Slashdot Mirror

vectro writes, "Well, the copyright office has published all the comments they've received. It looks like all the comments are pro-consumer, with the exception of those from media companies: Time/Warner (movies), Sony Computer (interestingly, comments focus on Playstation rather than movies or music), and the MPAA." These are in .pdf format, so you'll need Acrobat Reader.

vectro writes, "Well, the copyright office has published all the comments they've received. It looks like all the comments are pro-consumer, with the exception of those from media companies: Time/Warner (movies), Sony Computer (interestingly, comments focus on Playstation rather than movies or music), and the MPAA." These are in .pdf format, so you'll need Acrobat Reader.

vectro writes, "Well, the copyright office has published all the comments they've received. It looks like all the comments are pro-consumer, with the exception of those from media companies: Time/Warner (movies), Sony Computer (interestingly, comments focus on Playstation rather than movies or music), and the MPAA." These are in .pdf format, so you'll need Acrobat Reader.

vectro writes, "Well, the copyright office has published all the comments they've received. It looks like all the comments are pro-consumer, with the exception of those from media companies: Time/Warner (movies), Sony Computer (interestingly, comments focus on Playstation rather than movies or music), and the MPAA." These are in .pdf format, so you'll need Acrobat Reader.

vectro writes, "Well, the copyright office has published all the comments they've received. It looks like all the comments are pro-consumer, with the exception of those from media companies: Time/Warner (movies), Sony Computer (interestingly, comments focus on Playstation rather than movies or music), and the MPAA." These are in .pdf format, so you'll need Acrobat Reader.

Note: This is part one of a two-part series.

The Digital Millennium Copyright Act (DMCA) was passed by Congress and signed into law more than a year ago, but its true impact is only beginning to be felt. Corporatism squared off brazenly against the geeks, and handily won Round One. If you're wondering where your Napster really went, read more below.

The Digital Millennium Copyright Act is an especially devious title for one of the most significant pieces of Internet legislation yet passed. If you're looking for insight into how corporatism and politics work together to control software and technology -- and to potentially stifle free speech and individual choice -- you can't do better. Nor will you find a more textbook-perfect example of dubious, perhaps even unconstitutional, Internet law.

This is how the struggle over who owns ideas, software and intellectual property on the Internet will be waged; Round One in the battle that is pitting corporatism against the geeks. They won.

The DMCA -- largely the fruit of massive lobbying by the entertainment industry, including companies like Time Warner, Disney and other giants of recording and movie industry -- was passed quietly 16 months ago by a normally acrimonious Congress, and immediately signed by the President. Despite the law's profound and far-reaching implications, Clinton's signing of the measure drew little media attention, online or off, and only in the last few months has its impact begun to be felt.

Central to the law is a clause making it illegal to thwart copyright protection methods through the use of software or hardware. Without that power, argued the lobbyists for record labels, traditional publishers and film studios, their industries would be run out of business by the newly empowered Net generation. This is a generation, mostly young, who've discovered that they could create their own culture on the Net, and get the music they wanted rather than pick only from the choices preselected for them by the music industry. And for free, no less. Thousands of artists who wouldn't have gotten through the record industry's artist-selection machine suddenly had channels to distribute their work and find new audiences. Music software is a powerful example of how the Net gave individuals -- especially ones far removed from corporate models of culture and creativity -- a chance to be seen and heard. And it gave music lovers a chance to hear them as well.

And although the law passed more than a year ago (despite opposition to DMCA by the Electronic Frontier Foundation and other online free-speech activists, the Act's proponents and their lawyers took their time strategizing about exactly how to enforce and implement it.

This year, the gloves came off -- and suddenly people at colleges all over the country are wondering what happened to their Napster sites. Despite what many schools are telling their students -- often that downloading music simply takes up too much bandwidth -- the real reason for their actions is the DCMA.

Pointedly high-profile lawsuits have been filed recently, as the entertainment industry takes the lead in the war against free culture and the spread of forums for artists to disseminate their work -- at least artists the industry doesn't control. The industry has obviously done its homework, studying how software really works and how information moves, and is using the Digital Millennial Copyright Act as its primary weapon against infringement by people using the Net and the Web.

As a result, with little political opposition or discussion, the DMCA is already beginning to redefine entertainment on the Net, and regain control of popular culture, as corporatists move against free music and movie users. As someone who's been writing about First Amendment issues for years, it's hard to imagine a piece of legislation with greater implications for free speech as well as corporate control of intellectual content. This legislation seems to have anti-trust implications as well: how could any law more actively discourage creativity and competition?

If there is a silver lining in the use of the DMCA to dominate entertainment, it's that day by day, the political issues become clearer. Even though many open source advocates see themselves as technologically centered, rather than politically, the DMCA pits the free software movement, squarely against the commercialist threat to the free nature of the Internet. The corporatists grasp what many young programmers don't: Open source is a powerful political idea, and it's antithetical to the way many modern corporations have always worked.

