Slashdot Mirror

Jason Koebler writes: "SleepyHead" is a free, open-source, and definitely not FDA-approved piece of software for sleep apnea patients that is the product of thousands of hours of hacking and development by a lone Australian developer named Mark Watkins, who has helped thousands of sleep apnea patients take back control of their treatment from overburdened and underinvested doctors. The software gives patients access to the sleep data that is already being generated by their CPAP machines but generally remains inaccessible, hidden by DRM and proprietary data formats that can only be read by authorized users (doctors) on proprietary pieces of software that patients often can't buy or download. SleepyHead and community-run forums like CPAPtalk.com and ApneaBoard.com have allowed patients to circumvent medical device manufacturers, who would prefer that the software not exist at all. Medical device manufacturers fought in 2015 to prevent an exemption to the Digital Millennium Copyright Act to legalize hacking by patients who wanted to access their own data, but an exemption was granted, legalizing SleepyHead and software like it.

An anonymous reader quotes a report from Motherboard: Friday, the Librarian of Congress and U.S. Copyright Office renewed several key exemptions (and added a few new ones) to the Digital Millennium Copyright Act. This go round, they've extended some essential exemptions ensuring that computer security researchers won't be treated like nefarious criminals for their contributions to society. As part of an effort to keep the DMCA timely, Congress included a so-called "safety valve" dubbed the Section 1201 triennial review process that, every three years, mandates that activists and concerned citizens beg the Copyright Office and the Librarian of Congress to craft explicit exemptions from the law to ensure routine behavior won't be criminalized.

The exemptions still have some caveats. Specifically, the Copyright Office ruling only applies to "use exemptions," not "tools exemptions" -- meaning security researchers still can't release things like pen-testing tools that bypass DRM, or even publish technical papers exploring how to bypass bootloaders or other Trusted Platform Modules to test the security of the systems behind them. But other modest changes to the rules were incredibly helpful, notes Blake Reid, Associate Clinical Professor at Colorado Law. Specifically, the new exemption removes a "device limitation" from previous exemptions that potentially limited researchers to investigating software only on "consumer" devices; hindering their ability to investigate security vulnerabilities in things like the cryptographic hardware used in banking applications, networking equipment, and industrial control systems. The new exemption also modified the "controlled environment limitation" from the previous exemption, which was often read to imply that researchers had to conduct their work in a formal laboratory, potentially hindering research into things like integrated building systems like internet-connected HVAC systems.

Kyle Orland reports via Ars Technica: A group of video game preservationists wants the legal right to replicate "abandoned" servers in order to re-enable defunct online multiplayer gameplay for study. The game industry says those efforts would hurt their business, allow the theft of their copyrighted content, and essentially let researchers "blur the line between preservation and play." Both sides are arguing their case to the U.S. Copyright Office right now, submitting lengthy comments on the subject as part of the Copyright Register's triennial review of exemptions to the Digital Millennium Copyright Act (DMCA). Analyzing the arguments on both sides shows how passionate both industry and academia are about the issue, and how mistrust and misunderstanding seem to have infected the debate.

Kyle Orland reports via Ars Technica: A group of video game preservationists wants the legal right to replicate "abandoned" servers in order to re-enable defunct online multiplayer gameplay for study. The game industry says those efforts would hurt their business, allow the theft of their copyrighted content, and essentially let researchers "blur the line between preservation and play." Both sides are arguing their case to the U.S. Copyright Office right now, submitting lengthy comments on the subject as part of the Copyright Register's triennial review of exemptions to the Digital Millennium Copyright Act (DMCA). Analyzing the arguments on both sides shows how passionate both industry and academia are about the issue, and how mistrust and misunderstanding seem to have infected the debate.

Kate Wagner is facing potential legal charges by real estate Zillow for allegedly violating the site's terms of service by reproducing images from their site on her blog. Wagner's blog is called McMansion Hell -- a Tumblr blog that "highlights the absurdity of giant real estate properties and the ridiculous staging and photography that are omnipresent in their sales listings," writes Natt Garun via The Verge. From the report: A typical McMansion Hell blog post will have a professional photo of a home and / or its interior, along with captions scattered throughout by Wagner. She also adds information about the history and characteristics of various architecture styles, and uses photos from the likes of Zillow and Redfin to illustrate how so many real estate listings inaccurately use the terms. Under each post, Wagner adds a disclaimer that credits the original source of the images and cites Fair Use for the parody, which allows for use of copyrighted material for "criticism, comment, news reporting, teaching, scholarship, and research." In a cease and desist letter to Wagner, Zillow claims Wagner's reproduction of these images do not apply under the Copyright Act. Additionally, the company claims McMansion Hell may "[interfere] with Zillow's business expectations and interests." As a result of the potential lawsuit, Wagner has temporarily taken McMansionHell.com down. In a statement to The Verge, Zillow said: "Zillow has a legal obligation to honor the agreements we make with our listing providers about how photos can be used. We are asking this blogger to take down the photos that are protected by copyright rules, but we did not demand she shut down her blog and hope she can find a way to continue her work."

eldavojohn writes It's 2015 and the EFF is still submitting requests to alter or exempt certain applications of the draconian DMCA. One such request concerns abandoned games that utilized or required online servers for matchmaking or play (PDF warning) and the attempts taken to archive those games. A given example is Madden '09, which had its servers shut down a mere one and a half years after release. Another is Gamespy and the EA & Nintendo titles that were not migrated to other servers. I'm sure everyone can come up with a once cherished game that required online play that is now abandoned and lost to the ages. While the EFF is asking for exemptions for museums and archivists, the ESA appears to take the stance that it's hacking and all hacking is bad. In prior comments (PDF warning), the ESA has called reverse engineering a proprietary game protocol "a classic wolf in sheep's clothing" as if allowing this evil hacking will loose Sodom & Gomorrah upon the industry. Fellow gamers, these years now that feel like the golden age of online gaming will be the dark ages of games as historians of the future try to recreate what online play was like now for many titles.

On January 26th, unlocking a cell phone that is under contract became illegal in the U.S. Just before that went into effect, a petition was started at whitehouse.gov to have the Librarian of Congress revisit that decision. "It reduces consumer choice, and decreases the resale value of devices that consumers have paid for in full. The Librarian noted that carriers are offering more unlocked phones at present, but the great majority of phones sold are still locked." The 30 days time limit on the petition is almost up, and it's about 11,000 signatures shy of the amount necessary to ensure a response from the Obama administration (100,000 total, recently increased from 25,000). The creator of the petition received a Cease & Desist letter from Motorola in 2005 for selling software that would allow users to unlock their phones, and he thinks it's only a matter of time before such legal threats begin again. This is part of a larger battle to protect the way consumers can use their devices. While it's still legal for people to root their phones, the Librarian of Congress failed to expand that legal protection to tablets, even though the devices are incredibly similar. The Librarian's decision (PDF) needs further review, and if the White House petition doesn't get enough signatures by February 23, such a review may not happen.

mede writes "In an interesting turn of events, Sony might have stumbled into a tough nut to crack. George Hotz (aka GeoHot) famous for his iPhone hacking achievements, is planning on fighting the big corporation on removing his free speech rights at utilizing his fully paid for hardware. Hotz has always claimed being anti-piracy (since iPhone activities) and says he has never pirated any game or even signed PSN agreements. He's asking for donations to fight Sony back and try to achieve something similar to what was previously accomplished by the EFF with regard to cellphones. I've already donated."

whisper_jeff writes "The US government on Monday announced new rules making it officially legal for iPhone owners to 'jailbreak' their device and run unauthorized third-party applications, as well as the ability to unlock any cell phone for use on multiple carriers." The EFF has further details on this and some of the other legal protections granted in the new rules.

NewYorkCountryLawyer writes "A 3-judge panel of the US Court of Appeals for the 5th Circuit has ruled that a Texas teenager was not entitled to invoke the innocent infringement defense in an RIAA file-sharing case where she had admittedly made unauthorized downloads of all of the 16 song files in question, and had not disputed that she had 'access' to the CD versions of the songs which bore copyright notices. The 11-page decision (PDF) handed down in Maverick Recording v. Harper seems to equate 'access' with the mere fact that CDs on sale in stores had copyright notices, and that she was free to go to such stores. In my opinion, however, that is not the type of access contemplated in the statute, as the reference to 'access' in the statute was intended to obviate the 'innocence' defense where the copy reproduced bore a copyright notice. The court also held that the 'making available' issue was irrelevant to the appeal, and that the constitutional argument as to excessiveness of damages had not been preserved for appeal."

snydeq writes "Fatal Exception's Neil McAllister suggests that Wolfram Research's claim to copyright of results returned by the Wolfram Alpha engine could have significant ramifications for the software industry. 'While software companies routinely retain sole ownership of their software and license it to users, Wolfram Research has taken the additional step of claiming ownership of the output of the software itself,' McAllister writes, pointing out that it is 'at least theoretically possible to copyright works generated by machines.' And, under current copyright law, if any Wolfram claim to authorship of the output of its engine is upheld, by extension the same rules will apply to other information services in similar cases as well. In other words, 'If unique presentations based on software-based manipulation of mundane data are copyrightable, who retains what rights to the resulting works?'"

