Slashdot Mirror

hillct writes: "The ACLU has a very good comparison chart of anti-terrorism provisions in legislation currently being considered by congress. It covers the Combating Terrorism Act of 2001, the House Bill (PATRIOT Act) and the Senate Bill (USA Act), comparing it all to current law. We've all seen pieces of this information but the ACLU staffers did a great job consolidating it all." CDT also has a very good pdf guide to these about-to-be-passed laws. But the Onion has the best commentary.

hillct writes: "The ACLU has a very good comparison chart of anti-terrorism provisions in legislation currently being considered by congress. It covers the Combating Terrorism Act of 2001, the House Bill (PATRIOT Act) and the Senate Bill (USA Act), comparing it all to current law. We've all seen pieces of this information but the ACLU staffers did a great job consolidating it all." CDT also has a very good pdf guide to these about-to-be-passed laws. But the Onion has the best commentary.

snogwozzle writes: "The US Copyright Office's congressionally-mandated advisory report on the effect of the DMCA is in, and at first glance it doesn't look too good. They're against undoing the definition of temporary RAM buffer copies as possibly infringing (which Jessica Litman in Digital Copyright pegged as perhaps the central dirty trick in the DMCA as it opens the door to technical access control by publishers) is turned down, so is a first sale doctrine for digitally distributed works, and the DMCA's effect on fair use is called out of scope for the report. On the other hand, they think everyone should have a backup right for media bought in digital form, like we have for software." Keep in mind that this is only looking at the DMCA's effect on the "first sale doctrine" (once a work is sold to you, the copyright holder can't stop you from re-selling it) and on the legal right to make backup copies of a computer program.

snogwozzle writes: "The US Copyright Office's congressionally-mandated advisory report on the effect of the DMCA is in, and at first glance it doesn't look too good. They're against undoing the definition of temporary RAM buffer copies as possibly infringing (which Jessica Litman in Digital Copyright pegged as perhaps the central dirty trick in the DMCA as it opens the door to technical access control by publishers) is turned down, so is a first sale doctrine for digitally distributed works, and the DMCA's effect on fair use is called out of scope for the report. On the other hand, they think everyone should have a backup right for media bought in digital form, like we have for software." Keep in mind that this is only looking at the DMCA's effect on the "first sale doctrine" (once a work is sold to you, the copyright holder can't stop you from re-selling it) and on the legal right to make backup copies of a computer program.

jeffy124 writes "New Jersey Democratic Senator Bob Torricelli has proposed federal legislation titled the School Website Protection Act of 2001 that would criminally punish students who disrupt school networks, whether it be elemantary, high school, or college. Unfortunately, the legislation makes common acts like sending e-mail to a teacher an offense that can be investigated by the Secret Service and punishable by 10 years incarceration. It almost seems as if sitting at a lab computer and logging in is illegal."

BoKnowsBeer writes: "H.R. 1486 - Sponsor: Rep Grucci, Felix J., Jr.. Title: To amend section 254 of the Communications Act of 1934 to require schools and libraries receiving universal service assistance to block access to Internet services that enable users to access the World Wide Web and transfer electronic mail in an anonymous manner." Grucci is quoted as saying privacy sites are used to recruit children into militant, pro-environmental causes. I want some of what he's been smoking. Meanwhile, Representative Billy Tauzin, who has forgotten that he lives in the U.S., put forward HR 2420, which will eliminate all of the requirements on the Baby Bell companies which keep them from destroying the competing exchange carriers, and finish off any remaining competition from DSL carriers such as Covad and Northpoint, which would no longer be permitted to lease space in the telcos' Central Offices for their DSL equipment. But the CLEC's are rallying - they went to their congressmen, handed them the requisite bags of cash, and got their own bill to rally behind.

That's a large part of the intent of the Hague Convention on Jurisdiction and Foreign Judgments, tempered by other countries' desire to have their copyright and patent laws enforceable worldwide, too. Today I attended a public roundtable discussion about this treaty proposal at the U.S. Library of Congress. (more)

Representatives of "copyright holders" heavily outnumbered freedom advocates, as is typical at this kind of event, but the leadoff speaker, Michael Davis of the Progressive IP Law Association, started the session by talking about how hip-hop sampling would be killed by the Hague Convention if it is ratified in its present form, which has "fair use" provisions nearly as onerous as those contained in the DMCA.

Interestingly, Marilyn Cade of AT&T spoke out against much of the Hague Convention's intent; her company's concern, she said, is keeping global communications and ecommerce free and easy. A representative from Yahoo! was even more negative about this treaty, which would make U.S. authorities responsible for enforcing other countries' copyright and IP laws, and vice versa.

Think about this spectre, which another participant raised: a court in Moscow, Iran or China could decide something posted on a Web site based in the U.S. violated their countries' laws and, as Hague Convention signatories, demand that U.S. authorities force the Web site owner to remove the offending material. This is not a far-fetched idea; remember Yahoo! and the French government's objection to Nazi memorabilia sales?

At the other extreme, the American Society of Media Photographers loves the idea of a treaty that will help its members collect royalties from foreign media that use their images.

Not Just Speaking to the Peanut Gallery

I only counted 36 people in the audience; intellectual property issue discussions never draw mass attention. But the only audience that counted today was the U.S. Hague Convention delegation, and they were here, sitting up front, listening to every panelist's words, asking questions, and generally trying to learn what various constituencies want (and don't want) in the way of intellectual property treaties before they go off to the next negotiating session.

A Nationalized Movie Industry?

Jared Jussim of Sony Pictures talked at length about the "entrepreneurialism" of the movie business and how vigorous international copyright enforcement is needed to keep the movie business healthy. He said, "If we could have the Digital Millenium Copyright Act extended throughout the world, I would be ecstatic about it."

Jussim ranted hard about online freedom-seekers; he dumped on "professors" who "cite each others papers in a big circle" and how they are all "liars." Strong words. But that wasn't enough for the man. He directly stated that if movies or even pieces of them were distributed online or through other means not approved by the movie companies, the entire industry would eventually shut down; that "you would pay a tax" to finance government-produced movies; and that government flunkies would decide what movies got made and what you saw in theaters and on TV. Horrors!

The spectre of a government-controlled film industry obviously is enough to make any right-thinking person want to see all possible copyright protection added to every possible intellectual property treaty.

Faced with this potential evil, it is obvious that the ACLU and all those professors who yammer on about fair use, freedom of speech, constitutionality and similar silliness must be ignored.

Media Attention

The Washington Post showed up. A cameraman from TechTV shot a few moments worth of tape, without sound. One of the local tech newsletters sent a reporter. And me. These were all the "known" journalists I spotted, but others were taking notes, so who can say? Perhaps one of the quiet people in the front row was a secret representative of the Today Show, but somehow I doubt it.

The Hague Convention could make major changes in the way intellectual property and copyright laws are handled on an international scale, but "the public" probably won't hear about any of this -- and won't care if they do -- unless there is some sort of corporate aggression under the Hague Convention that affects as many people as the RIAA's anti-Napster actions. Then you'll see the big-time pundits weigh in. But at this point in the game, they are nowhere to be found.

Enter RMS, Stage Right

Richard M. Stallman, representing the League for Programming Freedom, was scheduled to take part in the afternoon session but he showed up shortly before lunch and was immediately buttonholed by the Washington Post reporter. He spent the lunch break charming a member of the trade delegation, who said she was surprised that she had not heard "strongly" before about any of the intellectual freedom concerns brought up today by Stallman and other panel members. And listen to Stallman she did, with total concentration, while eating a sandwich and drinking a soda on the front lawn of the Library of Congress's Adams Building.

Stallman was not alone in speaking about the rights of intellectual property creators and users. Laurie Racine, of the Red Hat-sponsored Center for the Public Domain, did a turn, as did representatives of the Trial Lawyers of America, a blacksuited young attorney from the MPAA, Jamie Love from the Consumer Project on Technology, people from BMI, ASCAP,AAP, and other "interested parties."

Love brought up a hypothetical situation: Cuba copyrighting the "cuban beat" and demanding 5% royalties from all American music performers who use it -- and under the terms of the proposed Hague treaty, having the legal right to force U.S. officials to help them collect.

But proceedings like this one are basically dominated by lawyers. "What if?" questions get asked and debated. Ties between copyright laws and other cross-border civil and criminal situations get discussed in detail so excruciating that it could make non-smokers want to take up the habit just to have an excuse to slip outside for a few minutes now and then.

Not Just the U.S.

Even if the U.S. delegation to the Hague Convention come down totally on the side of the angels, they will still be just one of many delegations, and other countries may have other ideas. A number of people here today have talked about how, when it comes to copyrights and patents, the U.S. is one of the most restrictive nations around, so American copyright holders probably have more to fear on that front from the rest of the world than the rest of the world has to fear from us.

Where ordinary Americans may lose out is on freedom of speech issues. Many countries have far more restrictive policies on libel and on what citizens may or may not say about touchy subjects like politics or religion, especially if those opinions are published on the Internet.

RMS vs. Sony

Imagine Stallman being accused of "not speaking for the public" on copyright matters by Sony's Jussim -- who also managed to get in a plug for movies being a great entertainment value compared to live theater or professional sports. Imagine Stallman calmly -- aside from a gleam in his eyes -- reminding the poor flak that more money goes to promote movies than to make them, so that more money in the studios' pockets wouldn't necessarily lead to better movies.

This was the first moment of passion in over an hour. Sadly, it only lasted a moment. Then it was back to drone, drone, drone.

"The ISP Community" and "The Content Community" were phrases that got thrown a lot. In the legal sense, we heard, the question of whether "publication" takes place on a server or on the client where it is displayed hasn't been settled yet.

And so on.

Toward the end of the day Jamie Love said, "There hasn't been a single American newspaper article about this treaty, and here you are getting ready to create the Magna Carta of cyberspace."

Love didn't blame the people on the U.S. delegation for working in comparative secret. "I've called reporter after reporter [about this] and their eyes glaze over," he said.

So Slashdot was there. And if you want to read the text of this treaty, it's online here.

