Case: DMCA on Port 80: Shoreline: copyright issues

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that ... is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.

This broad definition outlaws not just software that allows digital piracy, but any software providing access to a copyrighted work in a manner not intended by the copyright holder.

In a recent case, a Norwegian teenager posted code to make DVDs work on the Linux operating system. He wasn't stealing anything, just making legally purchased DVD's work on something other than Windows. The Motion Picture Assn of America sued and the U.S. gov't got the Norwegian gov't to arrest the kid.

More to the point, the MPAA also sued Web sites and individuals to get links to the Norwegian kid's info taken down. A New York City judge ruled in favor of the MPAA, saying that even linking to a site carrying the kid's program is illegal according to the DMCA.

The key word in the statute is control. The MPAA wasn't saying the kid stole anything, just that he made something they didn't want him to make. I can sort of go that far with them. But when they sue to get links to it taken down, I think they go too far.

The DMCA is being used to silence researchers, computer scientists and critics. Corporations are using it against the public. People are in Jail. A Princeton Professor was threatened.

If code that can be directly compiled and executed may be suppressed under the DMCA, as Judge Kaplan asserts in his preliminary ruling, but a textual description of the same algorithm may not be suppressed, then where exactly should the line be drawn? This web site was created to explore this issue, and point out the absurdity of Judge Kaplan's position that source code can be legally differentiated from other forms of written expression.

Dave Touretzky might seem like an unlikely champion of free expression.

The 41-year-old researcher at Carnegie Mellon University's School of Computer Science in Pittsburgh spends his evenings investigating how the brains of rats record and process location information.

"The MPAA folks have stumbled into this problem," Touretzky said. "In order to accomplish what they want to accomplish, they're going to have to restrict people's speech. ... The movie industry is happy to destroy important parts of our technology to protect their interests."

The Mess That Is the DMCA
by Tom Perrotta
Internet World email newsletter, April 30, 2001

The recording industry this week scared a group of researchers into withholding a report that explains how to defeat digital music encryption technology, causing outrage among opponents of the Digital Millennium Copyright Act and perhaps upping the stakes in a similar case that goes before an appeals court on Tuesday.

On Thursday, researchers withdrew "Reading Between the Lines: Lessons from the SDMI Challenge" from the schedule of this week's International Information Hiding Workshop in Pittsburgh, citing threats of legal action from the Secure Digital Music Initiative Foundation, the Recording Industry Association of America, and Verance Corp., the inventor of the watermarking technology that the researchers had cracked. A spokesperson for Princeton University said Professor Edward Felten, of the Computer Science Department, and fellow researchers from Rice University and Xerox Corp. had come to the decision on their own. He also said Princeton would not simply drop the matter and would not rule out backing Felten if he wanted to publish the research in the future. "I don't know what the next steps are," he said.

Sensitive to the pounding his organization has taken in the press throughout its fights with popular corporations like Napster and MP3.com, the RIAA's senior vice president of business and legal affairs and secretary of the SDMI Foundation, Matthew Oppenheim, responded to the withdrawal in a statement by saying the SDMI Foundation "does not --nor did it ever -- intend to bring any legal action against Professor Felten or his co-authors."

In letter dated April 9, Oppenheim explained to Professor Felten that public disclosure of his research might subject him to "enforcement actions under federal law, including the DMCA." Verance responded to Felten's withdrawal through a statement from its chairman, David Leibowitz, who said his company supports "the principle of academic discussion in furtherance of technological advancements" but believes researchers are obliged to publish their work in "an ethical and lawful manner." An unauthorized copy of Felten's research was delivered to Cryptome.org by an anonymous source and is published, along with other documents, at http://cryptome.org/sdmi-attack.htm.

Whether a prelude to a lawsuit or mere bullying, the RIAA's success in getting the research censored is more indication that the DMCA is a disaster.

"The DMCA was passed too fast, and its exceptions are often unintelligible," said Edward Samuels, a professor at New York Law School and author of "The Illustrated Story of Copyright." Samuels pointed out that Professor Felten's predicament is a step removed from a similar case, that of 2600 Magazine and code that makes it possible to copy DVDs. Whereas the DVD-cracking code published on 2600 Magazine's Web site is executable, Professor Felten's research is only theory about how to build executable code. The DMCA clearly guards against trafficking in technology that aids copyright infringement and includes criminal sanctions and a possible $500,000 penalty.

Though Felten might have a better legal argument than 2600 Magazine, Samuels said the case is by no means open and shut for either side. "If I were his attorney, I would say, 'Don't publish it,'" Samuels said, citing the cost of litigation and a reasonable chance of losing.

Pamela Samuelson, a copyright expert and professor at Boalt Hall School of Law, at the University of California, Berkeley, hopes the researchers and Princeton will fight the RIAA and do it soon.

"I would love to see the recording industry thrown out on its ear," said Samuelson, who contributed to a friend-of-the-court brief in defense of Napster last August. "It is as though they think the First Amendment has been repealed for their industry, and it hasn't."

Princeton's Felten first got involved in the research last fall, when the SDMI Foundation issued a challenge to hackers, offering a chance at $10,000 for those who could crack Verance's watermarking technology. Participants had to click on an agreement before receiving the technology to be hacked. That agreement stated that "in order to receive compensation, [participants] will be required to enter into a separate agreement, by which you will assign your rights in such intellectual property."

The agreement also states that participants may elect not to receive compensation, and by so doing would not be required to sign a separate document or assign any of [their] intellectual property rights. In a statement dated Nov. 8, Professor Felten and his fellow researchers said they had forgone the cash prize in the interest of science and eventually announced their plans to publish their results at this week's Information Hiding Workshop.

Some believe that if Felten, with or without Princeton, publishes his research and defeats an ensuing lawsuit, the case could help publishers like 2600 Magazine. The magazine, facing a suit from Hollywood movie studios, is under a permanent injunction handed down by a U.S. District Court judge. The magazine will begin its appeal on Tuesday in New York City.

"If the 2600 ruling favors the industry, I think they'll come after people like us," said John Young, the operator of Cryptome.org, which has no plans to remove Felten's research report from its Web site. Young said neither the SDMI Foundation nor the RIAA have contacted him or sent him any letters of complaint. On his site is a document from a similar site in Germany, which claims it took down its copy of the research after Xerox sent a threatening letter.

Young said he receives warnings from time to time about documents posted to his site, but nothing of great concern. And he realizes that his postings are often just as likely to offend the researchers, who have accolades at stake. Still, the right to publish information is what interests him most. "We're totally disreputable," he said. "In fact, that's our motto."

The corporate and legal bickering over these matters will have implications for almost every Internet business and publisher, but the events of the past week emphasize that the industry is far from any final answers when it comes to the validity of the DMCA and the responsibility -- and liability -- of technology companies. Professor Samuels of New York Law School suggests, however, that this is not because the "Internet changes everything," as many in the industry have proclaimed.

"Television was supposed to be dead how many times so far?" he said, stressing that copyright law and technology have a history of adapting to make the rights of copyright holders and consumers both clear and compatible. "You need the protection," he said, adding that the difficult part is setting up "the mechanisms to create a balance."

A team of academics who broke a music-watermarking scheme bowed to legal threats from the entertainment industry and decided not to describe their research at a conference on Thursday.

The Recording Industry Association of America and two other groups had threatened to sue the nine researchers if they presented a paper detailing how they circumvented a system that could aid in limiting the illicit copying of audio and video files.


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modified: November 22, 2002 by Douglas Anderson http://RicciStreet.net/port80/shoreline/casedmca.htm

Case Study: DMCA

Digital Millennium Copyright Act