DMCA should scare us all

Has the Digital Millenium Copyright Act turned the tide on piracy or opened the door to corporate abuse?
Written by Marc Wagner, Contributor

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. 

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