with a member of Swartmore's IT department and can confirm that two student pages have been shutdown for linking to a page on Why War?'s website that linked to the Diebold files. Swarthmore is currently re-evaluating its linking policy, but until they are satisfied that they cannot be held liable, students are asked to only post plain text that points to the Why War? website.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore Actively Opposes E-Civil Disobedience Campaign

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Posted by Ernest Miller

As noted yesterday ((Electronic) Civil Disobedience at Swarthmore), students at Swarthmore have begun an electronic civil disobedience action to keep on hosting internal memos about the security failings and knowledge of same from the electronic voting machine manufacturerer Diebold. Diebold has been waging a DMCA-based notice-and-takedown campaign to keep those damning memos off the internet. Students at Swarthmore have attempted to defeat this campaign by playing an organized game of whack-a-mole, as volunteers take over hosting once a current host receives a notice-and-takedown letter.

Yesterday afternoon, the students met with Swarthmore's Dean. Rather than provide support for, or at least take no action against, the students, Swarthmore has decided to cooperate with Diebold. According to the (Campaign Update: Day Two), it seems that Swarthmore is pre-emptively disabling the network accounts of any student hosting the files. Although the post is somewhat unclear it seems that Swarthmore intends to shut down all network access for a student hosting the files, even if that particular student has not yet been challenged by Diebold. This seems to be a very risk adverse position for the university to take and counter to its academic mission. Certainly, the university is under no obligation to shut down all network access to the protesters, but merely remove the offending files. Multiple violations by the same individual could be a different concern, but this is not what is being alleged. Furthermore, it is not clear to me that Swarthmore has a legal obligation to actively take down websites prior to notification by the alleged copyright holder. I can't say for sure without some more review, but I believe the DMCA safe harbor provisions would provide plenty of protection if the university merely waited for the inevitable notice-and-takedown letters to arrive before taking action.

In any case, in response, the two student groups behind the protest, Why War? and Swarthmore Coalition for the Digital Commons (which no longer appears to be functioning), have decided to take two different paths. Why War? will continue hosting the files, while the SCDC has taken down the files but will face Diebold in court.

This looks to be a very interesting action on both sides.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting

October 22, 2003

(Electronic) Civil Disobedience at Swarthmore

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Posted by Ernest Miller

WIRED reports on the clever and brave Swarthmore Students who have vowed to keep electronic voting machine maker Diebold's internal memos concerning security flaws in their systems online despite a rash of cease and desist orders (Students Fight E-Vote Firm). The memos, which detail some shady goings on at Diebold concerning their selling of insecure systems to various states, were leaked (or illicitly taken from a Diebold server by a hacker) and provided to e-voting activists and journalists. Subsequently, Diebold has been prolifically sending out notice-and-takedown letters under the DMCA claiming copyright violation in publishing the memos.

Most respondents, unable to contest a copyright suit, have taken down the memos, although one ISP has refused to comply with a notice-and-takedown letter regarding a page that didn't host, but linked to the memos (ISP Rejects Diebold Copyright Claims Against News Website). Now, however, students from Why War?, a nonprofit student organization at Swarthmore, and the Swarthmore Coalition for the Digital Commons (which is modeled on and inspired by the EFF), have developed and are implementing a clever (if not entirely legal) way to get around the DMCA's notice-and-takedown provisions, which they call an "electronic civil disobedience campaign".

Essentially, the students are playing an organized game of whack-a-mole. Each time one of the students receives a notice-and-takedown letter, they move the memos to another student's machine. The memos can always be found through links on the Why War? and SCDS websites.

The only real way for Diebold to stop this is to start suing students. Though Diebold might be successful in a lawsuit (though that isn't guaranteed, there are some decent fair use defenses here), they would certainly lose in the court of public opinion.

Slashdot readers comment on the Swarthmore students' press release (Swarthmore Students Keep Diebold Memos Online).

The students will apparently be meeting with Dean Robert Gross this afternoon, according to this comment on how to help the students (How to Help Us - 3 Steps).

