DMCA should scare us all

DMCA should scare us all

Summary: Has the Digital Millenium Copyright Act turned the tide on piracy or opened the door to corporate abuse?

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TOPICS: Legal
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I was thinking about how much things have changed in IT over the last twenty-plus years and then I remembered a saying an old fried of mine used to use:  The more things change, the more they stay the same.  In the case of the Digital Millennium Copyright Act, however, I am not sure sure this old adage holds true. 

In the 1960's, "Xerox" became a household word and 'fair use' took on a whole new meaning for the courts (see 17 U.S.C. section 107).  

During my college years, it was not uncommon to buy two LPs (long-playing records -- for you 'kids' out there) and a blank 90-minute cassette so that you and one or two of your friends could share the expense of a couple of record albums. 

Then there was the Sony BetaMAX case [464 U.S. 417] and 'time-shifting' entered our lexicon.

The analog technology of the 1960's and 70's made 'acceptable' reproductions of most printed and recorded material but far from 'perfect' copies.  In practice, this 'casual piracy' pushed the limits of 'fair use' (intended primarily to serve educational purposes) but really didn't impact copyright holders to any great extent.  (For a comprehensive look at the potential impact the DMCA could have on the 'fair use' exceptions to copyright law, see my blog in IT Education: DMCA threatens academic freedom.

With the introduction of the personal computer came the ability to make perfect copies of digital material.  Not to worry though, software was about the only digital media there was and too few people owned PCs (let alone had access to the Internet) to make piracy a big problem. 

To a large extent this capability to make perfect copies of software brought the cost of that software down dramatically -- to the point that most users would be just as happy to buy their own copy than to have an illegal copy.  When costs could not be brought down any further, the copy-protection schemes of the early 1980's were soon replaced with reasonable licensing practices which were not too intrusive for the legitimate software buyer yet made it inconvenient (though not impossible) for the wholesale pirates -- out to make a buck. 

By the 1990's, Windows 3.x was on the market.  (Yeah, yeah... I know that Apple did 'windows' first in 1983, four years before Microsoft released Windows 2.0 -- actually Xerox PARC did it first in 1981.)  Anyway, by now the user-friendly personal computer was here to stay.  Along with it came the ability for just about anyone to make perfect copies of just about anything that was stored (or could be scanned) digitally.  By the end of the 1990's ubiquitous access to the Internet raised the stakes even further.  For the first time, pirated digital material could be distributed to millions of people in a matter of hours and the pirates could hide behind the anonymity of the Internet.  (A topic for another blog.) 

During the 1990's, the REAL pirates (those making money off of the intellectual property of others) went high-tech -- offering users (mostly college students with access to their university's high-speed network) free access to peer-to-peer file sharing tools. 

Knowing full-well that most people don't understand anything about copyright law -- or that they were taking part in felony theft of intellectual property, these unscrupulous vendors were putting their own customers at risk and what was once 'casual piracy' (sharing of copyrighted music among friends) had become the the wholesale piracy of music (and motion pictures), often by unwitting participants who had no concept of the scale of their theft, or of the legal risk to themselves (and their families) as a result of their participation. 

Overly dramatic?  Perhaps, but the music and motion picture industries didn't seem to think so.  Enter the DMCA ...

The Digital Millennium Copyright Act (1998) [H.R.2281.ENR] was intended to protect copyright holders from the level of copyright infringement now available.  Its not the intent of the law but rather its implementation that is most alarming. 

We like to think of 'copyright holders' as people like us who just want to get paid for their efforts.  In truth, most copyrights are signed over to large multi-national corporations in exchange for pennies-on-the dollar returned to the original author/artist.  (At one time, copyrights expired with the death of the author/artist -- no more, corporate entities go on forever and so it seems, do their copyrights.) 