Frequent Slashdot contributor Bennett Haselton writes "A newspaper copies a rant from a girl's MySpace page and reprints it as a 'Letter to the Editor' without her permission. Could the girl sue for copyright violation? This question provoked much more disagreement among legal experts than I expected." Read on for the details.
In 2005, a college student published a rant on her hometown on her MySpace page, beginning with, "The older I get, the more I realize how much I despise Coalinga." Her former high school principal found the rant while browsing her MySpace page (what?), and forwarded it to the town newspaper, which published the "rant" without the girl's permission, signed with her full name, as a letter to the editor (what?). The resulting fallout included death threats against the family and the closure of the 20-year-old business owned by the girl's father. Four years later, a judge ruled that the girl could not sue for "public disclosure of private facts" because the MySpace post was not private. But what about a copyright claim?

Normally the "damages" for unauthorized copying of a MySpace post would be so close to zero, that a moral victory in court is all you could get. But if her father's business lost so much money that it had to close, could the family sue for those losses resulting from the copyright infringement?

It is perhaps indicative of the mathematician/programmer mindset, that after reading about a school principal downloading a rant form a former student's MySpace page and arranging with a friend to "out" her in the town newspaper, the first thing that popped into my head was: "copyright infringement." But copyright law has a nice binary, one-or-zero, they-did-it-or-they-didn't quality that resonates with left-brainers. As several lawyers said to me while I was asking them questions for this story, the girl would probably have a better claim for "intentional infliction of emotional distress" and for "false light publicity" — but those rights of action are more nebulous concepts in law, and the trial outcome would depend more on the judge's personal opinions and on the history of similar rulings in the state. Copyright law is, at least in theory, standardized in federal law and laid out in black and white, so that even non-lawyers have a chance of understanding it. But I still wanted to ask some lawyers for their opinions.

This started for me as an investigation of copyright law as it applied to these situations. (I personally know a few people whose content has been reused on other people's websites or e-mail lists with varying degrees of legality, and I'd like to be better informed about what to tell them.) But it ended up becoming a case study in how to interpret conflicting opinions from different lawyers.

There were some notions that I had completely wrong about copyright law, and the lawyers that I queried pointed those out unanimously. On the other hand, there are some questions where the legal community is divided on the correct answer, and you might pick one answer and a lawyer with the opposite point of view would tell you you were "wrong," when a different lawyer might tell you that you were "right." Whenever lawyers tell me something, and especially if they tell me that I should listen to them because they're a lawyer and I'm not, I always ask the same thing: If I were to ask this question of 10 different lawyers, would at least 8 out of them of them agree? If the answer is No, then — while each lawyer is still be entitled to their opinion, it is just an opinion, not a settled fact within the profession. In fact, I wouldn't even trust the results if I asked 10 lawyers who were all in the same room; my general impression is that when I ask lawyers a question who are in the room together, they agree more frequently than if I ask them a similar question separately, perhaps consciously or subconsciously out of a desire to make it look as if the "expert consensus" is stronger than it really is. The fairest test would be to ask 10 lawyers separately and compare their answers.

So, I posted a notice to Peter Shankman's Help A Reporter Out service, asking for legal experts to comment on the copyright issue. HARO is a nifty way to get your name in print once in a while if you're an expert on any subject; you can sign up for the mailing list as a "source," and then reporters send queries to HARO that are redistributed to the mailing list asking for experts on a particular subject. (The very first day after I signed up last September, I got featured as a "web filtering expert" in an article in an adult industry trade magazine, whereupon I'm sure my mother sent the link to all of her friends right away.) But I was interested in using it in a different way from most reporters. Usually, reporters posting a query are looking for multiple expert opinions that they can synthesize into a consensus answer for their story. I was posting my query to find out whether any consensus even existed.

The questions I put to the HARO list were: Could the girl bring a lawsuit against the paper for violating her copyright? Is it something she could even do in Small claims court to save time and money? And as for damages, I knew that in cases of copyright violations for works not registered with the Copyright Office, plaintiffs were usually limited to actual damages. But could she claim the losses to her family's business as "actual damages," since the harm was caused as a result of the copyright violation?

Before reading any further, you might want to consider how you would answer these questions. Then you can see whether your answers agree with those given by the experts.

Pencils down. First, the things that all lawyers agreed I got completely wrong:

• Virtually every lawyer who responded said that you could only bring copyright claims in federal court. This advice passed the 8-out-of-10 test, as well it might, since this rule is laid out in the U.S. Code.
• Second, to bring a copyright claim at all, you first have to register your work with the Copyright Office by mailing it to them with a $35 fee. (There was some inconsistency in the answers here, but the consensus seems to be: You own the copyright on something as soon as you create it, but you can't file a copyright lawsuit until after you've registered your work. However, once you've registered, you can then go back and sue for copyright violations that took place before the registration date. If you register more than 90 days after the date of first publication, you can only sue for actual damages — your monetary losses, or the infringer's ill-gotten gains — for violations that took place before you registered the work. But if you register within 90 days of first publication, you can sue for statutory damages and attorney's fees, even for violations that took place before you registered.)
• Third: Suppose the court did find that the girl's copyright was violated. Can the harm to her father's business be counted under actual damages? Well, first there is the issue of whether she can consider these as damages at all, since they were to her father's business, not to her. As I put it to Paul MacArthur, Professor of Journalism and Public Relations at Utica College: If X violates the rights of Y but the bulk of the harm is done to Z, can Y sue, even though they weren't the main victim? Professor MacArthur, said: "Generally, no. But, perhaps, because it impacts her family's income, she can claim a loss."
  
  But the real difference is that harm indirectly resulting from the copyright infringement is not legally the same as actual damages, and here's where the different experts agreed. Said one legal expert who asked not to be identified by name:

  "In the fact pattern for this case, you have to know that the damage to the family is considered 'consequential' or 'indirect' damages - not actual damages. In a copyright suit, actual damages are the financial losses incurred as a result of lost profit from your work."

  Joshua King, an attorney with Avvo.com, a site that provides attorney ratings and other services to help consumers navigate the legal profession, agreed: "Even if a court were to consider the father's lost business, those damages would be considered consequential damages." Three other lawyers who responded all said essentially the same thing.

So those were the points where the lawyers agreed. But what about a fair use defense? From years of reading Copyright FAQs, you probably know that the fair use doctrine allows third parties to use portions of a copyrighted work without the copyright owner's permission under some circumstances. As Mike Plumleigh, an intellectual property lawyer in California summarized it for me, the four factors that determine whether a use qualifies as fair use are:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Although, whenever I read a law or legal text earnestly claiming that such-and-such depends on this other list of factors, it seems ironic that the list is intended to "clarify" the meaning of the law, when the list items are often just as open to ambiguous interpretation as the original item they were intended to clarify. The acid test of whether a rule has been "clarified" is how much experts agree on how to interpret the rule in a given situation; if experts can't agree to interpret it, then it's no more "clear" than it was before.

That seemed to be the case in this instance, where I got a lot of conflicting answers from the attorneys who responded. Joshua King said: "The newspaper may well have a fair use defense even though they published the whole thing." Mike Plumleigh agreed with the likelihood of the "fair use" defense and gave a longer explanation (referring to his numbered list above):

"Not to go into detail of how a court might rule on the analysis, but here's my quick take:

• Under (1), the use could be found to be for criticism, comment and (by the paper) news reporting (and the cases also consider 1st amendment factors under this one)
• Under (2) and (4) the original work was not intended for commercial purposes, had little apparent market value, and is more a short statement of fact/opinion rather than having significant creative or other "authorship" elements.
• Under (3), all of the "work" seems to have been reproduced, but this factor would likely be outweighed by the others.

I haven't seen the published letter or the original journal post, so my analysis above might be somewhat different if what was copied was a longer essay about life in Coalinga or similar. Nonetheless, the market value/effect would still be an issue, and the criticism/commentary purposes could still tip in favor of fair use."

Venkat Balasubramani, a Seattle copyright attorney, cast a vote-with-caveats for the fair use defense as well:

Fair use is always tough to predict and fact-intensive. On the one hand, there's little commercial value in the letter. Also, the fact that she published the letter in MySpace may itself be newsworthy and the newspaper is entitled to publish at least portions of the letter. Overall, her copyright claims are weak, damages minimal, and the newspaper's fair use arguments fairly strong. (Caveat again the fair-use is fact-intensive.)