Go Swarthmore Students!

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting

October 21, 2003

First Drugs, Now Textbooks - Parallel Import Trade Taking Off

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Posted by Ernest Miller

The New York Times (reg. req.) has an interesting article on the growing "gray market" in college textbooks (Students Find $100 Textbooks Cost $50, Purchased Overseas). Apparently the exact same textbooks used by colleges in the United States are being offered for sale overseas at substantial discounts, often around 50%. Consequently, arbitrage booksellers are taking advantage of the price discrepancy, such as (motto: "Brand New Textbooks, Used Prices"). The legality of this was affirmed by the Supreme Court in 1998 in Quality King Distributors, Inc. v. L'Anza Research Int'l, Inc.. The arbitrage is quite substantial:

At one prestigious university, a sophomore imported 30 biology books from England this fall and sold them outside his classroom for less than the campus-bookstore price, netting a $1,200 profit. Next semester, if all goes well, he plans to expand the operation.

We've already seen a great deal of this sort of arbitrage in the drug market, where US residents are buying drugs from Canada, for example, at prices much lower than are available in the United States. The drug importation arbitrage is based on patent law instead of copyright, but the principle is the same.

The policy arguments on behalf of the drug companies and textbooks publishers are similar, except, at least in the case of drugs, there is a quasi-plausible argument that Canadian drugs aren't quite as safe. What can you say about reimported textbooks? Essentially, the argument is that intellectual property goods cost a great deal to produce and price discrimination is necessary in order to allow the holder of the intellectual property rights to gain sufficient return.

This argument carries some weight, but what are we to do about it? Why should struggling US college students (or drug-requiring patients) be the ones to subsidize the production of such goods for students (or patients) in other countries?

Interestingly, it has been the entertainment industry that has been the most successful at foiling the gray market, through "region control" systems that are protected by the DMCA.

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Patent

October 20, 2003

Geist on Copyright Law Through Treaty

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Posted by Ernest Miller

Uber-Cyberprof Michael Geist of the University of Ottawa and author of the most excellent BNA Internet Law News (its free to subscribe, so do it), has written a great commentary for the Toronto Star on the increasing use of free trade agreements to ratchet up the protections of intellectual property law (Why we must stand on guard over copyright). In a serendipitous coincidence, just today IP Justice issued a report detailing such practices in the proposed FTAA (IP Justice on IP in the Free Trade Area of the Americas Treaty). Prof. Geist's article is a succinct overview of the issues and the IP Justice white paper points out the unfortunate particulars of an egegious case.

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IP Justice on IP in the Free Trade Area of the Americas Treaty

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Posted by Ernest Miller

IP Justice has published a white paper on the intellectual property aspects of the Free Trade Area of the Americas (FTAA) process, which is an attempt to create a single free trade agreement for the Western Hemisphere. Read the press release (FTAA Treaty Chapter on IP 'Threatens Freedom and Free Trade'). Read the white paper (IP Justice White Paper).

The proposed language of the agreement has a number of serious flaws, including (but certainly not limited to) enhanced criminal penalties, a super-DMCA provision, reduced scope for fair use, and database protection elements.

The proposed treaty is supposed to be complete by January 2005 and go into effect December 2005. Now is not too early to let your representatives and others know what a bad idea the intellectual property elements of the treaty are.

Comments (1) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act

October 15, 2003

TechTV to Violate DMCA?

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Posted by Ernest Miller

This coming Saturday (10/18 at 10 pm ET) the TechTV show Unscrewed will feature Screen Savers resident hacker/associate producer Kevin Rose demonstrating how to mod an Xbox (Mod Your Xbox, Interview With the Vampire, Search Sperts). You can read more about the Xbox segment here (Mod Your Xbox). The mod being shown on the show is a chip mod, which means that you have to physically modify your Xbox with a microchip (there are alternative ways to modify certain Xboxes through the use of software only). Of course, trafficking in such chips or using them is likely to be a violation of the DMCA and possibly copyright infringement as well. In any case, it certainly voids the warranty.

via Boing Boing

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