In the past, copyright law was written so that 'intent' played an important role in determining infringement.  Infringement for personal use (sharing with your friends, for instance) was more or less ignored, or otherwise treated as 'fair use'.  In crafting legislation, the government always viewed its citizens as benign.  It was up to the courts to prove intent to infringe -- not the legislative branch of government.  There was no attempt to restrict the development of any technology simply because it could be used for illicit purposes as long as its intended use was for legitimate purposes. 

The DMCA changed all that.  For the first time, legislation was crafted which assumed that some technologies were, in and of themselves, illicit and and should be prohibited in favor of other technologies, which would be protected through legislation -- at the expense of innovation (and the citizens of the United States).  Mere possession of said technology would make citizens guilty of a crime -- whether they had used the technology for illicit purposes or not.  Never mind that international law had no similar prohibitions -- leaving users easily confused about which technology available via the web was legal and which was not.

It would be generous to call this collusion between government and industry 'unseemly' and yet, the DMCA remains largely unchallenged.

The most talked about impact of the DMCA is Digital Rights Management (DRM, for short, although my colleague, David Berlind, prefers to call it C.R.A.P.).  While DRM is intended to provide protection for copyright holders (whomever they may be) from illicit copies of their materials being used by other than those that purchased the material.  It has become much more than that.  

DRM has become corporate leverage.  No longer can you purchase copyrighted material from one vendor and be assured of being able to play (or view) that material on another vendor's player.  What's more insidious is that DRM technology comes with an End User License Agreement (EULA) whose terms can be altered at any time.  Should such terms become unacceptable to the user, there is no recourse except to stop using the copyrighted material!  Sometimes, the DRM technology is tied to a subscription service.  You can buy the material but, if you stop subscribing, you lose access to the material you've bought.

The DMCA has given license to corporate use of subterfuge as well.  An excellent example is Sony's aborted use of root-kits in its CD-based DRM scheme.  Root-kits were invented as a means for UNIX internals programmers to gain access to their own protected code -- kind of an escape hatch.  Root-kits have long been in the toolkit of unscrupulous hackers but never before has a multi-national corporation turned to their use in order to hide the presence of its technology on a customer's computer.  This same technology could just as easily be used by any unscrupulous vendor to sabotage the products of another vendor at will. 

In the mean time, what about the REAL pirates?  Has the DMCA, or DRM in general, stopped the mass distribution of illicit copies of music or movies, or software anywhere in the world? 

There are dozens of articles on ZDnet alone about Microsoft's attempts to protect themselves from piracy.  So far, all we've heard about are 'false positives' and other WGA horror stories.  Have we heard of even one piracy ring which has been thwarted by this technology? 

The pirates don't care if Microsoft nails the hapless user.  (The one who is being targeted by DRM, WGA, and similar technologies.)  The pirates already have their ill-gotten gains. 

It's time to throw the rascals (who passed the DMCA) out of Congress and elect those with the backbone to craft legislation which is in the interest of authors/artists and their audience and stop serving corporate interests in exchange for campaign contributions. 

Until this law is changed, be afraid, be very afraid. 

Topic: Legal

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29 comments
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  • "DRM is corporate leverage" - Excellent choice of words!

    I have been trying to think of a good one-sentence of why DRM is bad. Giving it a more memorable name, such as CRAP, helps, but if you can't explain why its CRAP within a couple of sentences you've lost your audience. "DRM is corporate leverage" accomplishes this.

    Indeed, not only is it accurate and can form the basis of a discussion with a well-educated person, but it also sounds somewhat sinister for those less-fortunate.
    Feldon
  • DMCA hands over copyright enforcement to the copyright holder! Hello???

    The US Legislature through the DMCA and similar laws, has effectively moved copyright enforcement from the realms of the Judicial branch of government (and law enforcement) to the copyright holders themselves! This is utterly ludicrous!

    If you don't believe me, just chew on this. The terms of your product/service EULA is defined by who? The copyright holder. And those terms can be changed at any time by who? Again, the copyright holder. And who controls the hardware/software that prevents end-users from circumventing the terms of the EULA? The copyright holder.