And if you are a U.S. citizen who wants to get in touch with the people representing you at the next Hague Convention meeting (in June), three good people to contact are:

Jennifer Lucas at USPTO (jennifer.lucas@uspto.gov)

Jeffrey D. Kovar at U.S. Dept. of State (kovarj@ms.state.gov)

Maneesha Mithal at the Federal Trade Commission (mmithal@ftc.gov)

That's a large part of the intent of the Hague Convention on Jurisdiction and Foreign Judgments, tempered by other countries' desire to have their copyright and patent laws enforceable worldwide, too. Today I attended a public roundtable discussion about this treaty proposal at the U.S. Library of Congress. (more)

Representatives of "copyright holders" heavily outnumbered freedom advocates, as is typical at this kind of event, but the leadoff speaker, Michael Davis of the Progressive IP Law Association, started the session by talking about how hip-hop sampling would be killed by the Hague Convention if it is ratified in its present form, which has "fair use" provisions nearly as onerous as those contained in the DMCA.

Interestingly, Marilyn Cade of AT&T spoke out against much of the Hague Convention's intent; her company's concern, she said, is keeping global communications and ecommerce free and easy. A representative from Yahoo! was even more negative about this treaty, which would make U.S. authorities responsible for enforcing other countries' copyright and IP laws, and vice versa.

Think about this spectre, which another participant raised: a court in Moscow, Iran or China could decide something posted on a Web site based in the U.S. violated their countries' laws and, as Hague Convention signatories, demand that U.S. authorities force the Web site owner to remove the offending material. This is not a far-fetched idea; remember Yahoo! and the French government's objection to Nazi memorabilia sales?

At the other extreme, the American Society of Media Photographers loves the idea of a treaty that will help its members collect royalties from foreign media that use their images.

Not Just Speaking to the Peanut Gallery

I only counted 36 people in the audience; intellectual property issue discussions never draw mass attention. But the only audience that counted today was the U.S. Hague Convention delegation, and they were here, sitting up front, listening to every panelist's words, asking questions, and generally trying to learn what various constituencies want (and don't want) in the way of intellectual property treaties before they go off to the next negotiating session.

A Nationalized Movie Industry?

Jared Jussim of Sony Pictures talked at length about the "entrepreneurialism" of the movie business and how vigorous international copyright enforcement is needed to keep the movie business healthy. He said, "If we could have the Digital Millenium Copyright Act extended throughout the world, I would be ecstatic about it."

Jussim ranted hard about online freedom-seekers; he dumped on "professors" who "cite each others papers in a big circle" and how they are all "liars." Strong words. But that wasn't enough for the man. He directly stated that if movies or even pieces of them were distributed online or through other means not approved by the movie companies, the entire industry would eventually shut down; that "you would pay a tax" to finance government-produced movies; and that government flunkies would decide what movies got made and what you saw in theaters and on TV. Horrors!

The spectre of a government-controlled film industry obviously is enough to make any right-thinking person want to see all possible copyright protection added to every possible intellectual property treaty.

Faced with this potential evil, it is obvious that the ACLU and all those professors who yammer on about fair use, freedom of speech, constitutionality and similar silliness must be ignored.

Media Attention

The Washington Post showed up. A cameraman from TechTV shot a few moments worth of tape, without sound. One of the local tech newsletters sent a reporter. And me. These were all the "known" journalists I spotted, but others were taking notes, so who can say? Perhaps one of the quiet people in the front row was a secret representative of the Today Show, but somehow I doubt it.

The Hague Convention could make major changes in the way intellectual property and copyright laws are handled on an international scale, but "the public" probably won't hear about any of this -- and won't care if they do -- unless there is some sort of corporate aggression under the Hague Convention that affects as many people as the RIAA's anti-Napster actions. Then you'll see the big-time pundits weigh in. But at this point in the game, they are nowhere to be found.

Enter RMS, Stage Right

Richard M. Stallman, representing the League for Programming Freedom, was scheduled to take part in the afternoon session but he showed up shortly before lunch and was immediately buttonholed by the Washington Post reporter. He spent the lunch break charming a member of the trade delegation, who said she was surprised that she had not heard "strongly" before about any of the intellectual freedom concerns brought up today by Stallman and other panel members. And listen to Stallman she did, with total concentration, while eating a sandwich and drinking a soda on the front lawn of the Library of Congress's Adams Building.

Stallman was not alone in speaking about the rights of intellectual property creators and users. Laurie Racine, of the Red Hat-sponsored Center for the Public Domain, did a turn, as did representatives of the Trial Lawyers of America, a blacksuited young attorney from the MPAA, Jamie Love from the Consumer Project on Technology, people from BMI, ASCAP,AAP, and other "interested parties."

Love brought up a hypothetical situation: Cuba copyrighting the "cuban beat" and demanding 5% royalties from all American music performers who use it -- and under the terms of the proposed Hague treaty, having the legal right to force U.S. officials to help them collect.

But proceedings like this one are basically dominated by lawyers. "What if?" questions get asked and debated. Ties between copyright laws and other cross-border civil and criminal situations get discussed in detail so excruciating that it could make non-smokers want to take up the habit just to have an excuse to slip outside for a few minutes now and then.

Not Just the U.S.

Even if the U.S. delegation to the Hague Convention come down totally on the side of the angels, they will still be just one of many delegations, and other countries may have other ideas. A number of people here today have talked about how, when it comes to copyrights and patents, the U.S. is one of the most restrictive nations around, so American copyright holders probably have more to fear on that front from the rest of the world than the rest of the world has to fear from us.

Where ordinary Americans may lose out is on freedom of speech issues. Many countries have far more restrictive policies on libel and on what citizens may or may not say about touchy subjects like politics or religion, especially if those opinions are published on the Internet.

RMS vs. Sony

Imagine Stallman being accused of "not speaking for the public" on copyright matters by Sony's Jussim -- who also managed to get in a plug for movies being a great entertainment value compared to live theater or professional sports. Imagine Stallman calmly -- aside from a gleam in his eyes -- reminding the poor flak that more money goes to promote movies than to make them, so that more money in the studios' pockets wouldn't necessarily lead to better movies.

This was the first moment of passion in over an hour. Sadly, it only lasted a moment. Then it was back to drone, drone, drone.

"The ISP Community" and "The Content Community" were phrases that got thrown a lot. In the legal sense, we heard, the question of whether "publication" takes place on a server or on the client where it is displayed hasn't been settled yet.

And so on.

Toward the end of the day Jamie Love said, "There hasn't been a single American newspaper article about this treaty, and here you are getting ready to create the Magna Carta of cyberspace."

Love didn't blame the people on the U.S. delegation for working in comparative secret. "I've called reporter after reporter [about this] and their eyes glaze over," he said.

So Slashdot was there. And if you want to read the text of this treaty, it's online here.

And if you are a U.S. citizen who wants to get in touch with the people representing you at the next Hague Convention meeting (in June), three good people to contact are:

Jennifer Lucas at USPTO (jennifer.lucas@uspto.gov)

Jeffrey D. Kovar at U.S. Dept. of State (kovarj@ms.state.gov)

Maneesha Mithal at the Federal Trade Commission (mmithal@ftc.gov)

DrPsycho writes: "Saw this linked on memepool and it just blew me away. The Library of Congress website has an exhibition section which features the works of Russian photographer Sergei Prokudin-Gorskii (1863-1944). Yeah yeah. Big deal, you say... until you realize his original B&W glass-plate negatives were created using a clever RGB filter system which he used almost 100 years ago. A little modern "digichromatography" ... reapplication of the filtered colours and combining them into a composite colour image... allows for stunning full colour reproductions! Not bad, considering by how long it predates the release of Kodachrome colour slide film."

DrPsycho writes: "Saw this linked on memepool and it just blew me away. The Library of Congress website has an exhibition section which features the works of Russian photographer Sergei Prokudin-Gorskii (1863-1944). Yeah yeah. Big deal, you say... until you realize his original B&W glass-plate negatives were created using a clever RGB filter system which he used almost 100 years ago. A little modern "digichromatography" ... reapplication of the filtered colours and combining them into a composite colour image... allows for stunning full colour reproductions! Not bad, considering by how long it predates the release of Kodachrome colour slide film."

DrPsycho writes: "Saw this linked on memepool and it just blew me away. The Library of Congress website has an exhibition section which features the works of Russian photographer Sergei Prokudin-Gorskii (1863-1944). Yeah yeah. Big deal, you say... until you realize his original B&W glass-plate negatives were created using a clever RGB filter system which he used almost 100 years ago. A little modern "digichromatography" ... reapplication of the filtered colours and combining them into a composite colour image... allows for stunning full colour reproductions! Not bad, considering by how long it predates the release of Kodachrome colour slide film."

DrPsycho writes: "Saw this linked on memepool and it just blew me away. The Library of Congress website has an exhibition section which features the works of Russian photographer Sergei Prokudin-Gorskii (1863-1944). Yeah yeah. Big deal, you say... until you realize his original B&W glass-plate negatives were created using a clever RGB filter system which he used almost 100 years ago. A little modern "digichromatography" ... reapplication of the filtered colours and combining them into a composite colour image... allows for stunning full colour reproductions! Not bad, considering by how long it predates the release of Kodachrome colour slide film."

DrPsycho writes: "Saw this linked on memepool and it just blew me away. The Library of Congress website has an exhibition section which features the works of Russian photographer Sergei Prokudin-Gorskii (1863-1944). Yeah yeah. Big deal, you say... until you realize his original B&W glass-plate negatives were created using a clever RGB filter system which he used almost 100 years ago. A little modern "digichromatography" ... reapplication of the filtered colours and combining them into a composite colour image... allows for stunning full colour reproductions! Not bad, considering by how long it predates the release of Kodachrome colour slide film."

Alien54 writes: "The E-Government Act, which Sens. Joseph Lieberman (D-Conn.) and Conrad Burns (R-Mont.) introduced Tuesday, is designed to make it easier for citizens to access federal information and services online. As reported in Internet Week, the bill [S.803]will create a federal chief information officer and allot $225 million annually to improve government services over the Internet. The Bill text has yet to be posted to the web, but should be up in a week or so."