"The anti-circumvention clauses fundamentally change the balance of copyright," Alex Fowlier of the EFF told USA Today's Bruce Haring earlier this week. "Now we're not just talking about rights to the work, but about tying it to the system it is displayed on, or plays on, or is distributed by. That's one level deeper into control than copyright has been associated with." Tying the distribution, display or performance of a work to a system "affects the users in ways we can't even imagine," says Fowler. "It really hampers the future growth of the Internet." It doesn't do much for the present either.

One reason free music sources proliferated so rapidly was that they often piggy-backed on educational and other sites where music seekers congregated. College students could download music on their schools' sites, in part because the schools believed they were simply neutral, non-liable carriers of content. Since there was no Internet law governing content on Web sites, nobody knew if that was true or not. But it certainly isn't true anymore.

The music industry and its lawyers understood that colleges and universities are powerful channels for commercial music, places where artists, bands and even musical genres are discovered and become popular. They realized they didn't have to shut down every free music site on the Net -- those on instant messaging services like ICQ or AIM, for example -- in order to sharply curb the spread of free music. They could use the DMCA as a way to focus on a smaller number of sites, and on universities and colleges. For an industry that garnered $15 billion in revenues last year, the cost of that focused effort is chump change.

Rather than targeting music distributors or downloaders, they lobbied successfully to get a law passed that made it illegal to thwart copyright protection methods in software and hardware. Music industry lawyers then began notifying colleges and universities that they might be in violation of federal copyright protection laws if they tolerated the existence of Napster and other means of music dissemination. Free music users, accustomed for years to downloading what they wanted, were caught unawares.

The DMCA went a step further, in a legally ingenious way. The law decrees that Internet service providers won't be liable for copyright infringement by their users if the providers remove offending material once they're made aware of it. It's that provision that gains entertainment companies so many powerful new allies in their war against "pirates" -- recruiting, in effect, all the institutions and sites that allow content redistribution, and turning them into culture cops. If they block free music, they're off the hook legally. If they don't, they're liable.

Some colleges seem to think they have a far greater stake in avoiding lawsuits than they do in confronting the real issues involved -- like promoting free expression and diversity in culture. And college students are selective in political issues. There is, for example, a broad-based anti-sweatshop movement on many U.S. campuses, but no equivalently passionate and nationally-organized movement to keep culture free.

(Personal note: As an author who writes online and on paper, I am well aware of the complexity of intellectual content and copyright issues. Writing online, especially for this Web site, means relinquishing reprint, royalty and subsidiary rights that used to provide revenue to writers and artists. The work of me and other writers here and elsewhere on the Web is widely distributed, linked and even printed in paper form without permission or payment. But I've also come to believe that the free (open source, if you like) distribution of content -- even opinions -- offers creators new opportunities: broader audiences, greater impact, road-tested ideas, thus eventually, perhaps even more income.)

While the sweatshop issue (students accuse colleges as well as fashion retailers of buying merchandise produced by sweatshop labor) is perfectly valid, one could argue that the effort by corporatism to attack information software and control entertainment is ultimately of equal importance.

Before the DMCA, for example, a university -- or even a commercial Web site -- could look the other way as people presented, distributed and downloaded music. The legal issue was left between the record company and the so-called "pirates." But in recent months the DMCA has sparked legal actions like these:

• Jon Johansen, a 16-year-old Norwegian student who allegedly wrote software allowing DVDs to be played on Linux-based computers, was arrested at the behest of the Motion Picture Association of America. The MPAA claimed the code illegally circumvented DVD copy protection, and sent cease-and-desist orders to hundreds, perhaps thousands of Web sites, including this one, that had allegedly posted the source code or linked to it. The MPAA filed lawsuits against several sites, as well as charges against Johansen and other software developers, and announced it would pursue other offenders.

• RealNetworks obtained an injunction against a portion of software created by Streambox, designed to allow users to capture or record streaming media sent via Real's copy-protected format.

• The Recording Industry Association of America (RIAA) filed suit against Napster, which allows music seekers to trade song files directly from machine to machine without having to post them on the Net. Following the suit, Napster was removed from scores of college and other Web sites.

Tomorrow: The political issue is as simple as it is significant. Do individuals have the right to define their own cultural and entertainment experiences? Or must they depend on content and products sold by a handful of corporations?

If you've been following the events surrounding the Digital Millennium Copyright Act, perhaps in regard to the DeCSS lawsuits, you may have noticed part of the DMCA is not in effect yet and the Copyright Office is taking comments on it. The time period for comments ends today, but that's okay, because even if you don't get in comments today you can file Reply Comments until March 20, and you can always reply to AOL/Time Warner's submission (mirrored here). A number of Slashdot posters have submitted comments as well, but included below is my set of comments to the Copyright Office. Out of 71 comments filed and available so far, only Time Warner's is favorable toward the DMCA.

(Note to would-be commenters: make sure you read the rules before sending in comments. You can send comments in plain text or as a PDF file [see createpdf.adobe.com], but it must be as an e-mail attachment, not in the body, addressed to 1201@loc.gov.)

Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Michael Sims
76 Swan St.
Staten Island, NY 10301
(718) 556-1002
<michael@slashdot.org>

David O. Carson
General Counsel, Copyright GC/I&R
P.O. Box 70400
Southwest Station
Washington, DC 20024

By e-mail: 1201@loc.gov
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Dear Copyright Office,

My comments on this section of the Digital Millennium Copyright Act are simple: I recommend that the Librarian of Congress find that enforcement of Section 1201(a)(1) will adversely affect non-infringing uses of copyrighted works for ALL CLASSES of copyrighted material, and thus the prohibition in subparagraph (A) should not apply to any user for any copyrighted work for the next three years.

Digital copyright protection systems offer the potential for copyright holders to totally eliminate any "unauthorized" uses through technology. The copyright system employed on Digital Versatile Discs (DVD's), for example, does not permit users to make copies, grab still screenshots or audio snippets, or even to play the disc in an unauthorized piece of hardware, on an unauthorized operating system, or in an unauthorized country. This is the model for future digital distribution systems. No technological system can tell whether a user is making "fair use" copying or not, so they restrict all copying.

Users already pay for whatever unauthorized copying may occur. See 17 USC Sec. 1004, which describes the government-mandated royalty payments on digital audio recording devices and media, which go to producers of copyrighted content. Everyone who purchases any equipment relating to digital audio pays a tax directly into the pockets of the recording industry, whether they ever infringe any copyrights or not. These forced royalties were put into place specifically to compensate copyright holders for the alleged "casual copying" that users would perform.

There is already plenty of copyright law on the books. Copyright infringement is unlawful and punishable. By definition, a corporation pursuing claims under the copyright infringement laws is enforcing its rights to the maximum extent of the law - so what use is the prohibition against circumventing access control measures? The only use of such a prohibition is to attack conduct that is NOT infringing, yet still involves some sort of access to a copyrighted work, since infringing conduct could be attacked under other parts of the copyright laws. The usual name for conduct that isn't infringing but involves copying from a copyrighted work is "fair use".

And of course "effectively controls access to a work" reaches far beyond a copyright holder's rights under our current laws. The phrase is not "effectively controls copying of a work", though even that would eliminate fair use copying. Copyright is the right to prevent copying. The right to prevent or regulate access to a specific work is one that has never been enforced by copyright - when one book vendor tried to do so, the Supreme Court ruled against them, in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908). Once a book is sold the copyright holder loses all powers over it - the purchaser can sell it again, loan it out, or read it in the country of his choice. Under section 1201(a)(1), a digital book author could restrict any or all of these abilities, and violating the restrictions would be grounds for civil and criminal penalties, including up to five years in prison. Once more: reading a book in a location or manner not authorized by the copyright holder could land you five years in prison. In a world that is rapidly moving to digitization of all works of creativity and scholarship, this is a frightening thought.

I'm not sure I can emphasize this enough. The only purposes which 1201(a)(1) can be used for is to restrict consumers from non-infringing copying and from accessing the copyrighted content in the time, place and manner of their choosing, which has never been a legitimate subject of copyright rights. That is, if a lawsuit is brought against someone, only two situations can exist: either that person was actually infringing copyright, in which cases claims could be brought under both the copyright infringement statutes and this circumvention provision; or the person was not actually infringing, in which case the claim under this provision would necessarily affect non-infringing conduct. In the first case this provision is simply tacking on more liability to the copyright infringement codes (which Congress should do independently if it wishes); in the second case it is making tort-feasors or criminals out of persons who have not infringed copyright in any fashion.

So we've established that the only conduct which section 1201(a)(1) affects is conduct which is non-infringing copying, or unauthorized access. Nothing in the law requires copyright holders to set "fair" standards for access to works - for instance, a digital book, perhaps a work by Stephen King or Danielle Steele, could cost $5 for individuals to buy, but $500 for libraries to buy. The mass market books could be issued with the "access restriction" that the purchaser may not lend the book to anyone else, ever, and thus the library would have no recourse but to purchase the $500 lending-permitted version. Access could be further restricted by only allowing the purchasing library to lend the book out; inter-library loans would be a thing of the past. Or maybe digital books would expire after a set time period; trying to gain access to them afterwards would be a violation. Naturally, copyright holders will seek to maximize their profits by setting the most restrictive access terms that the market will accept. Conduct like this is allowed by the law, hugely profitable to copyright holders, and under section 1201(a)(1), taking any action to circumvent it is illegal.

The Federal Register notice asks for specific examples of abuse. As an example, the standard for Digital Versatile Discs forces DVD players disable the user's ability to fast-forward when instructed by the disc. This allows copyright holders to include advertisements in the content which the user has no choice but to watch. If I want to be able to make certain non-infringing uses of a DVD I've purchased - such as watching only the 90% of the content which is not advertisements while skipping past the rest - the access controls in the work prohibit me from doing so, and the DMCA prohibits me from circumventing those access controls. There are hundreds or thousands of examples of abuses related to the software field. Many software programs limit their use to a single machine CPU, prevent users from making back-up copies of the original software, inform on users via the Internet to the company which produced the software, and otherwise limit the user's ability to copy or access the software in the manner of his choosing.