    But surely these EULA's must be subject to existing copyright laws (and other applicable laws)?? Nope. Existing copyright allows the end-user to make unlimited copies for personal use. It pretty much allows the end-user to use the material in any way they wish as long as its only for personal use. This is fair use. But EULA's and the enforcing DRM are in fact restricting fair use. You are only allowed 5 backups, or you are only allowed one transfer, or you can only use the material on this particular brand of hardware.

    And its all because the US Legislature is being lazy. They are either a) being lobbied (paid/encouraged/etc) by copyright holders to take this route, or b) too lazy to get creative and come up with legislation that protects copyright holders without intruding on MY RIGHT TO FAIR USE.
    Feldon
  • it was Mr. Clinton who signed this CRAP into law

    "It's time to throw the rascals (who passed the DMCA) out of
    Congress and elect those with the backbone to craft legislation
    which is in the interest of authors/artists and their audience and
    stop serving corporate interests in exchange for campaign
    contributions."

    I'm not sure of the author (s) of the original draft presented to
    Congress but it's certain they were well supported by big money
    constituents and lobbyists! It's so draconian in most judical
    interpretations lately that it practically reglates any media
    purchases to one time use now!
    BillyB40
  • It scares me.

    Excellent article, and lets all hope we get elected officials in office who see it this way.
    WebThingy
  • I am very worried

    The DMCA is a nightmare, no question. Everyone that feels the same needs to let their congressman know.

    http://ticklephoto.blogspot.com/
    opensourcepro
  • Correcting history

    Software piracy might have prevented a major US industry from coming into existence.

    You wrote:
    "Not to worry though, software was about the only digital media there was and too few people owned PCs (let alone had access to the Internet) to make piracy a big problem."

    Making unauthorized copies of software for pc's was the subject of Bill Gates's historic public letter.

    Though piracy obviously continued and did in fact assist the growth of computer use, enough software was bought to provide revenues to a number of large companies.


    And the "real pirates" are the people who make unauthorized copies of CDs and DVDs. That's where the money is.

    You wrote:

    "During the 1990's, the REAL pirates (those making money off of the intellectual property of others) went high-tech ? offering users (mostly college students with access to their university's high-speed network) free access to peer-to-peer file sharing tools."

    Crimes do have victims, but the fact that music companies, for example, suffered little or no financial loss (and may have gained) from file sharing shows that this is an illegal activity which does not do much damage.

    The Supreme Court in Grokster, by the way, made subject to penalty only for-profit companies which publicly advocate breaking the law and state that they are making their money by such law violations.

    Peer-to-peer software is not illegal and sources of the software which do not make a profit or advocate illegal activity were unaffected. There has been a disinformation campaign about the meaning of the ruling, I think.
    Anton Philidor
    • No, peer-to-peer is NOT (nor should it be) ...

      ... illegal but Naptster and others knew good and well that they were enticing college students to infringe on the copyrights of others and Napster expected to make money off of this activity. This is unscrupulous use of software which has legitimate use. Recording artists lost money as a result of Napter's deceptive practices.
      M Wagner
      • Prove it

        ---Recording artists lost money as a result of Napter's deceptive practices.---

        Really? What's your proof? Can you show that any recording artist lost any actual money at all due to Napster? Can you assume that if someone downloaded a song, they would have spent $18.99 for that same song if it wasn't available for free? How can you reconcile this concept with cd sale revenues being at their all time high during the Napster era, and dropping off considerably once Napster went under?
        tic swayback
        • Common sense tells you ...

          ... that any song not sold costs the recording artist money. Many, if not most, students would be willing to copy a song from a friend's CD rather than purchasing the CD themselves. This is still illegal but there is a practical limit to this kind of theft. Since, as you suggest, not all of those people would have bought the CD to get that one song, there is a threshold below which, the theft would have made no difference in the royalty paid to the artist.