ParticleGirl writes "This morning, congress called for a federal ban on human cloning. The associated press has an article. This follows the International Cloning Ban which took effect last month. This is research into human cloning for any reason, this is "importing a clone" ...a kid born of cloning overseas can't come into the U.S.? And other weird stuff." If god is all powerful, then can't this just be another way he works? Personally I don't care if there's a god or not: I want clones. I wanna grow spare hearts in a vat. I wanna have a brainless clone in a tube in case I blow out my liver drinking whiskey. And as soon as we get really good with the genetic engineering, I want my own half height clone to mow my lawn.

Sarcasmo writes: "The Internet Law Journal has a very in-depth piece on the issue of opt-in vs. opt-out that takes on the good and the bad from both sides. How the current situation will (or will not) be handled, will depend on what conclusion lawmakers come to on this core debate. An opt-in requirement is TILJ's conclusion. What's yours?" This is a good, well-reasoned analysis - exactly the type of analysis that holds no weight in legislatures.

More on privacy as seen by legislators; a hopefully luckfilled update on graphics software you may be waiting for; and a denial from Germany on the "getting rid of Microsoft software" claims touted not long ago. All below in tonight's episode of Slashback.

Buried in the fine print is where you will find Jimmy Hoffa and mitigation. Sarcasmo writes "I'm hoping you'll post this story, since it's partly a correction/update of a previous story on Slashdot. While Senator Edwards' bill, S. 197, does come down on spyware in a very good way, it doesn't as the previous article suggested, "require commercial web sites to ask permission from the user before a cookie can be set or personal information collected." To quote the bill itself:

"(B) The term does not include a text file, or cookie, placed on a person's computer system by an Internet service provider, interactive computer service, or commercial Internet website to return information to the Internet service provider, interactive computer service, commercial Internet website, or third party if the person subsequently uses the Internet service provider or interactive computer service, or accesses the commercial Internet website."

Though I did come across this bill introduced to the house by Representative Green of Texas -- and it seems to come down just as hard on cookie use specifically."

Oh, baby, I love your photo-realism -- it's so ... real-seeming. After wryly noting that the last few times it's been featured in this forum it's been while he was on a plane, or in the middle of bug-fixing, or while being boiled alive by cannibals, etc, Paul Nolan says of his Photogenics graphics software:

"Well, it was a long hard slog, but it's finally out, the press release is here.

There's a pretty good chance there will be a local power outage today, on the off chance that would increase my chances ;)"

Nicht wahr, nicht wahr. sconeu writes "According to Wired, a German Defense Ministry official has denied the original report in Der Speigel about the Microsoft ban ... Oh well..."

More on privacy as seen by legislators; a hopefully luckfilled update on graphics software you may be waiting for; and a denial from Germany on the "getting rid of Microsoft software" claims touted not long ago. All below in tonight's episode of Slashback.

Buried in the fine print is where you will find Jimmy Hoffa and mitigation. Sarcasmo writes "I'm hoping you'll post this story, since it's partly a correction/update of a previous story on Slashdot. While Senator Edwards' bill, S. 197, does come down on spyware in a very good way, it doesn't as the previous article suggested, "require commercial web sites to ask permission from the user before a cookie can be set or personal information collected." To quote the bill itself:

"(B) The term does not include a text file, or cookie, placed on a person's computer system by an Internet service provider, interactive computer service, or commercial Internet website to return information to the Internet service provider, interactive computer service, commercial Internet website, or third party if the person subsequently uses the Internet service provider or interactive computer service, or accesses the commercial Internet website."

Though I did come across this bill introduced to the house by Representative Green of Texas -- and it seems to come down just as hard on cookie use specifically."

Oh, baby, I love your photo-realism -- it's so ... real-seeming. After wryly noting that the last few times it's been featured in this forum it's been while he was on a plane, or in the middle of bug-fixing, or while being boiled alive by cannibals, etc, Paul Nolan says of his Photogenics graphics software:

"Well, it was a long hard slog, but it's finally out, the press release is here.

There's a pretty good chance there will be a local power outage today, on the off chance that would increase my chances ;)"

Nicht wahr, nicht wahr. sconeu writes "According to Wired, a German Defense Ministry official has denied the original report in Der Speigel about the Microsoft ban ... Oh well..."

Last Saturday a comment was posted here by an anonymous reader that contained text that was copyrighted by the Church of Scientology. They have since followed the DMCA and demanded that we remove the comment. While Slashdot is an open forum and we encourage free discussion and sharing of ideas, our lawyers have advised us that, considering all the details of this case, the comment should come down. Read on to understand what this means.

This is the first time since we instituted our moderation system that a comment has had to be removed because of its content, and believe me nobody is more broken hearted about it than me. It's a bad precedent, and a blow for the freedom of speech that we all share in this forum. But this simply doesn't look like a case we can win. Our lawyers tell us that it appears to be a violation of Copyright law, and under the terms of the DMCA, we must remove it. Else we risk legal action that would at best be expensive, and potentially cause Slashdot to go down temporarily or even permanently. At the worst, court orders could jeporadize your privacy, and we would be helpless to stop it.

We need to choose our battles and this isn't one we want to have. We want Slashdot to be a forum where you can say what's in your heart, but we simply can't defend an anonymous poster who violates copyright law. Keep that in mind when you post in both this discussion, and in others in the future. Post your ideas. Post your thoughts. And most of all, post your links. We need to play by the rules or it's game over.

Now there is the matter of this specific comment. It contained a text called "OT III", part of what is known as the Fishman Affidavit. This text is Copyrighted by the Church of Scientology. In compliance with the DMCA, we are removing it from Slashdot. In its place we are putting non-copyrighted text: Links to websites about the church of Scientology, as well as links to how you can contact your congressman about the DMCA. Thanks a lot to Jamie for putting this together.

First of all, we would like to point out that the text of OT III is available at many other places on the web. To many to list here in fact. Instead, try a Google search on "OT III" and "Fishman", which as of this writing (March 2001) returns over 250 pages. A broader search on AltaVista returns over 2,000 webpages.

Operating in the jurisdiction of the Dutch courts, Karin Spaink's Fishman Affidavit webpage has fended off two lawsuits from Scientology, one in 1996 and one in 1999. The latter suit, according to the page, is still being appealed. >From the link listed just above, you can click through to the Fishman Affidavit, which contains links to not only to an annotated copy of OT III, but to the documents on the other OT levels as well, number one through the disputed number eight.

If you would like a plain English explanation of OT III, see OT III Rewritten For Beginners, by Jon Atack. Its author is a former Scientologist who himself completed level OT III. The webpage contains nothing copyrighted by a Scientology organization. It is an explanation of what OT III says and what that means, along with commentary by the author. Jon Atack is also the author of A Piece of Blue Sky, which is a history of Scientology from before its founding to after L. Ron Hubbard's death. At the above link, you can either purchase it, or read it in its entirety online.

If you are interested in Scientology, you will want to visit Operation Clambake, at xenu.net. It seems to be the most important central resource for information on the organization.

You may also want to visit the Lisa McPherson Memorial Page, which claims that "Lisa died needlessly at the hands of Scientology." Her case is truly a tragic one and she deserves to be remembered. The site has a great deal of information on her death. Related is The Lisa McPherson Trust, which has not only information about Lisa, but a very large archive of interviews, court transcripts, news reports, testimonials, and videos about Scientology.

Here's a Slashdot story last year on eBay removing auctions for e-meters based on the Church of Scientology DMCA copyright allegations, which is odd because Copyright law doesn't cover a physical device.

If there's anything else about Scientology you want to know, you will want to see AltReligionScientology.org, which contains a huge list of links to all the sites I don't have room to list here.

The DMCA is actually five separate modifications to copyright law. Its Title I is known for providing legal protection for "technological measures" (typically encryption) which prevent copying; this is the part that empowered the MPAA to sue over DeCSS, to name the best-known example.

That's not the part that concerns us here; Title II is its other major modification of copyright law and that's what we're dealing with. Title II created 17 U.S.C. Section 512, and we're specifically looking at our liability under paragraphs (c)(1)(A), which says we have to act "expeditiously to remove or disable access to the [infringing] material." Here's the U.S. Copyright Office's 18-page summary of the DMCA as a whole. If 18 pages is too long for you, here's the American Library Association's much quicker summary

Here's a list of resources on the DMCA, including the DMCA itself in PDF format. The EFF page on the DCMA seems to relate mostly to Title I, the anti-encryption-circumvention portion, but it's too good not to mention anyway.

Don't know who your Congressperson or Senators are? That's OK, now's as good a time as any to learn. Finding your Senators is easy, just go to Senate.gov. To find your Representative, you just need your zip code. You can use the form on the website to write them if you're lazy, but if you want your message to have more impact, print it out and send it in a real envelope. Anything's better than nothing, though.

When you write, you'll want to write something they'll read. Here are the ACLU's tips for writing to your Congressperson or Senators.

If you remember our Guiness Beer Really Sucks story, you'll recall that WIPO's rule has been "no sucks domains." There's a three-part test and if you pass any of the parts you're in the clear, but one of the silly gotchas about test number three is that Xsucks.com has repeatedly been ruled "identical or confusingly similar" to trademarkX. This makes no sense, of course. But the strange thing is that WIPO on Monday reversed itself. In one of the rare decisions awarded to the domain holder, the arbitration panel said that the owner of LockheedMartinSucks.com could keep his domain, because it was not confusingly similar to LockheedMartin.com. Um. What?

I have a problem with the whole notion of taking domains away to begin with. The only tune that corporate, capitalist American can sing is "the free market" -- except when it comes to the free market in domain names.

Real estate speculation? Great, it optimizes efficiency. Currency market speculation? Balances resources internationally and assures prosperity. But domain name speculation? You filthy cybersquatter!

Personally I could see this being useful in 1995, when companies were just waking up to the internet, but I think it's run its course. Any company in 2001 that hasn't registered its corporate name, and all its major products' names before making them public, is stupid and deserves to pay large sums of money to savvy entrepreneurs. In 2001, we're just seeing natural selection running its course. Bailing out stupidity is corporate welfare.