Access controls will also adversely affect the ability of libraries to archive copyrighted works. Digital Versatile Discs may last as little as 5-10 years (that is how long CD's last) and the access controls built into all DVD players and recorders mean that is impossible for a library to transfer a copyrighted work to a new medium for archival purposes. While a library's rare book collection can be digitized so that even when preservation efforts fail, an authentic copy remains available, no such preservation measures are allowed by the DMCA.


I hope I have made my point adequately. Honestly, the Librarian's action on this matter is likely to have little practical effect. Section 1201(a)(2) of the law, already in effect, outlaws the production, importation or distribution of any devices (including software code) which would circumvent access control measures. This part of the DMCA is already being used against individuals who wanted to play DVD's on an "unauthorized" computer operating system, Linux, and constructed a device to allow them to play lawfully-purchased DVD's on computers running Linux. The outcome of that lawsuit is not yet determined, but it is clear that making lawful, non-infringing uses of lawfully purchased DVD's (the defendants have not been accused of any copyright infringement whatsoever) is being hampered by the DMCA.

Thus, even if the Librarian accepts my recommendation and negates the effect of 1201(a)(1) for the next three years, a library may still find itself in the position of being permitted to circumvent an access control measure but not being allowed to construct or otherwise obtain a "device" which would allow them to perform it, unless the library desired to be sued by a copyright holder. However, if the Librarian were to reject 1201(a)(1) for all copyrighted works, this would send a strong message to Congress that the current attitude toward protecting copyrighted works, which involves no consideration of the fair use rights of the public, is unacceptable to the library community.


-- Michael Sims
Feb. 16, 2000

If you've been following the events surrounding the Digital Millennium Copyright Act, perhaps in regard to the DeCSS lawsuits, you may have noticed part of the DMCA is not in effect yet and the Copyright Office is taking comments on it. The time period for comments ends today, but that's okay, because even if you don't get in comments today you can file Reply Comments until March 20, and you can always reply to AOL/Time Warner's submission (mirrored here). A number of Slashdot posters have submitted comments as well, but included below is my set of comments to the Copyright Office. Out of 71 comments filed and available so far, only Time Warner's is favorable toward the DMCA.

(Note to would-be commenters: make sure you read the rules before sending in comments. You can send comments in plain text or as a PDF file [see createpdf.adobe.com], but it must be as an e-mail attachment, not in the body, addressed to 1201@loc.gov.)

Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Michael Sims
76 Swan St.
Staten Island, NY 10301
(718) 556-1002
<michael@slashdot.org>

David O. Carson
General Counsel, Copyright GC/I&R
P.O. Box 70400
Southwest Station
Washington, DC 20024

By e-mail: 1201@loc.gov
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Dear Copyright Office,

My comments on this section of the Digital Millennium Copyright Act are simple: I recommend that the Librarian of Congress find that enforcement of Section 1201(a)(1) will adversely affect non-infringing uses of copyrighted works for ALL CLASSES of copyrighted material, and thus the prohibition in subparagraph (A) should not apply to any user for any copyrighted work for the next three years.

Digital copyright protection systems offer the potential for copyright holders to totally eliminate any "unauthorized" uses through technology. The copyright system employed on Digital Versatile Discs (DVD's), for example, does not permit users to make copies, grab still screenshots or audio snippets, or even to play the disc in an unauthorized piece of hardware, on an unauthorized operating system, or in an unauthorized country. This is the model for future digital distribution systems. No technological system can tell whether a user is making "fair use" copying or not, so they restrict all copying.

Users already pay for whatever unauthorized copying may occur. See 17 USC Sec. 1004, which describes the government-mandated royalty payments on digital audio recording devices and media, which go to producers of copyrighted content. Everyone who purchases any equipment relating to digital audio pays a tax directly into the pockets of the recording industry, whether they ever infringe any copyrights or not. These forced royalties were put into place specifically to compensate copyright holders for the alleged "casual copying" that users would perform.

There is already plenty of copyright law on the books. Copyright infringement is unlawful and punishable. By definition, a corporation pursuing claims under the copyright infringement laws is enforcing its rights to the maximum extent of the law - so what use is the prohibition against circumventing access control measures? The only use of such a prohibition is to attack conduct that is NOT infringing, yet still involves some sort of access to a copyrighted work, since infringing conduct could be attacked under other parts of the copyright laws. The usual name for conduct that isn't infringing but involves copying from a copyrighted work is "fair use".

And of course "effectively controls access to a work" reaches far beyond a copyright holder's rights under our current laws. The phrase is not "effectively controls copying of a work", though even that would eliminate fair use copying. Copyright is the right to prevent copying. The right to prevent or regulate access to a specific work is one that has never been enforced by copyright - when one book vendor tried to do so, the Supreme Court ruled against them, in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908). Once a book is sold the copyright holder loses all powers over it - the purchaser can sell it again, loan it out, or read it in the country of his choice. Under section 1201(a)(1), a digital book author could restrict any or all of these abilities, and violating the restrictions would be grounds for civil and criminal penalties, including up to five years in prison. Once more: reading a book in a location or manner not authorized by the copyright holder could land you five years in prison. In a world that is rapidly moving to digitization of all works of creativity and scholarship, this is a frightening thought.