          But there is a huge difference between giving a dozen of your friends a copy of that song and making that song available for FREE to literally MILLIONS of potential customers for that song. When those customers have no concept of the scale of there theft, yet the entity making the technology available intends to make money off of that music, rather than their own technology, this is unconscionable behavior.

          This doesn't even address the impact on university networks, which were built for research but which were being used by Napster, and by their students to commit petty theft.

          Petty theft by a few students quickly turned into petty theft buy millions of students and grand theft by Napster.

          The students were ignorant of their complicity, Napster was not.
          M Wagner
          • A few points missed

            First of all, it's not "theft". There are specific laws that apply to theft and they do not apply here. What you're talking about is copyright infringement, and there are specific laws that deal with it. In many ways, it's a much more serious crime than theft, and calling it "theft" belittles the offense.

            Next, as you acknowledge, if a song is downloaded for free, that doesn't correlate into a lost sale. I've legally downloaded many free songs (offered by the artists themselves). If I couldn't get it for free to sample it, I probably would not have bought it. So there's no way you can ever come up with any correlation between p2p activity and "lost sales". How would you ever prove it?

            Now, given that almost every band makes nothing from cd sales, how have they been hurt by this? If anything Napster has boosted their popularity, resulting in increased concert ticket sales and merchandise sales, places where they actually make money. Also, every single study done shows a correlation between people who use p2p networks the most and people who buy the most cds. If anything, downloaders buy more cds than non-downloaders.

            Again, the facts are difficult to reconcile, and it's impossible to make clear cut statements about p2p networks harming artists or helping artists. Most likely, they do both. Just like RIAA companies, which help artists get recognized, yet take all of their money and put them into debt for the rest of their lives, reneging on the signed contracts they issue.
            tic swayback
      • "Naptster.....knew good and well".....Really?

        You have no authority nor have you any right to say what ANYONE other than yourself knew or knows.
        I could say that you don't know your rear end (trying to be civil here) from a hole in the ground. Does that make it true? Do I have the right to say that about you? Have you delegated the authority to me to say such things? I don't think so.
        You should put your brain in gear before opening your mouth (keyboard, in this case).
        Ole Man
    • Re: Correcting history

      [i]Crimes do have victims...[/i]

      Not crimes created by the DMCA, necessarily.

      If I crack the CSS on a DVD so I can watch an out-of-region movie I paid for, that's a crime. Who's the victim?


      :)
      none none
      • Price variation

        A DVD purchased from a lower price region and played in a higher price region has cost the DVD seller the difference in prices between the regions.

        I think the region system a foolish idea. This is another example of the law being excessively protective of content providers. Especially because, like other laws, this one is ineffective for any purpose except increasing the control by content companies over use.
        Anton Philidor
        • No basis in the law

          There is no basis in the law that allows them to price discriminate like that... That's #1.

          Change that... You use DeCSS to Play a DVD you bought in Norway in Norway, but on a Linux PC. The courts in Norway already ruled that it was legal hence DVD Jon spent no time in jail.

          Playing legally purchased content shouldn't be against the law... although it can be under the DMCA. That needs to be changed!!!!
          Edward Meyers
  • How to protect industry.

    Some digital material should not be copied.
    The copyright holder loses value by unauthorized copying, and items individuals and organizations have good reason to restrict access should be protected.

    Fair use is an agreed exception which applies in certain circumstances for certain purposes, and often to a limited portion of the material.

    Congress has as one of its resonsibilities the prevention of harm to legal industries. This can go as far as the use of the State's police power to enforce the rights of private corporations, as shown by Justice Department responsibilities concerning copyright.

    Given the fact that IP is now the largest asset in the US and the creation of IP is the business of a great deal of US industry, it's unrealistic to expect Congress to ignore IP problems.

    The problem is the lack of sophistication in understanding the problems and the willingness to harm individuals in devising the solutions.