In the other corner, Phil Marcus, a negotiation and intellectual property lawyer in Baltimore, commented, "I do not think 'fair use' includes using a person's words to get them run out of town." Professor MacArthur said, "There is no way what the paper's use of the student's writings qualifies as fair use." I asked if the other factors wouldn't weigh in favor of the newspaper, since there was no apparently commercial market for the essay, but Professor MacArthur disagreed:

"The nature of the copyrighted work as a temporarily published work that the girl choose to pull off of her MySpace page. She has the right to remove her writings from her MySpace page and no one has the right to continue to distribute those writings in their entirety without her consent. So, number 2 is her favor (really, issue number two looks more at non-published vs. published, with non-published being afforded more protection).

In terms of number 4, the claim could be made the that there is an impact on the market. These are her personal writings. Perhaps, in the future, she wants to put them on her own web site and make a profit via Google's AdSense or via a pay for content web site. The newspaper, by publishing her writings, may have lessened her ability to charge for this piece/monetize it. I'm not saying she is going to do this, but this issue is something for a judge/jury to decide."

Stephen Roe, an attorney with Lathrop Clark in Virginia, was even-handed but leaning against fair use:

"Were she to sue for copyright infringement, I think the court would be faced with a difficult decision. Were I defending the newspaper and principal, I would certainly assert fair use, in that the purpose was for news reporting and comment and criticism. However, they would appear to have a problem, in that the girl's letter was not submitted BY HER as a letter to the editor, and thus was falsely attributed to her as a letter to the editor... A court may be willing to find that the principal and the paper were NOT within the fair use safe harbor, especially if she could establish ill intent. Were I hearing the case, I would be very sympathetic to her situation, especially given the relationship between the principal and the editor and the apparent mis-attribution."

So, three votes on either side. I myself would probably argue on the side of the fair use defense against a pure copyright violation, because the girl was not selling her work, and the principal was trying to convey the fact of the girl's dislike for Coalinga (which is inappropriate conduct for a high school principal, but not against the law).

I think the lesson here is that even though many Internet copyright controversies depend on what is protected under "fair use," that is much less clearly defined than one might hope. If someone blatantly lifts content from your home page and posts it on their own website for commercial gain, that's a copyright violation, but what if they only post excerpts for the purpose of "commenting" on it? What if you posted something snarky on your blog, and later took it down, but someone else archived a copy on their blog in order to show the world what a dick they thought you were? You may not know offhand whether these actions are protected under "fair use," but it would be nice to think that the answer exists, and that a lawyer could steer you towards it. No such luck in some situations.

Or, perhaps the more general lesson is that when seeking advice from lawyers, it's worth getting multiple opinions. Sometimes if a lawyer tells you, "I'm sure that I'm right about this, because I'm a lawyer," they really are right, as in several of the points above where they set me straight. But not always. And the way to find out is to ask four or five different lawyers and see what they say. I'm a member of a cheap legal insurance plan ($20/month) that entitles to me to call "in-network" lawyers for a few minutes of advice each on a given legal question. The provider probably thinks of this as a cheapo option for people who can't afford real legal consultations, but I think that 10 minutes of advice from 6 different lawyers, is enormously more valuable than one hour of advice from one lawyer, because then you can categorize their advice into things they agree on (which are likely to reflect "the law") and things they don't agree on (which are likely to be just their opinions).

If more legal debaters recognized this distinction, perhaps many bitter legal disputes outside the courtroom could be resolved by agreeing to disagree. Prior to a court ruling, "the law" is just defined as the consensus among legal experts on how to interpret a statute. So if experts are divided on a given question, then by definition there is no consensus and hence no "law," so what are they arguing about?

An anonymous reader writes "For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering and evasion of Digital Rights Management (DRM) schemes protecting all kinds of digital works and electronic items. Judging from the list of 20 exemptions requested this year [19 shown], some in the cyber-law community are thinking big. The requests include the right to legally jailbreak iPhones in order to use third party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse engineer video games with security flaws that put end-users at risk." Reader MistaE provides some more specific links to PDF versions: "Among the exemption proposals is a request from the Harvard Cyberlaw Clinic to allow circumvention of DRM protection when the central authorization server goes down, a request from the EFF to allow circumvention to install third party programs on phones, as well as a request for ripping DVDs for non-commercial purposes. There were also several narrow requests from educational institutions to rip DVDs for classroom practices."

An anonymous reader writes "For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering and evasion of Digital Rights Management (DRM) schemes protecting all kinds of digital works and electronic items. Judging from the list of 20 exemptions requested this year [19 shown], some in the cyber-law community are thinking big. The requests include the right to legally jailbreak iPhones in order to use third party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse engineer video games with security flaws that put end-users at risk." Reader MistaE provides some more specific links to PDF versions: "Among the exemption proposals is a request from the Harvard Cyberlaw Clinic to allow circumvention of DRM protection when the central authorization server goes down, a request from the EFF to allow circumvention to install third party programs on phones, as well as a request for ripping DVDs for non-commercial purposes. There were also several narrow requests from educational institutions to rip DVDs for classroom practices."

An anonymous reader writes "For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering and evasion of Digital Rights Management (DRM) schemes protecting all kinds of digital works and electronic items. Judging from the list of 20 exemptions requested this year [19 shown], some in the cyber-law community are thinking big. The requests include the right to legally jailbreak iPhones in order to use third party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse engineer video games with security flaws that put end-users at risk." Reader MistaE provides some more specific links to PDF versions: "Among the exemption proposals is a request from the Harvard Cyberlaw Clinic to allow circumvention of DRM protection when the central authorization server goes down, a request from the EFF to allow circumvention to install third party programs on phones, as well as a request for ripping DVDs for non-commercial purposes. There were also several narrow requests from educational institutions to rip DVDs for classroom practices."

An anonymous reader writes "For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering and evasion of Digital Rights Management (DRM) schemes protecting all kinds of digital works and electronic items. Judging from the list of 20 exemptions requested this year [19 shown], some in the cyber-law community are thinking big. The requests include the right to legally jailbreak iPhones in order to use third party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse engineer video games with security flaws that put end-users at risk." Reader MistaE provides some more specific links to PDF versions: "Among the exemption proposals is a request from the Harvard Cyberlaw Clinic to allow circumvention of DRM protection when the central authorization server goes down, a request from the EFF to allow circumvention to install third party programs on phones, as well as a request for ripping DVDs for non-commercial purposes. There were also several narrow requests from educational institutions to rip DVDs for classroom practices."

An anonymous reader writes "For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering and evasion of Digital Rights Management (DRM) schemes protecting all kinds of digital works and electronic items. Judging from the list of 20 exemptions requested this year [19 shown], some in the cyber-law community are thinking big. The requests include the right to legally jailbreak iPhones in order to use third party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse engineer video games with security flaws that put end-users at risk." Reader MistaE provides some more specific links to PDF versions: "Among the exemption proposals is a request from the Harvard Cyberlaw Clinic to allow circumvention of DRM protection when the central authorization server goes down, a request from the EFF to allow circumvention to install third party programs on phones, as well as a request for ripping DVDs for non-commercial purposes. There were also several narrow requests from educational institutions to rip DVDs for classroom practices."

An anonymous reader writes "For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering and evasion of Digital Rights Management (DRM) schemes protecting all kinds of digital works and electronic items. Judging from the list of 20 exemptions requested this year [19 shown], some in the cyber-law community are thinking big. The requests include the right to legally jailbreak iPhones in order to use third party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse engineer video games with security flaws that put end-users at risk." Reader MistaE provides some more specific links to PDF versions: "Among the exemption proposals is a request from the Harvard Cyberlaw Clinic to allow circumvention of DRM protection when the central authorization server goes down, a request from the EFF to allow circumvention to install third party programs on phones, as well as a request for ripping DVDs for non-commercial purposes. There were also several narrow requests from educational institutions to rip DVDs for classroom practices."

mattOzan writes "On the tenth anniversary of the Digital Millennium Copyright Act [PDF], Wired Magazine posits that the DMCA should be praised for catalyzing the interactive '2.0' Web that we enjoy today. While acknowledging the troublesome 'anti-circumvention' provision of the act, they claim that any harm caused by that is far outweighed by the act's "notice-and-takedown" provision and the safe harbor that this provides to intermediary ISPs. Fritz Attaway, policy adviser for the MPAA weighed in saying 'It's not perfect. But it's better than nothing.'"

jvillain writes "Contentagenda notes that the Copyright Office is taking submissions for exemptions to the DMCA. They do this every three years. There's a description of the six exemptions made last time to give you some ideas. So fire up the keyboard and let the Copyright Office know what needs to be changed. If you don't get in now, it'll be another three years before you can try again."