I'm not sure I can emphasize this enough. The only purposes which 1201(a)(1) can be used for is to restrict consumers from non-infringing copying and from accessing the copyrighted content in the time, place and manner of their choosing, which has never been a legitimate subject of copyright rights. That is, if a lawsuit is brought against someone, only two situations can exist: either that person was actually infringing copyright, in which cases claims could be brought under both the copyright infringement statutes and this circumvention provision; or the person was not actually infringing, in which case the claim under this provision would necessarily affect non-infringing conduct. In the first case this provision is simply tacking on more liability to the copyright infringement codes (which Congress should do independently if it wishes); in the second case it is making tort-feasors or criminals out of persons who have not infringed copyright in any fashion.

So we've established that the only conduct which section 1201(a)(1) affects is conduct which is non-infringing copying, or unauthorized access. Nothing in the law requires copyright holders to set "fair" standards for access to works - for instance, a digital book, perhaps a work by Stephen King or Danielle Steele, could cost $5 for individuals to buy, but $500 for libraries to buy. The mass market books could be issued with the "access restriction" that the purchaser may not lend the book to anyone else, ever, and thus the library would have no recourse but to purchase the $500 lending-permitted version. Access could be further restricted by only allowing the purchasing library to lend the book out; inter-library loans would be a thing of the past. Or maybe digital books would expire after a set time period; trying to gain access to them afterwards would be a violation. Naturally, copyright holders will seek to maximize their profits by setting the most restrictive access terms that the market will accept. Conduct like this is allowed by the law, hugely profitable to copyright holders, and under section 1201(a)(1), taking any action to circumvent it is illegal.

The Federal Register notice asks for specific examples of abuse. As an example, the standard for Digital Versatile Discs forces DVD players disable the user's ability to fast-forward when instructed by the disc. This allows copyright holders to include advertisements in the content which the user has no choice but to watch. If I want to be able to make certain non-infringing uses of a DVD I've purchased - such as watching only the 90% of the content which is not advertisements while skipping past the rest - the access controls in the work prohibit me from doing so, and the DMCA prohibits me from circumventing those access controls. There are hundreds or thousands of examples of abuses related to the software field. Many software programs limit their use to a single machine CPU, prevent users from making back-up copies of the original software, inform on users via the Internet to the company which produced the software, and otherwise limit the user's ability to copy or access the software in the manner of his choosing.

Access controls will also adversely affect the ability of libraries to archive copyrighted works. Digital Versatile Discs may last as little as 5-10 years (that is how long CD's last) and the access controls built into all DVD players and recorders mean that is impossible for a library to transfer a copyrighted work to a new medium for archival purposes. While a library's rare book collection can be digitized so that even when preservation efforts fail, an authentic copy remains available, no such preservation measures are allowed by the DMCA.


I hope I have made my point adequately. Honestly, the Librarian's action on this matter is likely to have little practical effect. Section 1201(a)(2) of the law, already in effect, outlaws the production, importation or distribution of any devices (including software code) which would circumvent access control measures. This part of the DMCA is already being used against individuals who wanted to play DVD's on an "unauthorized" computer operating system, Linux, and constructed a device to allow them to play lawfully-purchased DVD's on computers running Linux. The outcome of that lawsuit is not yet determined, but it is clear that making lawful, non-infringing uses of lawfully purchased DVD's (the defendants have not been accused of any copyright infringement whatsoever) is being hampered by the DMCA.

Thus, even if the Librarian accepts my recommendation and negates the effect of 1201(a)(1) for the next three years, a library may still find itself in the position of being permitted to circumvent an access control measure but not being allowed to construct or otherwise obtain a "device" which would allow them to perform it, unless the library desired to be sued by a copyright holder. However, if the Librarian were to reject 1201(a)(1) for all copyrighted works, this would send a strong message to Congress that the current attitude toward protecting copyrighted works, which involves no consideration of the fair use rights of the public, is unacceptable to the library community.


-- Michael Sims
Feb. 16, 2000

If you've been following the events surrounding the Digital Millennium Copyright Act, perhaps in regard to the DeCSS lawsuits, you may have noticed part of the DMCA is not in effect yet and the Copyright Office is taking comments on it. The time period for comments ends today, but that's okay, because even if you don't get in comments today you can file Reply Comments until March 20, and you can always reply to AOL/Time Warner's submission (mirrored here). A number of Slashdot posters have submitted comments as well, but included below is my set of comments to the Copyright Office. Out of 71 comments filed and available so far, only Time Warner's is favorable toward the DMCA.

(Note to would-be commenters: make sure you read the rules before sending in comments. You can send comments in plain text or as a PDF file [see createpdf.adobe.com], but it must be as an e-mail attachment, not in the body, addressed to 1201@loc.gov.)

Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Michael Sims
76 Swan St.
Staten Island, NY 10301
(718) 556-1002
<michael@slashdot.org>

David O. Carson
General Counsel, Copyright GC/I&R
P.O. Box 70400
Southwest Station
Washington, DC 20024

By e-mail: 1201@loc.gov
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Dear Copyright Office,

My comments on this section of the Digital Millennium Copyright Act are simple: I recommend that the Librarian of Congress find that enforcement of Section 1201(a)(1) will adversely affect non-infringing uses of copyrighted works for ALL CLASSES of copyrighted material, and thus the prohibition in subparagraph (A) should not apply to any user for any copyrighted work for the next three years.

Digital copyright protection systems offer the potential for copyright holders to totally eliminate any "unauthorized" uses through technology. The copyright system employed on Digital Versatile Discs (DVD's), for example, does not permit users to make copies, grab still screenshots or audio snippets, or even to play the disc in an unauthorized piece of hardware, on an unauthorized operating system, or in an unauthorized country. This is the model for future digital distribution systems. No technological system can tell whether a user is making "fair use" copying or not, so they restrict all copying.

Users already pay for whatever unauthorized copying may occur. See 17 USC Sec. 1004, which describes the government-mandated royalty payments on digital audio recording devices and media, which go to producers of copyrighted content. Everyone who purchases any equipment relating to digital audio pays a tax directly into the pockets of the recording industry, whether they ever infringe any copyrights or not. These forced royalties were put into place specifically to compensate copyright holders for the alleged "casual copying" that users would perform.

There is already plenty of copyright law on the books. Copyright infringement is unlawful and punishable. By definition, a corporation pursuing claims under the copyright infringement laws is enforcing its rights to the maximum extent of the law - so what use is the prohibition against circumventing access control measures? The only use of such a prohibition is to attack conduct that is NOT infringing, yet still involves some sort of access to a copyrighted work, since infringing conduct could be attacked under other parts of the copyright laws. The usual name for conduct that isn't infringing but involves copying from a copyrighted work is "fair use".

And of course "effectively controls access to a work" reaches far beyond a copyright holder's rights under our current laws. The phrase is not "effectively controls copying of a work", though even that would eliminate fair use copying. Copyright is the right to prevent copying. The right to prevent or regulate access to a specific work is one that has never been enforced by copyright - when one book vendor tried to do so, the Supreme Court ruled against them, in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908). Once a book is sold the copyright holder loses all powers over it - the purchaser can sell it again, loan it out, or read it in the country of his choice. Under section 1201(a)(1), a digital book author could restrict any or all of these abilities, and violating the restrictions would be grounds for civil and criminal penalties, including up to five years in prison. Once more: reading a book in a location or manner not authorized by the copyright holder could land you five years in prison. In a world that is rapidly moving to digitization of all works of creativity and scholarship, this is a frightening thought.

I'm not sure I can emphasize this enough. The only purposes which 1201(a)(1) can be used for is to restrict consumers from non-infringing copying and from accessing the copyrighted content in the time, place and manner of their choosing, which has never been a legitimate subject of copyright rights. That is, if a lawsuit is brought against someone, only two situations can exist: either that person was actually infringing copyright, in which cases claims could be brought under both the copyright infringement statutes and this circumvention provision; or the person was not actually infringing, in which case the claim under this provision would necessarily affect non-infringing conduct. In the first case this provision is simply tacking on more liability to the copyright infringement codes (which Congress should do independently if it wishes); in the second case it is making tort-feasors or criminals out of persons who have not infringed copyright in any fashion.

So we've established that the only conduct which section 1201(a)(1) affects is conduct which is non-infringing copying, or unauthorized access. Nothing in the law requires copyright holders to set "fair" standards for access to works - for instance, a digital book, perhaps a work by Stephen King or Danielle Steele, could cost $5 for individuals to buy, but $500 for libraries to buy. The mass market books could be issued with the "access restriction" that the purchaser may not lend the book to anyone else, ever, and thus the library would have no recourse but to purchase the $500 lending-permitted version. Access could be further restricted by only allowing the purchasing library to lend the book out; inter-library loans would be a thing of the past. Or maybe digital books would expire after a set time period; trying to gain access to them afterwards would be a violation. Naturally, copyright holders will seek to maximize their profits by setting the most restrictive access terms that the market will accept. Conduct like this is allowed by the law, hugely profitable to copyright holders, and under section 1201(a)(1), taking any action to circumvent it is illegal.

The Federal Register notice asks for specific examples of abuse. As an example, the standard for Digital Versatile Discs forces DVD players disable the user's ability to fast-forward when instructed by the disc. This allows copyright holders to include advertisements in the content which the user has no choice but to watch. If I want to be able to make certain non-infringing uses of a DVD I've purchased - such as watching only the 90% of the content which is not advertisements while skipping past the rest - the access controls in the work prohibit me from doing so, and the DMCA prohibits me from circumventing those access controls. There are hundreds or thousands of examples of abuses related to the software field. Many software programs limit their use to a single machine CPU, prevent users from making back-up copies of the original software, inform on users via the Internet to the company which produced the software, and otherwise limit the user's ability to copy or access the software in the manner of his choosing.