Anyway, the big picture is that the World Intellectual Property Organization (WIPO), in adjudicating the Uniform Domain-Name Dispute-Resolution Protocol (UDRP), is trying to find a way to apply trademark law to the internet. The rules put in place ensured that there was to be no free market on "LockheedMartin.com" -- the company that owns the trademark on "LOCKHEED MARTIN" gets it, and others are only allowed to have it if they are doing something appropriate with it (not using it in "bad faith," to be precise).

WIPO makes its decisions based on the UDRP, but has a wide latitude in interpreting it. This is one of its problems, of course. The UDRP has a handful of fuzzy two-word clauses like "bad faith" and "legitimate interests"; WIPO's panelists can interpret them almost any way they want. Consistency is a prerequisite of justice, and randomly-administered justice is no justice at all.

But Monday, the two fuzzy words were "confusingly similar," namely, whether LockheedMartinSucks.com is confusingly similar to LockheedMartin.com. The decisions came down, and they may be the most startling display of WIPO's arbitrary arbitration.

As the decision states, Lockheed-Martin "relie[d] primarily on previous ICANN decisions that have found domain names that combine a trademark with the word 'sucks' to be confusingly similar to the trademark."

Lockheed probably thought it was on safe ground by doing so. The list of domains taken away for that reason was long: guinness-sucks.com, guinness-really-sucks.com, etc., wal-martsucks.com, cabelassucks.com, directlinesucks.com, dixonssucks.com, freeservesucks.com, natwestsucks.com, standardcharteredsucks.com, and wal-martcanadasucks.com, etc.

But Monday's decision, for once, told the truth:

"The disputed domain names are neither identical nor confusingly similar to Complainant's trademarks, since no one would reasonably believe that Complainant operates a website that appends the word 'sucks' to its name and then uses it to criticize corporate America."

What took Captain Obvious so long to arrive?

The decision also notes that in the WalmartCanadaSucks.com decision, the only other case where the trademark-holder was told to take a hike, the sole panelist "expressed skepticism" about the confusing similarity of sucks, "but stopped just short of advocating a per se privilege exempting all 'sucks' domain names."

Likewise here; they make it clear that "no one could reasonably believe" sucks is confusing. And more interestingly -- they do not bother even to consider the other two parts of the three-part test. As soon as they decided that LockheedSucks was not Lockheed, that was it, the case was over.

But, unfortunately, I don't see any language that encourages future panelists to reach the same decision. This is an international body and they don't have to follow the almost-uniquely-American tradition of following precedent and being, you know, predictable. The next ten sucks sites might be taken away, for all anyone can tell. Or they might not. Sucks-sters will just have to hope they get the right panelist.

There were some good lines in this decision, by the way, that tell me that the panelists know what's what. "A website that functions for the exercise of free speech by its nature can not operate with bad faith intent." I like that. Kudos to panelists Foster and Sorkin.

And shame on panelist Wagoner, who was the dissenting voice.

Wagoner was embarrassingly honest in his outrage that the UDRP was being followed, for once. The implication of the majority decision, he complained, is that "the lack of 'confusing similarity' would prevent a finding that the Policy had been violated."

Well, yes: that's exactly how the Policy demands that WIPO rule. When your personal beliefs about what the UDRP should say, Mr. Wagoner, differ from what it actually does say, we'd hope you can figure out which to follow.

And among his reasons why "sucks" should be swallowed up by corporate America is that consumer eyeballs belong to corporate America. If you the consumer do a search for Lockheed, happen to notice that someone is criticizing it at a sucks domain, and then of your own free will and volition decide you want to click and see what the criticism is all about, your reckless websurfing has made you party to a filching of Lockheed's intellectual property:

"...it is likely (given the relative ease by which websites can be entered) that such users will choose to visit the sites, if only to satisfy their curiosity. Respondent will have accomplished his objective of diverting potential customers of Complainant to his websites by the use of domain names that are similar to Complainant's trademark."

The other two panelists smacked down that insipid argument explicitly, too, by the way, saying that once the searcher sees the sucks and nonsucks alternatives, he or she will exhibit a discernment and intelligence measurably higher than the average garden slug.

Someone needs to ask WIPO: what the hell is going on?

Trademark law (in the United States at least) exists for the citizen's protection, not the corporation's. The laws against dilution of trademarks exist so that you and I will not be confused. When the law, or in this case the arbitration rules, start to protect corporations' trademark interests over ours, something has gone wrong.

And domain names are the real estate of the internet. Obviously a sucks domain name is parody, and will not be confused with its target -- obviously. People who would criticize corporations have enough problems to worry about already with libel suits they can't afford to defend (win or lose). The last thing they need is a governing body that can take away their website on absurd charges of trademark violation.

And the second-to-last thing they need is a governing body that can't make up its damn mind.

Last night, I read this New York Times article (free reg. req.) about Clinton's veto of what would have been a new law to prevent leaks of classified information. But I didn't understand its significance until I read this earlier Salon.com article by Daniel Ellsburg, who had leaked the Pentagon Papers so that U.S. citizens could learn how their government had lied to them about Vietnam. "If Congress were so scrupulous about the First Amendment, it wouldn't have passed this law," says Ellsburg. I'm gratified to see a politician refusing on principle to extend government's powers. Here's the President's statement; and here's the bill (sponsor: Rep. Goss, R-Fla.).

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

On Friday, the Librarian of Congress published the results of the DMCA comments process, which we've mentioned here before. Starting on October 28, the remaining part of the Digital Millennium Copyright Act has gone into effect, except for the two minor exceptions which the Register of Copyrights recommended.

The Digital Millennium Copyright Act

Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):

" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-

"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
...
"(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

"(3) As used in this subsection?

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

...

"(b) ADDITIONAL VIOLATIONS.-

"(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that?

"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"(2) As used in this subsection-

"(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.

Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.

Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.

Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.

The review process is now complete, and the ruling has been issued. Only two exemptions were issued:

• Compilations consisting of lists of websites blocked by filtering software applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness

The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.

The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.

Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.

So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.

(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)

Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.

So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.

The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".

In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.

(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)

Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.

-- Michael Sims, 2000-10-30

slashdoter writes: "EFF has some info on a new bill before Congress. The Music Owners' Listening Rights Act of 2000 says that you can use the internet to move music as long as you own the CD. You can read the story at the EFF website." The 360-word bill would have cut the my.mp3.com lawsuit off at the knees, so naturally mp3.com likes it; if it passes, mp3.com might even discover its missing backbone. So check to see whether your Congressperson is on the House Judiciary Committee; if so, since that's where the bill is, your opinion can have some real leverage. Send email!

slashdoter continues: "And on a side note, I just received my welcome letter from the EFF and was angered to find I was only member #11420. After 10 years that's all they have. Come on, as a student it only cost me $20(US). Words are nice but money speaks."

On another side note: civil-rights-wise, it's ironic that this bill's author also introduced H.R. 1081, a silly thing that died in committee. A hate-crime law with stiff penalties for flag-bashing.

slashdoter writes: "EFF has some info on a new bill before Congress. The Music Owners' Listening Rights Act of 2000 says that you can use the internet to move music as long as you own the CD. You can read the story at the EFF website." The 360-word bill would have cut the my.mp3.com lawsuit off at the knees, so naturally mp3.com likes it; if it passes, mp3.com might even discover its missing backbone. So check to see whether your Congressperson is on the House Judiciary Committee; if so, since that's where the bill is, your opinion can have some real leverage. Send email!

slashdoter continues: "And on a side note, I just received my welcome letter from the EFF and was angered to find I was only member #11420. After 10 years that's all they have. Come on, as a student it only cost me $20(US). Words are nice but money speaks."

On another side note: civil-rights-wise, it's ironic that this bill's author also introduced H.R. 1081, a silly thing that died in committee. A hate-crime law with stiff penalties for flag-bashing.

bl968 writes "Wired has an excellent article entitled "Fear of a Pay-Per-Use World" on the upcoming Librarian of Congress decision on granting exceptions to the DMCA anti circumvention provisions. The DMCA, which was enacted in 1998, bans the circumvision of technical protection measures like encryption systems and other methods designed to prevent access to copyrighted works. When the DMCA was passed it contained, a delay to the date the anti-circumvention provisions take effect. This delay is about up and your comments are needed"

What will They think of next? Easier to start with what They've thought of previously. For instance: How is Steven King's online book experiment going? And speaking of Them, where lies the trend in The War Between The Pitiful RIAA and the Splendid Universities? And when will They realize that I don't want to talk into my address book, even if that's a PDA? Those people have a lot to answer for.

Allegedly U.S. $299, allegedly end-of-year, allege, allege. Good news for those of us equipped with the quaint alternative to Palm Computing's organizers, even if less than impressed by most combination PDA / phone attempts -- InaneBoy writes: "Handspring's got a bunch of pictures and details of their new 'Visor Phone' Check it out! Super-keen!"

Of course, hemos is right -- there's a reason that most phones aren't as wide as your average PDA. This one looks like a reasonable -- if expensive -- way to combine the two items, especially if it will work with the combination mic / speaker earbud things. (But shouldn't the people making Springboard modules be a little busier with my GPS reciever?)

Plus, many colleges have declined to ban copying machines, tape recorders and ethernet. carlocius writes: "It appears that my college, Michigan State University, just handed Metallica and Dr. Dre another loss in their attempt to get Napster blocked on large Universities. MSU's administators stated that the Acceptable Use Policy of the university already covers copyright issues and there is no reason for Napster to be banned before a trial. GO STATE!!!"

Likewise, jellings writes: "The University of Pennsylvania joined the ranks of leading universities who are refusing to shut down access to the Napster on their campus, according to an article from the university press. U Pres. Judith Rodin said that "banning the Internet service would go against the University's educational mission by denying students freedom of inquiry and expression" and pointed to the Digital Millenium Act for further justification, saying that limiting access is not her responsibility ("Internet service providers cannot be held accountable for illegal activity on their networks if they are unaware of the activity"). Although the awareness of the activity of the issue may be questionable, it is certainly good to see a big U not yielding to the demands of Dr. Dre & Metallica ..."