NewYorkCountryLawyer writes "A California copyright infringement case brought by an adult video maker against a video sharing web site, Veoh Networks, has been thrown out, based upon the 'safe harbor' provision of the Digital Millennium Copyright Act ('DMCA'). In a 33-page decision (PDF), the Court concluded that Veoh was covered by the DMCA, and had carried out its duties to comply with takedown notices in a reasonable manner. The Court rejected the plaintiff's arguments showing possible ways that users could do an end-around, saying that the law requires 'reasonable' compliance, rather than perfection, and noted that the DMCA is 'designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age'."

Boggle Addict writes "Rather than participating in the online gaming market, Hasbro is suppressing it with litigation. Scrabulous, a Scrabble imitation, is already fighting to prevent being shut down. Today, Hasbro sent out DMCA notices to other apps on Facebook, including Bogglific, a Boggle imitation. Copyright law has has always held very limited protections for games. This may be opening a can of worms for Hasbro.

Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

jeh0bu writes "The Section 108 Study Group, a group of copyright experts, has been meeting to discuss Section 108 of the U.S. Copyright Law. It is focusing on preservation of websites and access to digital copies of library materials. Representatives of Internet Archive, including Brewster Kahle, went to the group's public roundtable sessions in March. Google did not register to attend the roundtable sessions even though the findings of the Section 108 Study Group may impact Google's Library Project. The Section 108 Study Group seeks written comments through April 17, 2006, according to this Federal Register notice."

jbarr writes "An EFF Article states that: 'A district court in Nevada has ruled that the Google Cache is a fair use ... the Google Cache feature does not violate copyright law.' Notable is the basis that 'The Google Cache qualifies for the DMCA's 512(b) caching 'safe harbor' for online service providers.'" From the article: "The district court found that Mr. Field 'attempted to manufacture a claim for copyright infringement against Google in hopes of making money from Google's standard [caching] practice.' Google responded that its Google Cache feature, which allows Google users to link to an archival copy of websites indexed by Google, does not violate copyright law."

ahknight writes "The United States Copyright office begins its required review of the effects of the anti-circumvention portions of the Digital Millenium Copyright Act on November 2nd. This review period lasts until December 1, 2005. They will be accepting your well-thought-out opinions on the web and by mail. If you're reasonably ticked that you can't legally get around encrypted files to get at the media you've bought, start writing a coherent stance for the USCO today."

ahknight writes "The United States Copyright office begins its required review of the effects of the anti-circumvention portions of the Digital Millenium Copyright Act on November 2nd. This review period lasts until December 1, 2005. They will be accepting your well-thought-out opinions on the web and by mail. If you're reasonably ticked that you can't legally get around encrypted files to get at the media you've bought, start writing a coherent stance for the USCO today."

rubberbando writes "Wired is running a story about how the US Copyright Office is looking for input about a law that will allow some media to be legally cracked. This is aimed at certain uses such as cracking an ebook so that a blind person can use reading software with it and older software that requires a hardware dongle that no longer works." From the article: "The DMCA forbids cracking of copy-protected or encrypted digital media, with certain exceptions. When the law was passed, Congress mandated the register of copyrights revisit the anti-circumvention section every three years to make sure consumers have proper access to materials they purchased -- even if content creators have them locked down. If the copyright office finds instances where copy protection prevents fair use of the work, then those copy protections can be legally circumvented." We reported on the other side of the coin yesterday.

wikinerd writes "The United States Copyright Office asks whether you would have any problem if you were required to use Microsoft Internet Explorer in order to pre-register a work via their website. The Norwegian government recently said no to proprietary formats, but it seems that the US government sites should be informed about the existence of non-Microsoft Web browsers, such as Firefox, Konqueror, Opera, and Safari. I have written a letter about this issue, which is posted on my blog for everyone to copy and base on it their own response. If they see how many people use alternative browsers, they'll probably reconsider and stay within the W3C standards."

wikinerd writes "The United States Copyright Office asks whether you would have any problem if you were required to use Microsoft Internet Explorer in order to pre-register a work via their website. The Norwegian government recently said no to proprietary formats, but it seems that the US government sites should be informed about the existence of non-Microsoft Web browsers, such as Firefox, Konqueror, Opera, and Safari. I have written a letter about this issue, which is posted on my blog for everyone to copy and base on it their own response. If they see how many people use alternative browsers, they'll probably reconsider and stay within the W3C standards."

richardtallent writes "Tim Bray caught that the United States Copyright Office's upcoming copyright pre-registration web application apparently only works with Internet Explorer, and they are seeking written comments from anyone who might have a problem being forced to use IE. Slashdotters, start your snail-mail."

Joe Decker writes "Thomas Knoll, creator of Adobe Photoshop, blasts Nikon's use of encryption to limit access to white-balance information contained in D2X RAW images files. Fearing the DMCA, Adobe won't reverse-engineer the file, slightly reducing Photoshop's support for those files. Nikon responds. Is Adobe whining? Is Nikon shooting itself in the foot?" We've covered this previously.

psychonaut writes "As previously reported on Slashdot, the US Copyright Office is currently reviewing the law as it applies to "orphan works" and "abandonware". The question is how to treat works (books, films, software, etc.) for which the copyright owner cannot be found so that permission can be granted to republish or create derivative works. "The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work," they write, "it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be." The Copyright Office has been soliciting comments from the public since 26 January 2005. Now, as their 25 March deadline draws nearer, the EFF, along with freeculture.org and Public Knowledge, have teamed up to produce a website,Orphan Works, which gives some background on the issue and makes it easy to submit comments directly to the Copyright Office." And while you're at, contribute to the EFF. Good organization.

psychonaut writes "As previously reported on Slashdot, the US Copyright Office is currently reviewing the law as it applies to "orphan works" and "abandonware". The question is how to treat works (books, films, software, etc.) for which the copyright owner cannot be found so that permission can be granted to republish or create derivative works. "The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work," they write, "it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be." The Copyright Office has been soliciting comments from the public since 26 January 2005. Now, as their 25 March deadline draws nearer, the EFF, along with freeculture.org and Public Knowledge, have teamed up to produce a website,Orphan Works, which gives some background on the issue and makes it easy to submit comments directly to the Copyright Office." And while you're at, contribute to the EFF. Good organization.

InklingBooks writes "In the late 1990s, when Hollywood paid an all-too-willing Congress to extend copyright terms to 90 years, an existing problem grew much worse. Many out-of-print books, including some SciFi classics, became orphans. Though still "protected" by copyright, there was no one around who could give legal permission to publish them. Their author were dead, and it was expensive and often impossible to find out who (if anyone) now owned their literary estates. Fortunately, the Copyright Office is now taking comments on how the law might be changed. See Orphan Works."

Slashback tonight brings you word on the less-spectacular-than-advertised solar storm earlier in the week, Mandrake's response (a good one) to the problems their new release had with LG brand CD drives, more Diebold madness, and more, including a lengthy rebuttal to Slashdot's review of Eclipse in Action. Read on for the details, and check your costume in the mirror before leaving the house.

Copies files in under 17 minutes, I bet. Eug writes "The latest supercomputer list (Oct. 26) has Apple/VT's G5 Power Mac cluster at 9555 Gflops/s, which puts it into third place overall. This list is hosted here. This new score is interesting for a number of reasons, besides placing them in third place:

1. It is now ahead of the 1.5 GHz Itanium 2 cluster, which is composed of 1936 CPUs and which achieves 8633 Gflops/s.
2. On a per CPU basis, the G5 2.0 is also ahead of the Itanium 2. The G5 2.0 scores 4.52 Gflops/s per CPU, while the Itanium 2 1.5 scores 4.46 Gflops/s per CPU.
3. If one extrapolates from the score of NetworX's Xeon 2.4 cluster (2304 CPUs at 7623 Tflops/s), a G5 2.0 would be as fast as a Xeon 3.28 GHz.
4. Efficiency of the G5 clusters is now at 57%, which is considerably higher than the IBM POWER4 clusters in the top twenty. (The G5 is a derivative of the POWER4.)
5. Virginia Tech's cluster is now in shouting distance of 10 Teraflops/s, and there are still a few weeks left to optimize the system. (They've gained over 2 Teraflops/s in the last 2 weeks.
6. They have utilized only 2112 CPUs (1056 dual Power Macs), despite having supposedly purchased 2200."

eGovOS 3 cancelled due to EC funding withdrawal jaruz writes "Due to the unexpected withdrawal of EC funding for the eGovOS conference from the University of Maastricht's MERIT's FLOSSPOLS EC contract, the conference is now cancelled."