    I think it's a better argument to say that Congress is doing the right thing in broad principle, but in a damaging and ineffectual way.

    IP is going to be protected by any group of politicians. Very few opposed to private ownership of property and the success of companies are going to be elected in the US.

    An effective strategy will advocate better alternative protections rather than insist all protections be removed. Or insist only that current protections are too obtrusive.
    Anton Philidor
    • Agreed ...

      ... but the methods legitimized by DMCA are not only ineffectual, they effectively criminalize legitimate 'fair use' and have little impact on piracy. The music and motion picture industry (not the artists that they represent -- the creators of the material in question) end up not only with control over current access to copyrights material -- they end up controlling FUTURE access of the material by the very people who have already purchased the right to access.

      Right goal -- wrong solution, driven not by content creators but by corporate interests who want to sell (or rent) the tools users need to access the content. Content needs to be protected but not at the expense of choice over how that material is accessed.
      M Wagner
      • Suggesting alternatives.

        I think you're right, that the industry has used a real problem in order to obtain inappropriate control over material after purchase.

        The problem in improving the situation is that critics of the current effort do not make the case that better ways are available, but often only make statements about freedom. That's why DMCA proved popular in Congress when it was reviewed recently.

        I think the argument to Congress should be, in colloquial terms, You've been suckered. The results of the DMCA cannot be considered effective or acceptable, even to someone who agrees that IP is a valid concept which should be protected.

        Among DMCA's best advocates are its opponents.
        Anton Philidor
  • Saving the industry from suicide

    A couple of notes you left out--why did the music industry shift from analog to digital? Demand for vinyl was still strong at the introduction of the cd, and continued for many years, yet despite this, the RIAA phased out vinyl (analog) in favor of cds (digital). The reason they did this was that digital cost about half as much to manufacture as vinyl, yet they could charge twice the sale price for it. Plus, they could get people to re-buy music they already owned on vinyl. Sadly, they didn't consider any of the inherent qualities of digital music, and the problems to which they could (and have) lead. Instead, they were blinded by their greed, by the idea of cutting costs and raising sale prices. So in essence, if this proves to be their downfall, it will be a case of suicide, death by greed and lack of foresight.

    Compare this with the book industry. The book industry could just as easily phase out paper, and force you to get all your books in electronic form. Since paper, print and binding costs are the most expensive part of making a book, profits would soar. Yet obviously, the same sort of issues that are facing the RIAA would come to roost for the book industry. So they seem to have decided not to be blinded by greed.

    You also left out a further Fair Use denial that the DMCA causes. Let's say a library buys a song with DRM. That song, eventually (in a few centuries) goes into the public domain. But, the copy the library purchased is still protected by DRM. Even though the song is no longer under copyright, it can't be accessed without circumventing the DRM, which is illegal under the DMCA. So the song has, in essence, been removed from the public domain, and placed under a never-ending copyright. So much for our cultural heritage.

    Remember that copyright is a compromise, it's a deal struck between the citizens of a country and creators. We allow them to have a limited monopoly on things they create in order to encourage them to create more. The key word there is "limited". Copyright does not give the creator absolute control over the material. Just control over a few limited aspects of it. This is done at the pleasure of the public--if at some point the compromise shifts heavily out of our favor, then we should abolish it. This is something most industries involved here don't seem to understand. They get copyright because we allow them to have it because it does us good in the long run. Once it stops doing us good, there's no reason for us to allow it.
    tic swayback
    • All good points ...

      ... at one time, copyrights died with the author/creator, it has just been in the 20th Century that Congress has allow corporate interests to retain copyrights after the author/creator was dead. This specifically came about when Walt Disney died and the Disney Estate (or perhaps the Disney Corporation) Lobbied Congress to extend copyright for x number of years after the author's/creator's death. This has been extended a number of times now thanks to corporate pressure. I believe the limit is now 75 years but it will end up being extended further if corporate entities in America have anything to say about it.