The list of schools refusing to buckle under keeps growing; campus admins and sysadmins seem justifiably adamant about letting their policies be dictated by corporate vulture groups. Bandwidth reasons may be another story entirely, though.

Of course, not everyone has the awesome power of ResNet behind them ... ca1v1n writes: "The awesome power of the record labels has come through again. The Offspring have cancelled their plans to distribute their next album for free, after legal action and the threat of a lawsuit from Sony music. Yahoo! news has the scoop. So much for protecting the artists' interests."

An enquiry into establishing a curve of electronic book sales ... Triumphant former astronomy student jamie points out this CNN story on the continuing book experiment by Stephen King, who is still selling his novel online. Here's a telling snippet:

...since the first installment's release July 24, the percentage of readers paying for their downloads has dropped from 76 percent to less than 70 percent for the second installment. Part three goes up on Monday.

jamie points out that 70 "but he's giving us part 3 anyway. The more telling figures: 172,004 people had paid for part one and 74,373 people had paid for part two."

maomoondog pipes in: "Apparently, King's company is upset that too few of the downloads are being paid for. Stephen King comments on the progress here. Personally, I'm impressed that 70% of the downloads are being paid for. With as low a per-item cost as a text download is, the author should really clean up in this sort of arrangement."

If you're one of the 172,004, liked the story, but are not part of the 74,373, please consider joining the second group on jamie's behalf, because as he says: "It's actually not a bad story and I want to see how it ends :)"

richardbowers writes "The Library of Congress has posted the replies it received to comments collected about DMCA enforcement. Kudos go to several individuals who submitted comments, people who have also been strong contributors to the OpenLaw discussions on these topics. Big business is also represented. If you have missed the last fifteen Slashdot stories on the aim of big business to take away ownership and replace it with rental, you can see it again here. Since the reply period is now closed, you will need to take up your disgust with your Senator or Representatives, or just give something to the EFF to help them defray the costs of the inevitable and continuing lawsuits."

qbasicprogrammer writes: "Vital Source Technologies is now providing time-limited medical textbooks to universities. Password protected books as predicted in The Right To Read by Richard Stallman are finally becoming a reality." Starting on Oct. 28, (when the other part of the DMCA comes into effect), you could face a civil lawsuit and criminal penalties of up to five years in jail and a fine of $500,000 for reading someone else's textbook. See the NYU FAQ, the Advogato discussion, or the company crowing about new revenue opportunities.

dmd writes: "Does there exist Open Source software for maintaining a small to medium sized library card-catalog? It seems all the tools are available: a perl module for working with MARC records, several for working with Z39.50 and XML, and even a web site apparently devoted to nearly this exact topic. An actual, working, catalog, however, seems to be missing. Is this something that would be valuable? I, for one, have nearly 5k volumes in my collection, and they're begging for some discipline." I'm sure cash-strapped public libraries and schools would like to be able to use free / Free tools for this, since paper books aren't going away anytime soon. Not to mention for CDs, videos, charts, museum holdings ... any ideas out there? Turnkey solutions?

dmd writes: "Does there exist Open Source software for maintaining a small to medium sized library card-catalog? It seems all the tools are available: a perl module for working with MARC records, several for working with Z39.50 and XML, and even a web site apparently devoted to nearly this exact topic. An actual, working, catalog, however, seems to be missing. Is this something that would be valuable? I, for one, have nearly 5k volumes in my collection, and they're begging for some discipline." I'm sure cash-strapped public libraries and schools would like to be able to use free / Free tools for this, since paper books aren't going away anytime soon. Not to mention for CDs, videos, charts, museum holdings ... any ideas out there? Turnkey solutions?

FatouDust writes: "Wired News reports that the RIAA has reversed its position on copyright law. Last November, the recording industry lobby quietly slipped a passage deep into the Satellite Home Viewer Improvement Act of 1999, that classified sound recordings as work for hire -- effectively preventing copyright from reverting to the artist after 35 years. After protest from artists such as Sheryl Crow and Don Henley, and Congressional hearings in May, it looks like the RIAA is now ready to recommend to Congress that the revision be stricken from the books by the end of the year." I wonder what changed their minds.

Manjit writes: "An article on Yahoo! reports that Sen. John McCain (R-Ariz.) has introduced an Internet Privacy Bill which would require Web sites to disclose how personal information will be used. I'm not really much for government regulation but I think that the privacy problems will not be resolved without laws forcing businesses to safeguard personal data. My favorite quote from the article: 'The bill would enable consumers to sue Web sites who violate the bill's agreements to sue for up to $22,000.' This would be great! The best way to get businesses to follow the rules is to hit their bottom line if they don't."

The actual bill text isn't available online yet (I think it'll show up here), so I'd be remiss to start evaluating it. I also don't see anything yet at EPIC.

Keep in mind that McCain is the same senator who in January 1999 introduced a bill to withhold e-rate funds from schools and libraries who did not install censorware. That bill's stalled, but he introduced an amendment last month with the same idea. The government giveth with one hand and taketh away with t'other.

Manjit writes: "An article on Yahoo! reports that Sen. John McCain (R-Ariz.) has introduced an Internet Privacy Bill which would require Web sites to disclose how personal information will be used. I'm not really much for government regulation but I think that the privacy problems will not be resolved without laws forcing businesses to safeguard personal data. My favorite quote from the article: 'The bill would enable consumers to sue Web sites who violate the bill's agreements to sue for up to $22,000.' This would be great! The best way to get businesses to follow the rules is to hit their bottom line if they don't."

The actual bill text isn't available online yet (I think it'll show up here), so I'd be remiss to start evaluating it. I also don't see anything yet at EPIC.

Keep in mind that McCain is the same senator who in January 1999 introduced a bill to withhold e-rate funds from schools and libraries who did not install censorware. That bill's stalled, but he introduced an amendment last month with the same idea. The government giveth with one hand and taketh away with t'other.

Manjit writes: "An article on Yahoo! reports that Sen. John McCain (R-Ariz.) has introduced an Internet Privacy Bill which would require Web sites to disclose how personal information will be used. I'm not really much for government regulation but I think that the privacy problems will not be resolved without laws forcing businesses to safeguard personal data. My favorite quote from the article: 'The bill would enable consumers to sue Web sites who violate the bill's agreements to sue for up to $22,000.' This would be great! The best way to get businesses to follow the rules is to hit their bottom line if they don't."

The actual bill text isn't available online yet (I think it'll show up here), so I'd be remiss to start evaluating it. I also don't see anything yet at EPIC.

Keep in mind that McCain is the same senator who in January 1999 introduced a bill to withhold e-rate funds from schools and libraries who did not install censorware. That bill's stalled, but he introduced an amendment last month with the same idea. The government giveth with one hand and taketh away with t'other.

We keep getting submissions about bills in Congress to ban the distribution of any information on how to manufacture illegal drugs. The story of this is kind of humorous. The bill was having trouble on its own, so it's been grafted onto a bill called the "Bankruptcy Reform Act of 2000" -- this bill goes on for 50 pages about modifications to bankruptcy laws (to make it harder for consumers to declare bankruptcy, naturally), then suddenly has a whole section on illegal drugs, then goes back to bankruptcy. It's the censorship law that won't die. Even more disturbing, a tiny little rider in the bill alters the general requirements for search warrants so that you need never be informed of a search -- notification can be delayed indefinitely, which is a fundamental violation of the Fourth Amendment. In any case, it's in real danger of passing, so it's something you ought to pay attention to. We've done some grafting ourselves of some of the submissions related to this ...

First, as always, you can read the bills yourself by going to Thomas. Key in "methamphetamine" or "bankruptcy." Here's a direct link to the Bankruptcy Reform Act, and there's a link to HR 2987 in a submission below. Places like DRCNet aren't too happy about the bill, but neither are civil liberties groups -- the EFF has a nice overview of the whole situation in their last newsletter as well.

Vince Beiser writes: "New story from MotherJones.com: Speed Limit: A bill banning Internet sites that publish or even link to drug-making information looks set to sail through Congress -- to the dismay of free-speech advocates. Read the story." Mother Jones has also recently published an update to this story. If you only read one link off this story, it should be this one.

wrenling writes: "Right now HR 2987 is before the House Judiciary Committee. The bill is marked as an anti-methamphetamine proliferation bill. Without getting into discussions of whether or not drugs should be legal, attention needs to be drawn to the rider that is attached to the bill which according to the ACLU would allow the following:

Free Speech is at Risk. H.R. 2987 would also allow the government to order Web sites censored and shut down without any due process of law and without any notice given to the website's owner. One provision of the bill would allow agencies like the FBI to make judgment calls on the intent of online statements regarding drug use -- a power usually reserved for the courts. Internet service providers would then be ordered by law enforcement to take down any of these statements within 48 hours -- without notifying the Web site owner -- or be considered in violation of the law.

It's not only things like DMCA we have to watch out for, but for little riders on other legislation that, if enacted, could be used to further grant the United States government censorship powers."

Eric the .5b writes "Do we geeks really care, and do we geeks really matter?

The Methamphetamine Anti-Proliferation Act, described here and here, is still in committee in the House as we speak. A similar bill sailed through the Senate last year, and if this goes through, the two should be very easy to reconcile into a final version and get made into law.

• This bill,
• HR 2987, would:
• Allow police to search your home or business without so much as notifying you that you are under investigation or that such searches have taken place for as long as six months,
• Allow investigators to make copies of your documents and computer files without ever notifying you,
• And make it illegal to distribute information about how to make any controlled substance, to merely link to Web pages giving information on that or drug paraphenalia, or to even just describe how to find such information.

If we want to do something about this, we have an excellent opportunity. Both the Committee on Commerce and the Committee on the Judiciary (members listed here) are working on this legislative abomination. If you see your House representative (if you don't know your representative, like most of us, use the look-up) on either of these lists, contact him or her. E-mail or snailmail them if you like, but faxes and phonecalls will probably make the best impression. Be polite and very nonthreatening, but make it clear that you vote, and that you don't like this bill. Be sure to mention the title and number (The Methamphetamine Anti-Proliferation Act and HR 2987). Even if you don't see your representative on the lists, it couldn't hurt to bug the chairpersons of the committees. Lastly, pass this info around to anyone you know who might care. The more displeasure the representatives hear, the less attractive doing anything but killing this bill will be."

