July 30, 2001

7:19 AM

This NYT articleon the Digital Millennium Copyright Act (DMCA), written by Prof. Lawrence Lessig (author of an excellent book on copyright law and policy in the digital age), raises concerns that were academic prior to the recent arrest of a Russian software programmer at a Las Vegas computer security convention for violation of the act's Sec. 1201(a)(1)(A)'s anticircumvention provision. Is Lessig right that Sec. 1201 essentially makes coders (and their employers) into de facto lawmakers and, if so, is this a bad thing? If Sec. 1201 is bad policy, are there any more reasonable alternatives for effectively protecting access to software and/or providing negative incentives for the unauthorized use of software? (NYT article, registration required)
posted by estopped (16 comments total)

Lessig's article was smart and deals intelligently with the concerns regarding extra-territoriality (Sklyarov wrote his code in Russia where it was legal) and the need not to chill encryption research, but I think my old professor needs to deal with the ancient principle that the state may regulate instrumentalities of crime according to some basic and consistent principles.

Consider the following continuum: water pipe, hypodermic needle, machine gun.

* A water pipe (a "bong") is lawful to manufacture, freely sell, and possess, even though it is universally known to be an instrumentality of unlawful marijuana consumption, because (a) there is no express design for unlawful use, and (b) it can be used for nominally lawful purposes -- i.e., to smoke tobacco, even if such use is known to be rare.

* A hypodermic needle is lawful to possess, but not to lawful to manufacture or to sell / purchase without precautions such as distribution through regulated pharmaceutical channels and requiring prescriptions of the end-user before sale. However, the basic structure of regulation is identical to that of prescription drugs which may or may not be capable of any illegal use.

* A working machine gun may only be manufactured by and sold by specific government authorized persons, and may only be purchased by a very limited class of persons, and only thereafter used under certain circumstances, in certain places, and certain highly regulated manners.

I submit that the case cannot be made that anti-circumvention is in the "bong" category of instrumentalities. It is, rather, technology that in the overwhelming number of cases of unrestricted possession and distribution would be used for unlawful purposes, and that has little, if any, economic rationale except as an instrument of unlawful acts. (Consider the recent lack of success of Napster as a very good example of the economic rationale argument proving that obstensibly legal technologies are fundamentally tools of lawbreaking).
posted by MattD at 7:47 AM on July 30, 2001

It's a bad thing, preventing the expiration of copyright and completely destroying the idea of fair use.

Copyright had good intentions. It sought to balance the creator's need to eat with society's need to distribute and share ideas. I was much more of a copyright abolitionist before reading all of Title 17 Copyright Law. Like so many things, it's good intentions are now bent into a contraditory mess of clauses and loopholes.

This somehow seems incomplete without a link to Free Sklyrarov. (how do you pronounce that?) I'm going to the New York protest at the Library today. Anyone else going?
posted by joemaller at 7:53 AM on July 30, 2001

Lessig's most potent argument, I think, is that the DMCA threatens to return us to the days of perpetual copyright, since there's no statute of limitations on the protection technologies, even if the texts themselves have lapsed into the public domain, nor is there any built-in method to allow fair use.

How come Napster has to prove to a judge that its filters block 100% of copyrighted material, while Adobe doesn't have to prove that its eBook format allows for fair use within the terms of existing copyright law? Not that that needs answering.
posted by holgate at 8:03 AM on July 30, 2001

as a software developer who once wrote some open source software, i am personally really disillusioned with licenses and software law. in the future, anything i produce personally will likely be public domain. it's free, you can do whatever you want with it, i don't care. (i'm only saying that because i am producing some software i might release in the near future...)
posted by moz at 8:18 AM on July 30, 2001

For better or worse, the extensions to underlying copyrights which the DCMA effected have already made copyrights economically perpetual, or certainly vastly longer in duration than any particular encryption technology.

(The constitutionality of the DCMA copyright extension is an open question though; since copyrights are constitutional in the US only for a "limited time," one can argue that the economic perpetuity of the new rules (75 years beyond the death of the creator), together with the implied expectation that there will be subsequent extensions on behalf of the early mass-media copyrights, violates the constitution.)
posted by MattD at 8:49 AM on July 30, 2001

* A water pipe (a "bong") is lawful ... because (a) there is no express design for unlawful use, and (b) it can be used for nominally lawful purposes ... even if such use is known to be rare.
...
I submit that the case cannot be made that anti-circumvention is in the "bong" category of instrumentalities. It is, rather, technology that in the overwhelming number of cases of unrestricted possession and distribution would be used for unlawful purposes, and that has little, if any, economic rationale except as an instrument of unlawful acts.

A good post, Matt, but I don't agree with the conclusions of your metaphor. From the way that you describe it, it sounds like anti-circumvention and bongs, both have a rare-but-existent lawful function. Similarly, in many cases (e.g., the Sklyrarov incident), there "is no express design for lawful use".

Still, international authority and copyright duration aside, if you sell the technology to manufacture a key to your neighbour's house, should that be legal?
posted by Marquis at 10:55 AM on July 30, 2001

if you sell the technology to manufacture a key to your neighbour's house, should that be legal?