      Yes, we should be very concerned about the fact that copyrights may never again revert to the Public Domain. A good example here is the Bible. There are a number of English Bibles published before 20th Century which are in now in the Public Domain (and of course, the original Greek and Hebrew texts) but the newest translation that I know about that is still in the Public Domain is the American Standard Version (1901). All others are protected by one or another Bible organization who has copyrighted their own translation.

      It's not lack of greed that has keeps book publishers from going electronic -- it is that most still don't understand how to leverage the technology to the benefit of their customers and themselves. An excellent example for doing it right is Encyclopaedia Britannica. They distribute everything electroncially these days. You can buy the super-deluxe $2500 set (I don't know if it is still leather-bound or not) or you can get it all on DVD for $50. Which would you choose?

      As for corporate greed ... Ajusted for inflation, a CD is no more expensive than an LP was in the 1970's. In fact, it is quite a bit less. I remember paying $5.95 for a two-record set in 1973. Today, a CD is under $15 and a two-CD set is usually under $20. A VW beetle was under $1800 in those days. Today, a VW Beetle costs $18,000 dollars so it's not really about greed. It is about how the RIAA and the MPAA have chosen to go about protecting the copyrights they hold.

      It's not about keeping you from distibuting the material onto the Internet (which is clearly illegal), it is about controlling how and when you use the material legally that makes the DCMA an insidious piece of legislation.
      M Wagner
      • Then and now

        ---It's not lack of greed that has keeps book publishers from going electronic -- it is that most still don't understand how to leverage the technology to the benefit of their customers and themselves.---

        Not a bad analogy for what the RIAA did. They didn't understand the results of what they were doing, and rushed right into it (to garner the gold rush it resulted in). For the book publisher, the technology to use wasn't as obvious, and more importantly, they've seen what has happened to the music industry. You may indeed be right that it wasn't a lack of greed that resulted in the current state of things for books, but at least it's an industry that considered the consequences of going digital, something the RIAA either forgot to do, or ignored because of their greed.

        ---As for corporate greed ... Ajusted for inflation, a CD is no more expensive than an LP was in the 1970's. In fact, it is quite a bit less.---

        Your dates are off and your analysis isn't relevant here. CDs started into the mainstream in what, the mid to late 1980's? So adjust prices from there, not from 1973. And in 1987, you could buy an lp for $6.99 and a cd of the same lp for at least $20. That's what drove the decision, not some vague idea of what prices would be 20 years later. It was about an immediate price increase. Also note that most cds retail for $17.99 to $18.99 (excluding sale items and loss leaders), not $15.

        ---It's not about keeping you from distibuting the material onto the Internet (which is clearly illegal), it is about controlling how and when you use the material legally that makes the DCMA an insidious piece of legislation---

        Which is the whole point of DRM. If there's something you want to do with content, it has value, and the RIAA/MPAA want to charge you for that value. Best explained here, as you will soon have to pay for using each button on your remote control:
        http://www.boingboing.net/2006/09/15/amazon_unbox_to_cust.html
        I once attended a DRM negotiation where an MPAA vice-president said, "Watching a show that's being received in one room while you're sitting in another room has value, and if it has value, we should be able to charge money for it." Siva Vaidhyanathan calls this the "if value, then right" theory -- if something has value, someone must have a right to sell it. So while you might be accustomed to extracting unexpected value from your old media -- ripping a CD to play it on your iPod, copying a cartoon and sticking it on your fridge, taking your books with you when you move overseas -- forget about it from now on.

        Every conceivable source of value for DRM digital movies is now potentially for sale. I've heard proposals for "discounted" movies that you can't fast-forward ("discounted" in the sense that products you buy with a store loyalty card are "discounted" -- they raise the price unless you use the card). Prepare for the future where every button on your remote has a price-tag on it.
        tic swayback