We keep getting submissions about bills in Congress to ban the distribution of any information on how to manufacture illegal drugs. The story of this is kind of humorous. The bill was having trouble on its own, so it's been grafted onto a bill called the "Bankruptcy Reform Act of 2000" -- this bill goes on for 50 pages about modifications to bankruptcy laws (to make it harder for consumers to declare bankruptcy, naturally), then suddenly has a whole section on illegal drugs, then goes back to bankruptcy. It's the censorship law that won't die. Even more disturbing, a tiny little rider in the bill alters the general requirements for search warrants so that you need never be informed of a search -- notification can be delayed indefinitely, which is a fundamental violation of the Fourth Amendment. In any case, it's in real danger of passing, so it's something you ought to pay attention to. We've done some grafting ourselves of some of the submissions related to this ...

First, as always, you can read the bills yourself by going to Thomas. Key in "methamphetamine" or "bankruptcy." Here's a direct link to the Bankruptcy Reform Act, and there's a link to HR 2987 in a submission below. Places like DRCNet aren't too happy about the bill, but neither are civil liberties groups -- the EFF has a nice overview of the whole situation in their last newsletter as well.

Vince Beiser writes: "New story from MotherJones.com: Speed Limit: A bill banning Internet sites that publish or even link to drug-making information looks set to sail through Congress -- to the dismay of free-speech advocates. Read the story." Mother Jones has also recently published an update to this story. If you only read one link off this story, it should be this one.

wrenling writes: "Right now HR 2987 is before the House Judiciary Committee. The bill is marked as an anti-methamphetamine proliferation bill. Without getting into discussions of whether or not drugs should be legal, attention needs to be drawn to the rider that is attached to the bill which according to the ACLU would allow the following:

Free Speech is at Risk. H.R. 2987 would also allow the government to order Web sites censored and shut down without any due process of law and without any notice given to the website's owner. One provision of the bill would allow agencies like the FBI to make judgment calls on the intent of online statements regarding drug use -- a power usually reserved for the courts. Internet service providers would then be ordered by law enforcement to take down any of these statements within 48 hours -- without notifying the Web site owner -- or be considered in violation of the law.

It's not only things like DMCA we have to watch out for, but for little riders on other legislation that, if enacted, could be used to further grant the United States government censorship powers."

Eric the .5b writes "Do we geeks really care, and do we geeks really matter?

The Methamphetamine Anti-Proliferation Act, described here and here, is still in committee in the House as we speak. A similar bill sailed through the Senate last year, and if this goes through, the two should be very easy to reconcile into a final version and get made into law.

• This bill,
• HR 2987, would:
• Allow police to search your home or business without so much as notifying you that you are under investigation or that such searches have taken place for as long as six months,
• Allow investigators to make copies of your documents and computer files without ever notifying you,
• And make it illegal to distribute information about how to make any controlled substance, to merely link to Web pages giving information on that or drug paraphenalia, or to even just describe how to find such information.

If we want to do something about this, we have an excellent opportunity. Both the Committee on Commerce and the Committee on the Judiciary (members listed here) are working on this legislative abomination. If you see your House representative (if you don't know your representative, like most of us, use the look-up) on either of these lists, contact him or her. E-mail or snailmail them if you like, but faxes and phonecalls will probably make the best impression. Be polite and very nonthreatening, but make it clear that you vote, and that you don't like this bill. Be sure to mention the title and number (The Methamphetamine Anti-Proliferation Act and HR 2987). Even if you don't see your representative on the lists, it couldn't hurt to bug the chairpersons of the committees. Lastly, pass this info around to anyone you know who might care. The more displeasure the representatives hear, the less attractive doing anything but killing this bill will be."

We keep getting submissions about bills in Congress to ban the distribution of any information on how to manufacture illegal drugs. The story of this is kind of humorous. The bill was having trouble on its own, so it's been grafted onto a bill called the "Bankruptcy Reform Act of 2000" -- this bill goes on for 50 pages about modifications to bankruptcy laws (to make it harder for consumers to declare bankruptcy, naturally), then suddenly has a whole section on illegal drugs, then goes back to bankruptcy. It's the censorship law that won't die. Even more disturbing, a tiny little rider in the bill alters the general requirements for search warrants so that you need never be informed of a search -- notification can be delayed indefinitely, which is a fundamental violation of the Fourth Amendment. In any case, it's in real danger of passing, so it's something you ought to pay attention to. We've done some grafting ourselves of some of the submissions related to this ...

First, as always, you can read the bills yourself by going to Thomas. Key in "methamphetamine" or "bankruptcy." Here's a direct link to the Bankruptcy Reform Act, and there's a link to HR 2987 in a submission below. Places like DRCNet aren't too happy about the bill, but neither are civil liberties groups -- the EFF has a nice overview of the whole situation in their last newsletter as well.

Vince Beiser writes: "New story from MotherJones.com: Speed Limit: A bill banning Internet sites that publish or even link to drug-making information looks set to sail through Congress -- to the dismay of free-speech advocates. Read the story." Mother Jones has also recently published an update to this story. If you only read one link off this story, it should be this one.

wrenling writes: "Right now HR 2987 is before the House Judiciary Committee. The bill is marked as an anti-methamphetamine proliferation bill. Without getting into discussions of whether or not drugs should be legal, attention needs to be drawn to the rider that is attached to the bill which according to the ACLU would allow the following:

Free Speech is at Risk. H.R. 2987 would also allow the government to order Web sites censored and shut down without any due process of law and without any notice given to the website's owner. One provision of the bill would allow agencies like the FBI to make judgment calls on the intent of online statements regarding drug use -- a power usually reserved for the courts. Internet service providers would then be ordered by law enforcement to take down any of these statements within 48 hours -- without notifying the Web site owner -- or be considered in violation of the law.

It's not only things like DMCA we have to watch out for, but for little riders on other legislation that, if enacted, could be used to further grant the United States government censorship powers."

Eric the .5b writes "Do we geeks really care, and do we geeks really matter?

The Methamphetamine Anti-Proliferation Act, described here and here, is still in committee in the House as we speak. A similar bill sailed through the Senate last year, and if this goes through, the two should be very easy to reconcile into a final version and get made into law.

• This bill,
• HR 2987, would:
• Allow police to search your home or business without so much as notifying you that you are under investigation or that such searches have taken place for as long as six months,
• Allow investigators to make copies of your documents and computer files without ever notifying you,
• And make it illegal to distribute information about how to make any controlled substance, to merely link to Web pages giving information on that or drug paraphenalia, or to even just describe how to find such information.

If we want to do something about this, we have an excellent opportunity. Both the Committee on Commerce and the Committee on the Judiciary (members listed here) are working on this legislative abomination. If you see your House representative (if you don't know your representative, like most of us, use the look-up) on either of these lists, contact him or her. E-mail or snailmail them if you like, but faxes and phonecalls will probably make the best impression. Be polite and very nonthreatening, but make it clear that you vote, and that you don't like this bill. Be sure to mention the title and number (The Methamphetamine Anti-Proliferation Act and HR 2987). Even if you don't see your representative on the lists, it couldn't hurt to bug the chairpersons of the committees. Lastly, pass this info around to anyone you know who might care. The more displeasure the representatives hear, the less attractive doing anything but killing this bill will be."

PerlDiver writes: "Free speech online scored a major win Wednesday. A federal judge ruled that ISPs are not responsible (under Section 230 of the CDA) for the content of Web sites hosted using their services. This goes a long way to removing the incentive for service providers to proactively censor such sites. (Interestingly enough, the case in question involved sites selling tapes of nude college athletes, shot in locker rooms without their knowledge.)" We've seen a number of cases like this, where an offended party tries to target the deep pockets of the ISP rather than the actual offender - that section of the CDA seems to be working as designed, however, to prevent these.

Last week you asked online activist Scott Reents about his organization The Democracy Project, about online political action, about the worth of political involvement in general. He's obliged with some lengthy, thoughtful answers. If nothing else, his words should give you pause when you vote -- or don't.

Query
by Modern_Celt

Considering the speed of internet communication is this going to make it even more difficult for those in the Western states to care about the election? After all, most of the networks already predict a winner LONG before the poles out west close.

Scott Reents: Internet or no Internet, your individual vote is mathematically meaningless in determining the outcome of an election anyway, and exit polls already exist to remind you of this fact.

Still, the speed of the Internet is an important factor in our overall participation in politics. For example, MoveOn was able to organize and channel millions of people opposed to Clinton's impeachment in a matter of weeks. Normally, organizations can't mobilize their membership around pending legislation or regulations, because the window of opportunity before they are enacted is too small. This makes a truly grassroots organization an impossibility without the Internet, because there must always be organizational management to serve as proxies to (hopefully) represent their members interests.

How does the medium change the message?
by Squirrel Killer

I think most of us have a pretty good understanding of the ways in which the Internet affects the method of political communications. Instead of phone banking and lit drops, you can use e-mail lists and Web sites, to cite just two examples.

However, the more interesting question, in my mind, is how the Internet, as a medium, affects the message. How do you view political content changing as a response to the new methods available? Will political content move more to the extremes, since politicians can target more effectively, or will it move more mainstream, since more people are brought into the political arena.

Beyond the message, how will the internet affect political outcomes? Are there any potential policy options that become possible with the new methods available?

Scott: Will the Internet affect the "message" of political communication? Absolutely.

The medium is the message, which is to say that the characteristics of the Internet imply that certain messages work and certain messages do not work. The fact that there is so much choice on the Internet means that messages that are pure rhetoric and are not informative do not work; users can and will click elsewhere. The fact that hyperlinking is so common means that messages that don't link to supporting material are assumed to be hiding something. The fact that online publishing is so inexpensive means that users won't accept superficial explanations of positions and values.

Politicians CAN continue to make Web sites that are nothing more than glorified brochures, but who will visit them? Right now, I think that people visit them for the novelty, and because they don't really know what to expect, but that will not last if they continue to treat their users like fools.