I prefer conspiracy theories, myself. MyNameIsFred writes "Slashdot recently discussed White House Website Limits Iraq-Related Crawling. It turns out The Dead Parrot Society got an explanation for their behavior. They used the unprecedented approach of asking someone at the White House. White House spokesman Jimmy Orr stated the blocking of search engines is not an attempt to ensure future revisions will remain undetected. Rather, he explained, they "have an Iraq section [of the website] with a different template than the main site." Thus, for example, a press release on a meeting between President Bush and Special Envoy Bremer is available in the Iraq template (blocked from being indexed by search engines) or the normal White House template (available for indexing by search engines). The attempt, Mr. Orr said, was that when people search, they should not get multiple copies of the same information. It was also reported that the White House recently asked the The Internet Archive to do a thorough scan of everything on its website."

My dad can beat up your burst of solar radiation. Earth survives solar storm. kurth writes "A major solar flare unleashed Tuesday punished Earth's protective magnetic field early Wednesday, but the planet and its high-tech communication systems appear to have weathered the worst of the storm."

eggfellow writes "here's an article in the WashPost about the geomagnetic storm that pounded Earth (with little disruption) [Tuesday]. What I want to know is why the predicted pounding-time was 12 hours later than actual. Can't these scientist do their math?"

Sounds like a nice feature. News.OSDir.com is reporting that Mandrake is re-releasing it's 9.2 ISOs and CDs after the unfortunate LG CD drive incident earlier this week. "The problem was that the kernel would send a FLUSH_CACHE command to the LG CD-ROM drive which would make the drive inoperable by overwriting its firmware....A new kernel (2.4.22-21mdk) has been released that fixes this problem in the kernel, although the CD-ROM devices are still not up to specification. New CDs and ISOs will be available shortly to correct these problems; they will come with the new kernel."

Maybe they should stick with safes and such. The work of the Swarthmore rebels is paying dividends, (they now have 17 mirrors of the Diebold memos set up). Meanwhile Scoop is reporting how one of the memos deals with an incident in which a single memory card from a precinct of just 600 voters managed to subtract 16022 votes from Al Gore in Florida, nearly lead to his concession of presidency. You can read more about this in Bev Harris's "Black Bov Voting" Chapter11 (PDF) also available here & here."

More on the Diebold front: cananian writes "Two students at MIT (I'm one of them) received cease-and-desist letters from Diebold today for mirroring Diebold's incriminating internal memos, which reveal (among other things) -16,000 votes being credited to Gore in Florida in the 2000 presidential election, how the vote could have been rigged by changing the audit logs or creating a manager card, etc. Students at Amherst also received cease-and-desist letters today. Diebold claims we are infringing its copyrights, but there is good precedent for the legality of the publication. The EFF has in is support: "Wendy Seltzer, an attorney for the Electronic Frontier Foundation [...] encouraged them to defy the Diebold cease-and-desist letters.""

... because making text cross-platform is Unamerican. David H. Rothman writes "Convert Lit, the program that lets you crack Microsoft Reader to make backups as part of Fair Use, has moved to a Polish host to escape the tyrannies of the new EU-style DMCAism in the United Kingdom and elsewhere. Meanwhile, in the wake of a new Copyright Office ruling on the DMCA, lawyer Robin Gross at IP Justice warns not to think that the DMCA peril has passed."

But how do you really feel? In reaction to our ealier review of Eclipse in Action, wobbet writes "I've started using Eclipse at work and consistently feel that there is more sophistication and power hiding underneath the obvious and wanted a book that would help me find and fine tune the goodies under the covers. I read a previous review of this book on Slashdot that prompted my purchase. If that review had not been as positive I probably would not have been so disappointed and moved to post my own review.

When I read a technical book I ask myself how well it stays on topic, how thoroughly it addresses the topic and whether it meets my expectations. In this instance I find that the book stays on topic about half of the time and that it is thorough about half of the time. Unfortunately that half of the time I really didn't care about and thereofre my expectations were unmet. To be honest - after reading the book and then re-reading the back cover I should have not even purchased the book because the objectives set forth on the back cover would have warned me that this book was not what I was looking for.

I found the first half of the book to be simply horrible. A supposed introduction to actually using Eclipse this section concentrates more on the "Agile" toolset that all competent, well-informed Java developers that care about the quality of their code, products and development process should already be using. Well, that's what all the books say anyway.

If I wanted a book on Agile tools for Java developers I would purchase Java Tools For Extreme Programming . Is it a great book? No, but it is honest about what it is - a survey of tools. Despite what Mr. Chappell says about Eclipse In Action, I did not find the authors' "...TDD evangelism, skillfully disguised as Eclipse usage instruction. ." Instead I found the first half of the book to be TDD Evangelism thinly disguised as poor Eclipse usage instructions. I did not learn a single thing about USING Eclipse that I hadn't already figured out from randomly selecting menu items over the past two months.

The second half of the book seemed to be a decent introduction to the development of Eclipse plug-ins. If I cared I probably would have found it interesting in its discussion of the API, the perspectives, views and even editors. Those of you that do care may find the second half of the book to be worth skipping the first half of the book."

MrNerdHair writes "The Librarian of Congress has posted a list of exemptions from the DMCA (also obtainable in PDF here.) Works falling in four 'classes' may be considered exempt from Section 1201 of the DMCA's prohibition against 'circumvention of a technological measure which effectively controls access to a work.' Among the list are blacklists of sites used in programs such as NetNanny and cracks to bypass dongles on abandonware. All in all, a very interesting read ..." Not just interesting: as Robin Gross writes, "Unfortunately, the ruling leaves the vast majority of consumers unable to access their own property, such as skipping commercials on DVDs, playing CDs in their PCs, and reading eBooks on PDA's without violating the DMCA." Update: 10/29 15:19 GMT by T : Take a look at Seth Finkelstein's site for an idea of how being pushy can sometimes be helpful; Finkelstein has loudly pushed for the importance of DMCA exemptions, including in Congressional testimony.

MrNerdHair writes "The Librarian of Congress has posted a list of exemptions from the DMCA (also obtainable in PDF here.) Works falling in four 'classes' may be considered exempt from Section 1201 of the DMCA's prohibition against 'circumvention of a technological measure which effectively controls access to a work.' Among the list are blacklists of sites used in programs such as NetNanny and cracks to bypass dongles on abandonware. All in all, a very interesting read ..." Not just interesting: as Robin Gross writes, "Unfortunately, the ruling leaves the vast majority of consumers unable to access their own property, such as skipping commercials on DVDs, playing CDs in their PCs, and reading eBooks on PDA's without violating the DMCA." Update: 10/29 15:19 GMT by T : Take a look at Seth Finkelstein's site for an idea of how being pushy can sometimes be helpful; Finkelstein has loudly pushed for the importance of DMCA exemptions, including in Congressional testimony.

These answers are from the lawyers in the U.S. DoJ's Computer Crime and Intellectual Property Section (CCIPS) -- the people who prosecute criminal file-sharing cases. Michael O'Leary, Deputy Chief for Intellectual Property at the DoJ, submitted the answers, but other lawyers in the section worked with him to write them, all under the ground rules laid out in our 'Meet the DoJ's 'Anti-Piracy' Lawyers post last week.

INTRODUCTORY COMMENTS

Thank you all for posing such interesting questions. We have answered nine of the ten submitted questions below, but we are not in a position to answer number ten because it is specifically related to a civil case (that does not involve the Department of Justice). However, in an effort to give you your money's worth, we have answered two additional questions which you posed in the comments accompanying the original interview, but were not submitted to us by the Slashdot moderators.

1) What services for an open source copyright holder - by bwt
First, thank you doing this interview. Most people here take IP very seriously and want laws and law enforcement that do what the Constitution intended.

Contrary to what many lay-people believe, open source software relies (heavily) on copyright and the legal system that assures those rights. In fact, among Slashdot readers are a large number of people who own copyrights to open source software. My question is what services your organization offers in practice to "real people". Our community creates software whose quality competes with that of multi-billion dollar corporations, so we clearly have a significant interest in having our own rights as authors protected. We all have no doubt that if Jack Valenti finds a website selling pirated versions of his movies that law enforcement will descend upon the infringer with a fury comparable to that wielded against drug smugglers and violent criminals.

Few among us would really object to enforcing the law against such a clear violation, however, I cannot help but wonder if there is equity in the system. I wonder whether an individual author's rights as a copyright owner would be similary protected? For example, if substantial quantities of code that one of us has written ends up in a company's product in a way that clearly violates the terms of an open source licence, how would the infringed copyright holder go about seeking your services?

What policy governs your decision whether or not to act on behalf of a copyright owner when a complaint is raised? What assures that the heavy hand of the law protects an individual's rights with the same fury that it defends those of the RIAA or a major software corporation?

O'Leary:
Thanks for your question. The issues you raise are ones that we confront from time to time and we welcome the chance to address them here on Slashdot. In reviewing your question, and many that follow, it appears that some Slashdot readers feel that the Department of Justice only protects the IP rights of big corporations. That simply isn t the case. There is no doubt that large multi-national corporations are often victimized by piracy due in some measure to the popularity and pervasiveness of their products. But at the same time, there are also many others who are victimized, such as small mom and pop operations, and young developers trying to break into a crowded and competitive market. I imagine many Slashdot regulars fall into these categories.