It is.
posted by kindall at 11:09 AM on July 30, 2001

I submit that the case cannot be made that anti-circumvention is in the "bong" category of instrumentalities.

I like your bong/needle/machine gun analogy, but I'd argue that while the DMCA treats circumvention methods as either needles or machine guns, it is written broadly enough to cover things that should be treated as bongs. There has been some semi-serious discussion on the Cyberia-L mailing list about whether cereal box Secret Decoder Rings could be illegal under DMCA. The consensus seems to be that, at least under certain circumstances, they could be. (Also, we shouldn't forget that copyright violations, while damaging, don't usually lead to physical harm--so the analogy isn't perfect.)
posted by feckless at 11:16 AM on July 30, 2001

It is.

Oh. :) Well that answers that question, then.
posted by Marquis at 11:23 AM on July 30, 2001

It's actually Sklyarov, joe. The middle vowel is the "ya" that is the backwards R. But after a soft consonant the "y" is usually dropped. Sklah-rawv is the closest English approximation (there's more of a roll in it, I would think, for natives).
posted by dhartung at 12:06 PM on July 30, 2001

A big problem is that although the DMCA is quite specific in some ways, it leaves important things undefined, or poorly defined. In this case, as I understand it Adobe's scheme was nothing more than a ROT-13 system, which is like using a cereal-box en- and decoder ring as your "circumvention device" (as feckless implies).

I personally think the DMCA overreaches in many other ways - but at the very least, it should specify (or be made to specify) a water-level for the encryption system - i.e., to gain the protection of such a clause, a company has to do X and Y and Z to ensure their encryption system etc. is reasonably secure.

Further, I would submit that X or Y or Z should include an independent academic analysis of the security/encryption system to be used, thus getting back into the spirit, a bit, of copyright being about balancing the rights of creators and the public.
posted by mikel at 12:36 PM on July 30, 2001

Similarly, in many cases (e.g., the Sklyrarov incident), there "is no express design for lawful use".

That statement is false.

Adobe's software gives publishers the right to lock an eBook from being printed, and often you don't know that is the state of the work until you've already purchased it. If I buy a 500 page eBook on-line because that is more convenient or in some cases the only format available, I have an established legal right to expect that I will be able to move that work into a format that is more convenient for reading (for instance printed).

If I buy a 500 page eBook at work, with the intention of reading it at home, it's reasonable to expect I might be frustrated after the fact to find that the book I purchased is locked to the machine I downloaded it to. Adobe claims their software allows works to be lent to another machine or even transferred to another machine, but the implementation of that seems to be murky right now as I was unable to find how to do it with an eBook that I purchased. Interestingly, I was able to find Elcomsoft's product, so what does that say about their desire to support that lending/transfer ability?

Adobe makes no provision for reading their works on a Palm or other handheld device even though a consumer may find that a convenient and portable display choice.

It is not illegal to do many of the things that the Elcomsoft program enables. Those things have long been covered under fair use. It is now illegal to figure out how to exercise your legal rights and it is illegal to tell somebody how to do it for commercial reasons.

And, the Elcomsoft software only works if you've already purchased the eBook. You must have a password before it will function. Elcomsoft says they did this to protect works provided in the eBook form for theft. I think it's more likely they did this because it was needed for their decryption algorithms, but that's another matter. The fact is they aren't making keys for other people's houses. They're giving you a key for your house and Adobe doesn't like it because they assume that all consumers are likely enough to be criminals that inconveniencing them with restrictive measures is justified.
posted by willnot at 1:04 PM on July 30, 2001

Willnot: Similarly, in many cases (e.g., the Sklyrarov incident), there "is no express design for lawful use".
...
That statement is false.

Sorry, your beef was a typo on my part. If you look at what I was quoting, it should have been:
There "is no express design for unlawful use".

Two little letters can make all the difference. We do see eye to eye.
posted by Marquis at 1:10 PM on July 30, 2001

And Mikel - Adobe's system wasn't using Rot 13. A story posted to Slash Dot seems to have given everybody that impression. One of Adobe's partners was using Rot 13 though and it would be illegal under DMCA to circumvent that or even Pig Latin for that matter.

What's even more troubling and considerably more anti-consumer/pro monopoly, you could also make the case that DMCA makes it a crime to figure out how to read/write document formats like a Microsoft Word Docs. in a competitive product like Work Perfect.

And, it might be possible to arrest the programmers that built the filters as opposed to just brining a civil action against the company that hired the programmers. (I’m not sure that’s the case. Dmtry was just a programmer for Elcomsoft, but he was also listed as the copyright holder for the software, so it could be that is why they were able to bring criminal charges against him.)
posted by willnot at 1:10 PM on July 30, 2001

Thanks for the clarification, willnot, about the ROT-13 business.
posted by mikel at 7:42 PM on July 30, 2001

I was thinking about making a flyer with some lines of copyrighted text printed backwards. At the top of the page would be the words: "If you hold this page up to a mirror, you are violating section 1201 of the DMCA, and could be subject to up to a $500,000 fine and 5 years in jail."

Or something like that. Then I'd make a pdf, put it up on my website, and post a link to metafilter, memepool, and fark. And then we'd be done with this stupid Act. Anybody see a failure in my logic here?
posted by MarkO at 11:27 AM on August 1, 2001