Now, you raise an interesting point about the impact of politicians being able to "target" more effectively. To talk to most Internet marketers/campaigners these days, you'd think that "targeted" communication was the essence of the Internet, and was the highest form of interactivite communication. Wrong. Targeted communication is not of the Internet. It is of direct mail. It's a method used to improve response rates (like, from 3% to 4%, a 33% improvement!), to save money on postage, to hit the right hot buttons, blah, blah, blah. And it's not interactive; the communication is essentially as one way as broadcast television -- just more accurate.

Which is to say that I agree with your suggestion that targeting results in more extreme messages and a more stratified electorate, and I think that's dangerous.

It's also the way that the Internet politics space will move if left to develop by itself. In the last 12 months, sites like Grassroots.com ("Your political action network"), Voter.com ("Delivering democracy to your desktop"), Speakout.com ("Speak Out. Be Heard."), Vote.com ("Your vote will always be sent where it counts"), have all started with the premise of being able to aggregate site users and then sell targeted access (via e-mail, banner ads, etc.) to political campaigns, a prospect that I think is unhealthy for democracy.

That's why I wrote the essay -- to describe the way that political campaigns SHOULD be using the Internet for communication, and to try to set a higher standard for what people expect online. I don't think that an Internet of primarily targeted political messages is an inevitability, but it certainly is a possibility.

Will candidates ever really do this?
by El Volio

Interesting article. As a fairly neutral U.S. citizen, it occurs to me that, to many, the ideas expressed here are applied versions of general democratic ideals. Most voters would like to see more information about what candidates actually are proposing, and many want objective comparisons from unbiased sources.

But that's not politics. Never has been, and probably never will be.

So here's the question: Do you think that candidate sites are ever actually likely to provide objective data? Or do you think there will ever be a truly unbiased, trusted source (perhaps like the way the media should be) where specific information about tax cut proposals and so forth will be located?

Scott: You've exposed the dirty little secret of my essay, which is that I expect that 90% (at least) of politicians currently running would ignore my advice, should they read and understand it. So you're right in once sense; there are very few candidate sites today that remotely do what I prescribe, and most political advisers would consider such steps suicide because they violate the most important rule in their book: don't give up control.

But I don't think that means that it won't happen, any more than the fact that Microsoft hasn't supported open software means that open software isn't happening. My argument is simply that the traditional mode of campaigning doesn't work very well on the Internet, and so those that continue in the traditional mode will have to do so somewhere other than the Internet. And as important as this medium is becoming, that is a more and more unsustainable strategy.

And there are examples of candidates who are doing the right things. Ventura took some baby steps in the right direction with his e-mail lists. This Congressional candidate in Idaho is doing a very good job of running a citizen-centric campaign on the Internet, and so far succeeding. I'm sure there are others, though they are still few and far between. You will see more and more of them, and if you don't, you should consider starting your own. There are also 6,700 unofficial candidate sites put up by individuals that could potentially do things that the candidate would never allow his official site to do.

Let me also clarify one point, which is that I'm not suggesting that candidates build sites that are purely unbiased presentations of information. No, there is clearly still a role for opinion and leadership and values, but the best sites will present these in the context of information that people are looking for.

Candidates would be smart to try to emerge as reliable framers of issues -- the ones that attempt to set the scope of the problem, identify relevant evidence, outline competing values, etc. This is one of the most powerful positions to be in, but you can only do this if respect opposing viewpoints and treat them fairly. Frames are never the Congressional and state level, that people will be able to demonstrably say that the Internet had a measurable impact on the outcome of elections.

More importantly, the 2000 elections are key because they will begin to set the standard for political communication on the Internet. Millions of dollars is being invested in building online political resources -- campaign-oriented, commercial, nonprofit, government, etc. -- and the way that that is invested will have a tremendous impact over the way the political Internet develops over the next 20 years.

Will it be a commercial Yahoo model of aggregating lots of users and then auctioning off access to them to the highest bidders? Will it be a broadcast model, trying to attract as many eyeballs without giving up any real control? Or will it be a civic model, empowering citizens to take a more meaningful role in the running of the government?

If it is the latter, I believe that it could have far-reaching impacts on many facets of politics, from the two-party system to the role of soft money and PACs to the types of legislation that gets enacted.

detailed content
by geekpress

One reason, in my opinion, that politicians don't provide detailed content on their Web sites about policy proposals is the concern that what they say will come back to bite them, a la "No New Taxes." Concrete policy proposals can be used against them once in office, for it is easier to measure someone's actions against written statements than soundbytes and speeches.

So, given this strong incentive to keep proposals vague, what other incentives can we offer politicians to pony up the details of their plans for us?

Scott: You're absolutely right, that politicians are wary of detailed proposals coming back to bite them, although I'd say "no new taxes," was missing some of the elements of a detailed proposal (like, detail).

Getting politicians to offer more detail requires that citizens have a way of demanding more. Imagine if there were a forum open to all candidates who agreed to abide by the rules of the forum -- citizens ask the questions, are allowed follow-up questions, and candidates can answer or not, but the entire forum is aware of what you answer and don't. Well, no candidates would come, because candidates insist on control over the information they have to give up. What if, however, the forum contained 10%, 20%, or even 50% of the likely voters. I bet you'd see a lot more interest. There would be the credible threat that at least one candidate (particularly the one who was trailing in the polls) would show up, and then all candidates would be forced to show up. I propose that that forum can be built on the Internet, and I bet some of you are smart enough to come up with a way to figure out which questions to ask.

Politicians are opportunistic; they will do what they need to do to win. So, the answer to getting them to pony up more information is to make it a necessary component of winning.

The truth is, there is a subtle collusion between politicians and traditional media. Traditional media want to make money from politicians showing up on their talk shows, buying ads, granting interviews, participating in debates, and they don't care deeply about making these things particularly meaningful. Thus, politicians hold the upper hand -- as long as they can deliver entertainment (ala sound bytes, debate one-liners, etc.) -- they do not have to give up any real control. Politicians give media what they want; media gives politicians what they want.

Is Internet driving a societal shift?
by Noel

In your essay you say, "the expectations of people on the Internet are different and more demanding than citizens' expectations in general."

Are these higher expectations a result of being on the Internet, or does Internet access self-select people that have higher expectations?

Will the influx of people onto the Internet raise the expectations of the general populace, or will it dilute the expectations of the Internet community?

Scott: It's a little bit of both. However, I believe that higher expectations is more a result of the medium than of the particular people who have chosen to use the medium. I'm not saying that the Internet improves people -- makes them more critical, more involved, more interested in learning, better judges of argument -- but I am saying that on the Internet a message transplanted from "traditional media" doesn't look right to most Internet users.

In my research into Internet behavior, I've found that there is about am 18-month period of acclimitazation online, after which people are much more likely to do more "sophisticated" activities (e.g., personalizing information, registering, purchasing, changing default start-up pages, etc.), and this observation holds true as much for the people who first went online in 1996 as it does for the people who just went online last year.

This suggests to me that people's expectations and use of the medium is not set when they come online, but rather evolves over time. I believe that this increased sophistication comes with an increasing degree of impatience: people understand what types of sites work and what type don't, and they leave sites that don't.

Why are libertarians better represented on the net?
by Russ Nelson

So why do Internet political polls always generate results which are more skewed towards the libertarian philosophy? Is it because they don't "count" and so people feel more free to vote how they feel? Or is it because people who are drawn to the net value freedom more than security?

Scott: Most Internet polls do a very poor job of being scientific, so I would be very wary of concluding that Harry Browne's apparent popularity among Internet users is real. The most important factor, in my opinion, is that non-mainstream parties like the Libertarians do better in Internet polls because these marginilized groups feel a greater desire to participate in these polls, as a way of generating awareness for their movements.

Still, there is certainly a more libertarian ethic on the Internet, and in the same way that I think that people become more sophisticated with time, I think that people begin to value the freedom of the Internet with time. In my experience, the strongest advocates of regulating speech on the Internet are those who have the least amount of experience with it. However, if you look at party affiliations, voting behavior, etc. of Internet users, it's what you'd expect from a group of people with above average education and income (Pew Research has done some nice, though a bit dated research on the subject).

Realistically, does the net matter?
by neowintermute

Can we realistically say that the Internet is making a difference in the political process? Can a basically unknown candidate like Ralph Nader get a resonable number of votes thanks to just his web site? Or are people really just going to the Web sites of the candidates they hear about on television? In the closed capitalist mind space we inhabit, big monetary interests determine the range of possibilities people think are viable.

According to a recent IBM/Altavista study, even on the net the big money sites like Yahoo "basically control the flow of information". So can we really think that the net is going to suddenly bring us democracy despite the nondemocratic nature of our entire economy/political system?

Scott: I wouldn't go so far as to say that our economic-political system is nondemocratic. I'd be the first to say that there are aspects that don't work as well as we'd like, but these are easily outweighed by the institutions and processes that are democratic.

Still, the degree to which information is controlled by corporate interests is disturbing. Ralph Nader is unlikely to get many votes just because of his Web site, and he's someone with actually quite a bit of promotional muscle behind him. One of the main reasons is that the traditional method of finding information on the Net, the search engine, tends to reinforce the hierarchies of offline power structures

To me, this says that the Net will not matter if left to develop in its "natural" commercial fashion. Because this is an election year, there is a unique opportunity for efforts that define the political Internet outside of this commercial environment. Millions are for the first time looking for political information and interaction, which means that it's not nearly as difficult (ie, expensive) as it has been/will be to get a site that captures a fair amount of this traffic. And if done correctly, ie, in a citizen-centric fashion, such a site should be able to use this jump-start to create a community that endures and matters. Anyway, that's the bet I've taken in leaving my .com job (and stock options) to start the Democracy Project.

I'm sure most of you are cognizant of the power -- commercial, political, spiritual, whatever -- that slashdot has. In pitching the Democracy Project to foundations and other "civicly-minded" folks, I almost always point to slashdot as an example of the potential power of the Internet.