In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).

The prosecutions we undertake do in fact benefit real people. If you look at the people and organizations who have been victimized by the defendants we prosecute, you will see that we enforce the law without regard to who the victims may be and we have protected the rights of victim companies of all sizes.

In one recent case, for example, we prosecuted individuals for pirating a significant amount of high-end application software. There were literally hundreds of victim companies, the vast majority of which were not large corporations. One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further. The earnings of small operations like this are all put back into the business, to defray research and development costs and support further development. They do not have the resources to employ investigators to track pirates or lawyers to vindicate their rights civilly. They simply have an idea and a product a product which was, in this case, pirated and distributed around the world.

In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations. As for reporting potential criminal infringement to law enforcement, the best way to do that is to contact your local FBI office.

2) This won't be taken seriously, but... - by Maul
.... I find it extremely hard to believe that your division truthfully represents the "people" of this country. It seems that your job is to help mega-corporations make "examples" out of college students and others who are too poor to defend themselves.

Yes, sharing copyrighted music and films is a crime. However, I see no justification for the insane penalties associated with file sharing and priacy. It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.

Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?

O'Leary:
Before answering your underlying question, which we do take seriously, let me address what has become a common misconception. The recent cases involving college students were civil suits brought by private parties, such as the Recording Industry Association of America (RIAA). The Department of Justice is not a party to these suits. We enforce our federal intellectual property laws through criminal prosecution, not through civil suits.

Your question argues that the current sentencing structure for criminal intellectual property crimes is too severe and is based upon damage amounts that cannot be supported. First, note that the federal sentencing structure is established by Congress and the United States Sentencing Commission. As federal prosecutors, we work within these guidelines. Second, the sentencing guidelines reflect the serious harm that is caused by piracy. In our answer to the first question above, we gave just one example of a small developer who has been harmed by piracy. That situation is not unique. The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Further, deterrence is a significant element in criminal sentencing not just in IP crimes, but in all crimes. Until recently, many people believed that piracy was a consequence-free activity and that it did not harm anyone. The sentences that have been handed down in recent prosecutions have begun to change that impression, and will deter others from engaging in similar conduct.

By statute, a person convicted of one felony count of copyright infringement faces up to 5 years in prison (or 3 years, if convicted under the NET Act when the piracy was not done for commercial advantage or private financial gain). However, there are a number of factors that determine the actual criminal sentence a defendant receives, including the volume and retail value of pirated material involved, whether the defendant uploaded material to the Internet, and whether the defendant had a leadership role in a larger criminal organization. Also, a defendant's sentence may be reduced if, for example, he had a minor role in the criminal operation, or he accepts responsibility for his illegal conduct.

The single biggest factor in determining a sentence under the U.S. Sentencing Guidelines is the infringement amount attributable to the defendant. While your question correctly notes this, please understand that neither industry nor the government has the ability to dictate this amount. In determining the amount of damage, the United States must provide evidence of the number and value of the copyrighted works infringed by the defendant to the Probation Office and the court prior to sentencing. The United States must provide evidence to support its position such as evidence of the value of the pirated works infringed by the defendant, the number of times the pirated works were reproduced or distributed, or, in some instances, the amount of money the defendant earned from his illegal activity. At the same time, the defendant may introduce evidence to establish what he believes is the appropriate valuation for sentencing purposes. Neither the U.S. Probation Office, which ultimately recommends a sentencing range to the court in what is known as a pre-sentence report, nor the sentencing judge is bound by the government's claimed damage amount. The government's recommendation for a particular sentence is subject to multiple checks and balances. It is not simply the by-product of numbers offered by industry. We have to support and defend our position in a court of law which is the way it should be.

Finally, while people convicted of intellectual property crimes do face serious consequences for their actions, they are not treated more severely than violent criminals such as rapists. The vast majority of prosecutions of violent criminals take place at the state and local level, not the federal level, which is where DOJ s jurisdiction lies. However, in those instances where there are federal violent crimes, the penalties are more severe than those imposed for copyright infringement. For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

3) Question regarding the DMCA and copyright terms - by rhadamanthus
If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?

O'Leary:
I don t believe that the CBDTPA is under consideration in the current Congress, nor are we aware of other pending bills that would mandate the use of digital rights management systems. However, your question seems more focused on the DMCA, specifically the portions of the DMCA that govern anti-circumvention technologies, i.e. Section 1201 of Title 18. For purposes of answering this question, the term DMCA refers specifically to Section 1201.

The DMCA prohibits trafficking (which includes manufacture, sale, distribution, importation, etc.) in tools (i.e., technologies, products, services, devices, etc.) that:

(a) are primarily designed to circumvent,

(b) are primarily marketed for use in circumventing, or

(c) have limited commercially significant purpose or use other than circumventing,

either one of the following:

(1) a technological measure that effectively controls access to a work protected under this title [i.e., the Copyright Act] (see 18 U.S.C. Section) 1201(a)(2); or

(2) a technological measure that effectively protects a right of a copyright holder under this title (see Section 1201(b(1)).

The first type of control above will be referred to as an access control, the second as a copy control. In addition to the restrictions on trafficking, the DMCA also prohibits actual circumvention of access controls (see Sec. 1201(a)).

The DMCA s main purpose is to help protect the rights of copyright holders. However, the DMCA was also designed in part to protect and preserve the rights of people who use copyrighted works. First, the DMCA expressly states that it is not intended to affect limitations on copyright or defenses to infringement such as fair use. Second, the DMCA contains a number of exceptions and exemptions that, for example, allow in some circumstances reverse engineering, encryption research, and certain actions by libraries and certain educational institutions. Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls. As the district court in the Elcom case noted, Congress omitted a prohibition against circumventing copy controls specifically so that users could engage in fair use (and, presumably, to use works that enter the public domain). (See U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111, 1020 (N.D.Cal. 2002)).

Your question deals with how the DMCA might affect works that have entered the public domain. As you know, copyright law grants copyright holders certain exclusive rights, such as the right to copy and distribute their work for a period of time. Currently, the length of the copyright term is the life of the author plus 70 years; for works made for hire, it is 95 years from first publication or 120 years from creation of the work (whichever comes first). After this term expires, works enter the public domain and are presumably available in some form that can be read, viewed, heard, etc., by the public.

While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them.

We have not encountered any criminal case that involved this specific issue. Indeed, we are not aware of a court case either civil or criminal that has addressed this issue directly (although the district court in the Remeirdes case - the 2600 magazine case - acknowledged this issue, but because it was not central to the case before it, the court declined to elaborate).

It is possible that the interplay between the DMCA and access to public domain works will be addressed through rule-making or legislation. The DMCA provides for a periodic review process by the Librarian of Congress, and the issue of circumvention of technological protections on public domain works was one of the issues raised in the most recent review session earlier this spring (See http://www.copyright.gov/1201/).

4) Going Native? - by Andy_R
Here in Britain, we recently shut down the governemental body that regulated our train services because they were tending to take the side of the small number of contact personnel at the train companies that they dealt with on a day to day basis rather than the side of the faceless multitiude of passengers who they only knew through a few angry mails.

Given that your department will (in the vast majority on cases) be working on behalf of a very very small number of copyright-holding organisations against potentially millions of nearly anonymous file sharers, how will you prevent this 'going native' phenomenon biasing your investigations in favour of people you having a close working relationship with, and how will you defend yourselves against the inevitable accusations that you have 'gone native' and are a 'private police force' for the copyright holders?

O'Leary:
You ask an excellent question: how do we, as federal prosecutors, ensure that we retain independent judgment throughout the prosecutorial process? The decision to bring any criminal prosecution is significant and has serious consequences. For this reason, although we work with victims frequently, we work diligently to preserve our independent prosecutorial decision-making authority.

As attorneys for the Department of Justice, our mission is to enforce the laws fully and fairly on behalf of the people of the United States. This is a responsibility we take very seriously. While we work with a wide range of victims, from large multi-national corporations to small mom and pop businesses, the ultimate responsibility for making prosecutorial decisions remains solely with us.

Throughout the criminal justice process, there are checks on how we exercise our authority, including the citizens of the grand jury (who can reject our allegations), judges (who can dismiss charges or rule evidence inadmissible), and ultimately the citizens on the trial jury (who can acquit the defendant). However, even though these checks and balances are in place, from our perspective, it is still our responsibility to maintain appropriate boundaries at all times.

As a result, we try always to exercise independent, unbiased prosecutorial judgment when reviewing cases referred to our office for prosecution. Although you may not hear about it, we frequently decide not to move forward with criminal charges even in instances where the victim wants us to do so. The public doesn't hear about the prosecutions that are declined, only those that go forward. The decision to prosecute or not is a decision based upon a full and independent evaluation of the facts, the evidence, and the law. By maintaining this standard, we work to preserve the integrity of the criminal justice process.