Access controls will also adversely affect the ability of libraries to archive copyrighted works. Digital Versatile Discs may last as little as 5-10 years (that is how long CD's last) and the access controls built into all DVD players and recorders mean that is impossible for a library to transfer a copyrighted work to a new medium for archival purposes. While a library's rare book collection can be digitized so that even when preservation efforts fail, an authentic copy remains available, no such preservation measures are allowed by the DMCA.


I hope I have made my point adequately. Honestly, the Librarian's action on this matter is likely to have little practical effect. Section 1201(a)(2) of the law, already in effect, outlaws the production, importation or distribution of any devices (including software code) which would circumvent access control measures. This part of the DMCA is already being used against individuals who wanted to play DVD's on an "unauthorized" computer operating system, Linux, and constructed a device to allow them to play lawfully-purchased DVD's on computers running Linux. The outcome of that lawsuit is not yet determined, but it is clear that making lawful, non-infringing uses of lawfully purchased DVD's (the defendants have not been accused of any copyright infringement whatsoever) is being hampered by the DMCA.

Thus, even if the Librarian accepts my recommendation and negates the effect of 1201(a)(1) for the next three years, a library may still find itself in the position of being permitted to circumvent an access control measure but not being allowed to construct or otherwise obtain a "device" which would allow them to perform it, unless the library desired to be sued by a copyright holder. However, if the Librarian were to reject 1201(a)(1) for all copyrighted works, this would send a strong message to Congress that the current attitude toward protecting copyrighted works, which involves no consideration of the fair use rights of the public, is unacceptable to the library community.


-- Michael Sims
Feb. 16, 2000

If you've been following the events surrounding the Digital Millennium Copyright Act, perhaps in regard to the DeCSS lawsuits, you may have noticed part of the DMCA is not in effect yet and the Copyright Office is taking comments on it. The time period for comments ends today, but that's okay, because even if you don't get in comments today you can file Reply Comments until March 20, and you can always reply to AOL/Time Warner's submission (mirrored here). A number of Slashdot posters have submitted comments as well, but included below is my set of comments to the Copyright Office. Out of 71 comments filed and available so far, only Time Warner's is favorable toward the DMCA.

(Note to would-be commenters: make sure you read the rules before sending in comments. You can send comments in plain text or as a PDF file [see createpdf.adobe.com], but it must be as an e-mail attachment, not in the body, addressed to 1201@loc.gov.)

Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Michael Sims
76 Swan St.
Staten Island, NY 10301
(718) 556-1002
<michael@slashdot.org>

David O. Carson
General Counsel, Copyright GC/I&R
P.O. Box 70400
Southwest Station
Washington, DC 20024

By e-mail: 1201@loc.gov
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Dear Copyright Office,

My comments on this section of the Digital Millennium Copyright Act are simple: I recommend that the Librarian of Congress find that enforcement of Section 1201(a)(1) will adversely affect non-infringing uses of copyrighted works for ALL CLASSES of copyrighted material, and thus the prohibition in subparagraph (A) should not apply to any user for any copyrighted work for the next three years.

Digital copyright protection systems offer the potential for copyright holders to totally eliminate any "unauthorized" uses through technology. The copyright system employed on Digital Versatile Discs (DVD's), for example, does not permit users to make copies, grab still screenshots or audio snippets, or even to play the disc in an unauthorized piece of hardware, on an unauthorized operating system, or in an unauthorized country. This is the model for future digital distribution systems. No technological system can tell whether a user is making "fair use" copying or not, so they restrict all copying.

Users already pay for whatever unauthorized copying may occur. See 17 USC Sec. 1004, which describes the government-mandated royalty payments on digital audio recording devices and media, which go to producers of copyrighted content. Everyone who purchases any equipment relating to digital audio pays a tax directly into the pockets of the recording industry, whether they ever infringe any copyrights or not. These forced royalties were put into place specifically to compensate copyright holders for the alleged "casual copying" that users would perform.

There is already plenty of copyright law on the books. Copyright infringement is unlawful and punishable. By definition, a corporation pursuing claims under the copyright infringement laws is enforcing its rights to the maximum extent of the law - so what use is the prohibition against circumventing access control measures? The only use of such a prohibition is to attack conduct that is NOT infringing, yet still involves some sort of access to a copyrighted work, since infringing conduct could be attacked under other parts of the copyright laws. The usual name for conduct that isn't infringing but involves copying from a copyrighted work is "fair use".

And of course "effectively controls access to a work" reaches far beyond a copyright holder's rights under our current laws. The phrase is not "effectively controls copying of a work", though even that would eliminate fair use copying. Copyright is the right to prevent copying. The right to prevent or regulate access to a specific work is one that has never been enforced by copyright - when one book vendor tried to do so, the Supreme Court ruled against them, in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908). Once a book is sold the copyright holder loses all powers over it - the purchaser can sell it again, loan it out, or read it in the country of his choice. Under section 1201(a)(1), a digital book author could restrict any or all of these abilities, and violating the restrictions would be grounds for civil and criminal penalties, including up to five years in prison. Once more: reading a book in a location or manner not authorized by the copyright holder could land you five years in prison. In a world that is rapidly moving to digitization of all works of creativity and scholarship, this is a frightening thought.