Slashdot gives the average person the ability to address a forum of hundreds of thousands of people. I contend that that is unique in the history of the world, and that development is revolutionary in the way that Gutenberg's printing press was revolutionary.

What about a Slashdot for politics? Is there a space for something like this? Absolutely. In fact there is probably room for many Slashdots for politics. In its own way, Slashdot is arguably already a Slashdot for politics, with the discussions about Columbine, digital copyright, CDA, etc. Now, I know that the idea of Slashdot as a political forum is a controversial one, so I'm not saying that Slashdot should be more political. I'm just saying that the model has already shown that the Internet has the potential to effect meaningful change on the way our political system works.

noted
by jbarnett

It has been noted that Al Gore is popular among geeks for many reaons, for example he invented the Internet, runs Linux on his Web site and hides cool little things in his HTML source. What do you think other Presidential candidates have to do or are doing to "compete" with Al Gore for the Geek vote?

Bill Clinton raised a lot of votes by "reaching out" to the Youth of America, do you think Al Gore will continue to "reach out" to the Geeks of America in the same aspect as Clinton did a few years back?

In your personal opinon who is the more 31337 hAx0r: Gore or Bush? And Finally the question everyone is dying to know the answer to: If pited against each other in a roman style caged deathmatch, who would win, Gore or Bush?

Scott: I certainly hope that geeks will base their voting decisions on more than what operating system a candidate's Web site is running. In all likelihood, Al Gore had nothing to do with that decision, and the fact that his Webmaster hides cool things in his HTML will not have any impact on what Gore might or might not do as president. These things are almost entirely symbolic, which isn't surprising since the majority of discourse among the presidential candidates is symbolic rather than substantive.

Of course, Al Gore will "reach out" to the youth of America, but the question is, will he do it in a way that matters or will it be mostly about posting pictures of Al in front of a computer on his Web site? Bush, too. I see them in a dead heat for last in truly reaching out to the YOA.

Now, as for the roman-style caged deathmatch, do you mean Catharginian or Syracusean rules?

'Ender's Game'
by ZetaPotential

A system very similar to what you advocate has been described in some detail in Orson Scott Card's book Ender's Game. In that book, Card describes online bulletin boards where people "share information, organize and build consensus around issues," to quote your essay. A central part of this book is that two genius pre-teens write intelligent posts and counterposts in a way that manipulates public opinion on crucial political issues, for their own advancement.

So, my question is this: If someday the majority of people formulate their political opinions based on what they read in forums similar to Slashdot, will it be possible for individuals or organizations to manipulate the "public discourse" in such a way that advances their own agendas? If so, what type of steps would you advocate to reduce this type of "political trolling"?

Scott: A friend showed me Ender's Game, and I agree that what I'm advocating has a lot in common with that vision of political discourse. Clearly, there are some very difficult questions about how you preserve the sanctity of an online "townhall," and I'd be lying if I said I knew all the answers, but I do have some thoughts.

One thing they didn't do in Ender's Game was to verify that each participant on the boards was unique. There should have been a way to verify that people were unique individuals in such a way that still allowed them their right to anonymity. This would have kept Peter and Valentine from using fake identities to serve as foils and practice posters. This kind of anonymous authentication would be an important feature of an online townhall.

Ultimately, however, the real threat they posed is was a result of their geniuses and proclivity to manipulate. There will always be demogogues, and keeping them from masquerading won't keep them from manipulating. Caveat emptor.

There are lots of other vulnerabilities in an online townhall, but I think the most dangerous is the power that the "management" has to use the rules of the townhall to serve their own interests. Absolute vodka, er power, corrupts absolutely, as they say. There need to be safeguards to ensure that the people who set the rules are ultimately accountable to the people who use the site. For example, at the Democracy Project we are designing our site to have as little management involvement as possible. There are certain management powers that exist on Slashdot (e.g., bitchslapping) that we don't think belong in an online townhall. We have also organized ourselves legally in such a way that we will allow registrants on our site (after it has critical mass) to remove the management in a vote of no-confidence. We don't expect this to be a regular event, but it's a safeguard that provides a last resort of accountability.

Candidates and their records
by Remus Shepherd

You talk about what the political parties should do to improve their Web sites, but don't mention what people outside political circles can accomplish. The Web sites you list in your article do *not* have what everyone says they want: An unbiased checklist of issues referenced to the candidates and their voting record.

Forget the political parties for a moment, as I don't believe they'll ever report unbiased information. That leaves us, the people.

Do you think there is room for a grassroots organization to collect the voting histories of candidates and publicize their records? If so, why doesn't such an organization already exist? Could such an organization thrive, or would it be besieged by political candidates who don't want their true voting histories known?

Scott: First, there are already sites that collect and report the candidate's records. I recommend USA Democracy, Project Vote-Smart, and THOMAS as excellent sources of info on candidate positions, voting records, and public statements.

But your broader question is important, because I think that as valuable as these and other political information sites are, they leave a gap that could (should) be filled by a grassroots effort.

The unbiased checklist of positions is a good, but incomplete way to make voting decisions. It's unlikely to include references to the most current, relevant issues. It overly reduces the complexity of how legislators make voting decisions (the best policy makers are generally not dogmatic and are good compromisers). And the list of issues is defined and arbitrary, which makes you wonder who got to decide which issues to include on the list.

So, the gap to me is the open, online townhall, an alternative source of information and political deliberation, an example of which we've described at our Web site, and are currently developing. This would allow everyone the opportunity to offer their own checklists, or point to others who have developed checklists that they agree with. But in addition, it would allow discussion of the most current events, and more importantly, the competing values that underlie policy proposals, neither of which will ever be adequately addressed by a position checklist.

Can such an organization thrive? I believe so. Grassroots organizations draw their strength from their membership, and so are not dependent on the approval of candidates in order to exist. So long as such an organization could provide a valuable service to its membership, it could endure. In fact, I'd say that such an organization would HAVE to be grassroots, because it must be independent of the political players in order to be effective. Lack of grassroots support is one of the reasons why it's unlikely that USA Democracy, Vote-Smart, THOMAS, and the commercial sites discussed above will realize the full vision of the Citizen-centric Internet.

Thanks all. If you want to be alerted when we launch our site, sign up here

Scott

www.democracyproject.org

Anonymous Coward passed along an interesting bill in the U.S. House which he says will be voted on tomorrow (Tuesday). The original H.R. 1291 limited the FCC's powers. This amendment adds language that could be interpreted to expand the FCC's jurisdiction to include voice-over-IP transmissions. This page, at least, evinces great fear over that possibility. But I don't think that's what it means. Read more...

What pulver.com says is that H.R. 1291 "caves in to the Bell Companies and opens the door for the FCC to regulate and impose access charges on IP voice services." But what does the bill really say?

The original bill prohibits the FCC from taxing service providers by the minute:

"...the Commission shall not impose on any interactive computer service ... or other information service provider any access charge for the support of universal service that is based on a measure of the time that telecommunications services are used in the provision of such interactive computer service or information service."

The amendment, which is what is being protested, changes "interactive computer service or other information service provider" to "Internet access service." But the change that's causing concern is the final paragraph which was added by Rep. Fred Upton (R-MI):

"Nothing in this subsection shall preclude the Commission from imposing access charges on the providers of Internet telephone services, irrespective of the type of customer premises equipment used in connection with such services."

OK, so it's saying that this bill will not prohibit the FCC from regulating voice over IP - but since when does it have that power to begin with?

Does the bill's language give the agency that power? Does it hint that maybe in future the feds will crack down on multiplayer games with voice messaging, or PGPvoice?

Or, is it just, as one slash coder commented, "like telling the FCC they are not prohibited from taxing waffle irons" -- a silly and unnecessary piece of CYA?

I don't think it's either. I spoke with Dave Farber at the FCC, and he indicates the agency is not interested in regulating the internet. It's historically been very hands-off and there's no reason to think that will change. This pending legislation seem to be just Congress's way of saying "we're not ruling anything out" -- it doesn't mean that such regulation is on the horizon. So there's no cause for panic.

Update: CNET's story is the paranoid version; ZDnet's is a little more reasonable.

Andy Oram of CPSR has has a nice reply comment to the Copyright Office's Anti-Circumvention Rulemaking. As slashdot has discussed before, the Copyright Office has a mandate to examine a part of the Digital Millenium Copyright Act and decide whether and how to implement it. If you haven't commented, today is your last chance - see the notice for the requirements for filing, and mark your submission as a reply to, say, Time Warner's comment. I just read an article noting that Stephen King would be in violation of this provision of the DMCA if he read his own e-book.

Andy Oram of CPSR has has a nice reply comment to the Copyright Office's Anti-Circumvention Rulemaking. As slashdot has discussed before, the Copyright Office has a mandate to examine a part of the Digital Millenium Copyright Act and decide whether and how to implement it. If you haven't commented, today is your last chance - see the notice for the requirements for filing, and mark your submission as a reply to, say, Time Warner's comment. I just read an article noting that Stephen King would be in violation of this provision of the DMCA if he read his own e-book.

Andy Oram of CPSR has has a nice reply comment to the Copyright Office's Anti-Circumvention Rulemaking. As slashdot has discussed before, the Copyright Office has a mandate to examine a part of the Digital Millenium Copyright Act and decide whether and how to implement it. If you haven't commented, today is your last chance - see the notice for the requirements for filing, and mark your submission as a reply to, say, Time Warner's comment. I just read an article noting that Stephen King would be in violation of this provision of the DMCA if he read his own e-book.

mdonaghy writes: "The EFF and the U.S. Copyright Office are looking for [further] public comments on the DMCA, as stated in this EFF alert. The deadline for comments is Friday, March 31. This should be a good place to voice our concerns about copyrights that several readers have previously voiced in Slashdot forums." (more)

Though the DMCA was signed into law in 1998, the rules of engagement are still being debated. This is your chance to make "reply comments," and address the arguments raised by the entertainment giants. The EFF link above sorts important previous comments straightforwardly into "pro-freedom" and "anti-freedom," for obvious reasons.

If you haven't yet added your voice, you now have nearly two weeks to do so. You might want to read the thread about the last round of comments on the same issue, and emulate the comments you find most persuasive.