5) Background - by TrekkieGod
Given that as IP lawyers at CCIPS part of your responsibilities is not only enforcing current laws, but also "reviewing new policy proposals, legislation, or international agreements related to IP", I'd like to know something about your overall technical background.

A frequent gripe with the geeks here at Slashdot, myself included, is that apparently legislators are not sufficiently well informed to create IP laws, frequently proposing and enacting laws which either constrain individual rights in favor of protecting those of big corporations (like the DMCA), or are simply not effective, because they can never patch the frequently referred to "analog hole" which is always a required step for humans to get to the information.

Given that for ethical reasons, you may not give your honest opinion on said legislation since you are required to enforce them, I'd simply like to know if I can trust that you are sufficiently well-informed to give council on these ever emerging new IP legislations. Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones? Can you elaborate on what type of experience you feel helps to qualify you to truly understand the ramification of these legislations?

O'Leary:
Interesting question. While we are all lawyers at CCIPS, we come to our current positions from a wide range of backgrounds. We have attorneys who have policy and legislative experience. Other attorneys are former Assistant United States Attorneys with years of criminal trial experience. Others came from civil practice before joining the Criminal Division, and a number of us represented technology companies in private practice. Still others have substantial technical backgrounds apart from being lawyers. As a general rule, however, almost everyone in CCIPS is curious about technology and how it intersects with the law. Our interest in technology explains why so many of us are frequent Slashdot readers, and why working at CCIPS sparked our interest in the first place.

One of the biggest misconceptions we confront regularly is that because we are law enforcement we must be opposed to technological innovation. This is simply not the case. The benefits of technology are numerous. We support and enjoy them. Yet, just as law enforcement must conduct itself so as not to unduly limit innovation, so too must we respond when technology is misused for illegal purposes.

Because of our interest in technology and its effect on the laws we prosecute, the attorneys assigned to prosecute IP crimes spend time learning about new technologies as they are developed. This helps us not only keep pace with the latest innovations, but enhances our investigative and prosecutorial skills as well. As your question suggests, you can t determine how (or if) the law applies to technology unless you understand how the technology works. We learn a great deal about technology in the course of online investigations, many of which involve extremely sophisticated technology. We are also trained on an ongoing basis on various aspects of networks and technology in order to continue to develop and refine our skills. Finally, we draw upon the knowledge and perspective of technical experts from the investigative agencies as well as from the private sector.

All of these factors combine to give us a better perspective on the relationship between law and technology. We are frequently called upon to review and consider various legislative proposals. In instances where we are asked to comment on a proposal, we have the requisite technical and legal background necessary to provide a detailed and comprehensive analysis of the proposed legislation. We view providing this type of input as one of our core responsibilities, and we work very hard to stay in touch with emerging technologies for this very reason. Thanks for your question.

6) Terminology and newspeak - by kafka93
Given that from a legal standpoint (and, many would argue, an ethical one) there is a distinction between "copyright infringement"/IP violation and "theft", what views do you have on the regular and incorrect/misleading application of the latter term by such people as the RIAA and law enforcement? Such misuse of language seems disingenuous, and taints the arguments of those who might otherwise have valid points to make about the morality of misuse of intellectual property rights.

It seems that if there are ethical arguments against piracy and other forms of copyright misuse, those arguments can and should be made on their own merits without the introduction of psychological wordplay apparently designed to confuse the public and cloud the debate. Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?

O'Leary:
You're correct that words are important, in particular as they apply to characterizations of specific conduct. As you suggest, people with differing views on intellectual property enforcement should be careful not to overstate their case, nor should they do the opposite in an effort to minimize the effects of their conduct.

Traditionally, theft involves taking something from another person without their permission. In short, you deprive that person of their property and they can no longer enjoy its use. Some have argued, particularly in the context of online or digital piracy, that infringement or misappropriation really doesn't deprive the victim of their product because it is merely being copied, so infringement or misappropriation is not truly theft.

As criminal prosecutors, we focus on the conduct, regardless of the label that might be applied. That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

7) Fair Use - by El_Smack
I hear the term "Fair Use" bandied about all the time in these discussions. From a legal standpoint, does it exist? Do I have a right, that will stand up in a court of law, to make a copy of software/music/data for my own personal use? If I do, does making an "uncopy-able" product violate that right?

O'Leary:
Great question. The term fair use is frequently misunderstood, and with good reason. The short answer to your question is that fair use does exist. It is an important and longstanding aspect of our intellectual property rights regime. Fair use is a doctrine that holds that although copyright laws grant the creators of copyrighted works certain exclusive rights in their works, the law must simultaneously allow citizens to engage in a degree of copying (or other conduct that would otherwise be infringing in the absence of a fair use doctrine) to allow for such things as comment, criticism, scholarship, and news reporting.

The doctrine of fair use was originally adopted by judges ruling in early copyright cases. Ultimately, Congress incorporated the doctrine into the Copyright Act of 1976, where fair use is now codified at Section 107 of Title 17 of the U.S. Code. In creating section 107, Congress listed four factors to be considered in determining whether a use is fair or not:

(1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

These factors are essentially the same factors that had been used over the years by judges, and Congress's stated intent was to preserve the fair use doctrine as it had evolved. However, as many courts have pointed out over the years, whether something constitutes fair use is very fact-specific. It is difficult to craft a clear, bright-line rule that explains which particular uses of a work are fair use and which are infringement. In short, the exact parameters of fair use are often determined based on the facts of specific cases.

So yes, fair use does exist. Does it allow for some uses of copyrighted works that would otherwise be infringing in the absence of a fair use doctrine? Yes. Does fair use give a user a blanket license to infringe copyrighted works with impunity? No.

Fair use is among the many factors that prosecutors consider when determining whether or not to bring criminal charges. Having said that, however, fair use is not typically at issue in the cases we decide to bring as criminal prosecutions. Rarely do the facts that we would consider for prosecution give rise to a (sustainable) fair use argument by the defendant or defendants although we certainly hear them from time to time. As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

8) distinctions - by newsdee
Is a distinction made between different levels of IP infringement?

I imagine that, from a legal standpoint, there should be a different point of view between a student that copies one software for personal use and a blatant thief who makes money out of selling the same copied software.

However, this question has two assumptions:

- The student would not use the software if it was not available (i.e. it is not a lost sale)

- Both activities are infringing (i.e. this question is not seeking to justify the first case)

I think this question is especially relevant since there are reports that the RIAA is now prosecuting students for "infringements" that are mostly gray areas (i.e. the infringement does not seem proven beyond a reasonable doubt, at least to the public).

O'Leary:
Yes, there are distinctions made between different levels of infringement. Perhaps the most significant distinction is the difference between civil and criminal infringement. Historically, the vast majority of disputes about intellectual property rights enforcement have been dealt with in civil lawsuits, with the criminal law dealing with only a narrow subset of activity. Although there has been increased emphasis on criminal prosecution in recent years, it is still the case that most intellectual property enforcement is civil. The criminal copyright statutes don't allow anyone to be prosecuted unless he infringed a copy willfully, which is the most difficult type of intent to prove. The civil statutes, on the other hand, address infringement even if it was negligent or unintentional. Because we focus on the criminal IP laws, I will answer your question from that perspective.

There are two levels of criminal violations within the criminal copyright code. There are misdemeanors, which carry a prison term of one year or less. And there are felonies, which carry prison sentences of over one year (more on this below).

In general terms, infringement becomes a criminal matter (as opposed to civil) when it reaches a certain magnitude and when the conduct is willful. Within the criminal copyright statutes (17 U.S.C. sec. 506 and 18 U.S.C. sec. 2319) there are thresholds which must be met to trigger potential criminal sanctions. Simply put, these thresholds deal with the quantity and value of the works that are infringed.

Your question talks about the blatant thief who makes money out of selling copied software. This highlights another important area within the criminal law. The criminal statutes make a distinction between for-profit and not-for-profit piracy. Someone who is convicted of piracy for commercial advantage or private financial gain is subject to a felony penalty of up to 5 years in prison. By contrast, someone who infringes for reasons other than commercial advantage or private financial gain faces a maximum penalty of 3 years in prison (under the NET Act). Be aware, however, that the term private financial gain can encompass situations where pirated products are distributed or reproduced for anything of value, including other pirated products. In those instances, defendants will be subject to the 5 year penalty.

As we discussed earlier, there are a number of variables that determine a defendant s sentence in any particular case. However, these are the general distinctions made among various types of conduct which would be considered criminal in nature.

Finally, your question references cases being brought by the RIAA. As we've noted above, the cases filed by the RIAA are private civil actions which do not involve the Department of Justice. Also, you referenced the "beyond a reasonable doubt" standard within your question. In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

9) "... under penalty of perjury ..." - by OWJones
In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis mine).

Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since

1. It was an mp3.
2. It did have the name of an RIAA-represented artist in the title, and
3. It was at a university.

If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?

I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.

O'Leary:
Your question raises an important point. We feel strongly that everyone should comply with the requirements of all laws. Legal process under the DMCA or any other provision of law should be undertaken with the utmost care and good faith. Failure to do so undermines the credibility and effectiveness of our legal system.

Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time.

10) Daniel Peng's "MiniNapster" - by Pxtl
What is your opinion on the case of Daniel Peng? The internet at large is angry at the treatment of Peng by the courts - many consider sites like the one Peng created to be "common carriers" - that is, all Peng's site did was list the files other users had chosen to put on the academic network to be freely downloaded. Was it his responsibility to ensure that all the files listed on the academic network (which, unlike Napster, was a network he did not operate or design) were legitamate? While he may have been personally involved in pirating files (that is, he may have personally downloaded files to his computer) that was not the focus of the lawsuit. Peng was placed into a legal battle where he had no chance at victory, and as such had to settle out of court. What is your opinion on this case, and ones like it?

O'Leary:
The litigation involving Daniel Peng was a civil matter between private parties. I don't know any more about the case than what has appeared in the public press and other media. Therefore, as I mentioned at the outset, we simply cannot comment. However, as promised, we answered two additional questions which were not submitted to us by Slashdot moderators to make up for not answering this one.

11) Copy protection? - By Jucius Maximus
I am aware that companies spend large sums of money on holograms, authenticity cards, product activation schemes, anti-CD-copying schemes, serial numbers and so on. When investigating alleged copyright infringement, do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning? Does copyright infringement go down when companies put up roadblocks like these or do the infringers get away with it nontheless?

O'Leary:
Copyright owners have indeed implemented a variety of methods for deterring unauthorized copying or counterfeiting of their works. Software makers in particular often apply very elaborate authentication features to the packaging and media for their software in order to distinguish genuine copies from counterfeits.

In our experience, it appears that many of these methods have been effective at discouraging infringement and counterfeiting. For example, the use of unique authentication codes or serial numbers seems to have helped discourage some copying of software. The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs. And the advanced authentication methods used on software packaging (like holograms, watermarks, and edge-to-edge printing) have made the task of manufacturing counterfeits more difficult. In fact, some counterfeiters appear to have given up trying to beat the software makers at the authentication game, and instead now simply try to steal genuine packaging materials to package their counterfeit discs.
Have these copy-protection or authentication features eliminated infringement and counterfeiting? No, but they have had a deterrent effect.

12) Foreign Agencies - By mitd
As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US? Specifically Canada but also internationally in general.

O'Leary:
Great question. For too long, people have believed that geographic boundaries shield them from the consequences of piracy. Over the past few years, we have been working to change that belief. The Department recognizes that in order to deal with piracy effectively, we must respond globally. This is true regarding both online piracy and traditional hard goods piracy cases.

CCIPS has made international enforcement a priority. We have a number of tools, both formal and informal, for working internationally, including Mutual Legal Assistance Treaty Requests and Letters Rogatory. We are also able to employ the network of legal attaches stationed at U.S. Embassies around the world to help strengthen relationships with our foreign law enforcement counterparts and help build strong international cases. In general, international cooperation on intellectual property cases is becoming more effective each year. We do work on intellectual property cases with Canada and will continue to do so in the future. We are also currently working on cases in over a half a dozen other foreign nations. Over the past two years we have worked closely with investigators and prosecutors overseas in order to strengthen our own domestic prosecutions as well as support foreign prosecutions. We have traveled overseas to assist our foreign counter-parts and have welcomed foreign agents to the U.S. to learn more about evidence we might have to support their prosecutions.

Our office is currently working with the United States Attorney for the Eastern District of Virginia on the extradition from Australia of Hew Raymond Griffiths, a.k.a. bandido, the former leader of various warez groups, including DrinkOrDie and RiSC. In March 2003, a Federal Grand Jury sitting in the Eastern District of Virginia indicted Griffiths on charges of conspiracy to violate U.S. copyright laws; his extradition is being sought to face these charges. This is the first extradition of a foreign national for online copyright piracy.

Although working internationally is time and resource intensive, it is essential to effective enforcement of intellectual property rights, and we are committed to addressing piracy wherever it occurs.

Addendum:

Thanks again to everyone for submitting your questions. There were some great ones, and we regret that we cannot answer all of them. Thanks also to Slashdot for the opportunity to discuss these important issues. We look forward to additional opportunities to work with members of the online community to ensure that intellectual property rights are sufficiently protected.

mark_wilkins writes "A photographer named Leslie Kelly had sued Arriba Soft Corporation for infringing his copyrights to photos when they made thumbnails of his pictures and stored them in a public image search engine. Today the federal 9th Circuit Court of Appeals affirmed the district court's ruling that making these thumbnail copies of images for the search engine was 'fair use.' Since the applicability of fair-use defenses to copyright infringement touches on all kinds of common uses of the Internet as well as rulemaking related to the scope of the DMCA, this decision will probably have an effect on the discussion. (Note that this case was decided by a 3-judge panel and thus isn't binding precedent.)" Note that the court also reversed in part the lower court's ruling, specifically saying that the lower court should not have ruled on "whether the display of the larger image is a violation of Kelly's exclusive right to publically display his works."

TimButterfield writes "PUBLIC HEARING SCHEDULE AMENDED (68 FR 19966) The Copyright Office of the Library of Congress is scheduling two new days of public hearings in Washington, D.C., on the possible exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. In addition, the Copyright Office has cancelled two previously scheduled dates. Public hearings will now be held in Washington, D.C., on Thursday, May 1, 2003, beginning at 2:00 p.m. and on Friday, May 9, 2003, beginning at 9:30 a.m. The Washington, D.C., public hearings will be held at the Postal Rate Commission, 1333 H Street, N.W., Third Floor, Washington, D.C. The public hearings previously scheduled for April 15 and April 30, 2003, have been cancelled. The public hearing scheduled for May 2, 2003, will be conducted at the Postal Rate Commission at 9:30 a.m. As previously announced, hearings will also take place on May 14 and 15 at the UCLA Law School in Los Angeles, Calif. For more information, see the Copyright Office website."

program21 writes "The Copyright Office has just announced it will be accepting comments about rules for governing SoundExchange. SoundExchange is the RIAA division responsible for collecting royalties for webcasts. This is your chance to make sure the RIAA doesn't get to walk all over webcasters!" You've got until May 21st to be heard.

program21 writes "The Copyright Office has just announced it will be accepting comments about rules for governing SoundExchange. SoundExchange is the RIAA division responsible for collecting royalties for webcasts. This is your chance to make sure the RIAA doesn't get to walk all over webcasters!" You've got until May 21st to be heard.

petong writes "The Library of Congress's Copyright Office will be holding hearings to find out if changes need to be made to the DMCA, according to News.com. 'Anyone with strong feelings about the DMCA, one way or another, may submit a request by Apr. 1 to testify during the public forums, the Copyright Office said in its announcement. The hearing dates in the U.S. capital will be Apr. 11, Apr. 15 and May 2. The dates and locations in California have not been set yet.'"

Ren Bucholz writes "In what was designed to be a "safety valve," the Copyright Office is holding its tri-annual search for exemptions to the DMCA's prohibitions on circumventing access controls. The Electronic Frontier Foundation submitted comments last December that outlined four "classes of works" that should be exempt, including copy-protected CDs, region-coded DVDs, DVDs with unskippable promotional material, and public domain works that are only available on DVD. They are asking people to write in support of the four exemptions that they have proposed. The Copyright Office is only accepting comments until February 19th, so get on it!"

Ren Bucholz writes "In what was designed to be a "safety valve," the Copyright Office is holding its tri-annual search for exemptions to the DMCA's prohibitions on circumventing access controls. The Electronic Frontier Foundation submitted comments last December that outlined four "classes of works" that should be exempt, including copy-protected CDs, region-coded DVDs, DVDs with unskippable promotional material, and public domain works that are only available on DVD. They are asking people to write in support of the four exemptions that they have proposed. The Copyright Office is only accepting comments until February 19th, so get on it!"

Ascaroth writes "The DMCA comments on 'Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works' have been posted."

Ascaroth writes "The DMCA comments on 'Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works' have been posted."

Ascaroth writes "The DMCA comments on 'Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works' have been posted."

plaxion writes "Beginning tomorrow (Nov 19), the U.S. Copyright Office will begin accepting suggestions for new exemptions to the DMCA. From what I've read, it appears they're seeking specific examples on how the law restricts research or inhibits the marketplace. In other words, they won't be considering issues of inconvenience or hypothetical problems. The comment period ends Dec 18."