I'm not sure I can emphasize this enough. The only purposes which 1201(a)(1) can be used for is to restrict consumers from non-infringing copying and from accessing the copyrighted content in the time, place and manner of their choosing, which has never been a legitimate subject of copyright rights. That is, if a lawsuit is brought against someone, only two situations can exist: either that person was actually infringing copyright, in which cases claims could be brought under both the copyright infringement statutes and this circumvention provision; or the person was not actually infringing, in which case the claim under this provision would necessarily affect non-infringing conduct. In the first case this provision is simply tacking on more liability to the copyright infringement codes (which Congress should do independently if it wishes); in the second case it is making tort-feasors or criminals out of persons who have not infringed copyright in any fashion.

So we've established that the only conduct which section 1201(a)(1) affects is conduct which is non-infringing copying, or unauthorized access. Nothing in the law requires copyright holders to set "fair" standards for access to works - for instance, a digital book, perhaps a work by Stephen King or Danielle Steele, could cost $5 for individuals to buy, but $500 for libraries to buy. The mass market books could be issued with the "access restriction" that the purchaser may not lend the book to anyone else, ever, and thus the library would have no recourse but to purchase the $500 lending-permitted version. Access could be further restricted by only allowing the purchasing library to lend the book out; inter-library loans would be a thing of the past. Or maybe digital books would expire after a set time period; trying to gain access to them afterwards would be a violation. Naturally, copyright holders will seek to maximize their profits by setting the most restrictive access terms that the market will accept. Conduct like this is allowed by the law, hugely profitable to copyright holders, and under section 1201(a)(1), taking any action to circumvent it is illegal.

The Federal Register notice asks for specific examples of abuse. As an example, the standard for Digital Versatile Discs forces DVD players disable the user's ability to fast-forward when instructed by the disc. This allows copyright holders to include advertisements in the content which the user has no choice but to watch. If I want to be able to make certain non-infringing uses of a DVD I've purchased - such as watching only the 90% of the content which is not advertisements while skipping past the rest - the access controls in the work prohibit me from doing so, and the DMCA prohibits me from circumventing those access controls. There are hundreds or thousands of examples of abuses related to the software field. Many software programs limit their use to a single machine CPU, prevent users from making back-up copies of the original software, inform on users via the Internet to the company which produced the software, and otherwise limit the user's ability to copy or access the software in the manner of his choosing.

Access controls will also adversely affect the ability of libraries to archive copyrighted works. Digital Versatile Discs may last as little as 5-10 years (that is how long CD's last) and the access controls built into all DVD players and recorders mean that is impossible for a library to transfer a copyrighted work to a new medium for archival purposes. While a library's rare book collection can be digitized so that even when preservation efforts fail, an authentic copy remains available, no such preservation measures are allowed by the DMCA.


I hope I have made my point adequately. Honestly, the Librarian's action on this matter is likely to have little practical effect. Section 1201(a)(2) of the law, already in effect, outlaws the production, importation or distribution of any devices (including software code) which would circumvent access control measures. This part of the DMCA is already being used against individuals who wanted to play DVD's on an "unauthorized" computer operating system, Linux, and constructed a device to allow them to play lawfully-purchased DVD's on computers running Linux. The outcome of that lawsuit is not yet determined, but it is clear that making lawful, non-infringing uses of lawfully purchased DVD's (the defendants have not been accused of any copyright infringement whatsoever) is being hampered by the DMCA.

Thus, even if the Librarian accepts my recommendation and negates the effect of 1201(a)(1) for the next three years, a library may still find itself in the position of being permitted to circumvent an access control measure but not being allowed to construct or otherwise obtain a "device" which would allow them to perform it, unless the library desired to be sued by a copyright holder. However, if the Librarian were to reject 1201(a)(1) for all copyrighted works, this would send a strong message to Congress that the current attitude toward protecting copyrighted works, which involves no consideration of the fair use rights of the public, is unacceptable to the library community.


-- Michael Sims
Feb. 16, 2000

If you've been following the events surrounding the Digital Millennium Copyright Act, perhaps in regard to the DeCSS lawsuits, you may have noticed part of the DMCA is not in effect yet and the Copyright Office is taking comments on it. The time period for comments ends today, but that's okay, because even if you don't get in comments today you can file Reply Comments until March 20, and you can always reply to AOL/Time Warner's submission (mirrored here). A number of Slashdot posters have submitted comments as well, but included below is my set of comments to the Copyright Office. Out of 71 comments filed and available so far, only Time Warner's is favorable toward the DMCA.

(Note to would-be commenters: make sure you read the rules before sending in comments. You can send comments in plain text or as a PDF file [see createpdf.adobe.com], but it must be as an e-mail attachment, not in the body, addressed to 1201@loc.gov.)

Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Michael Sims
76 Swan St.
Staten Island, NY 10301
(718) 556-1002
<michael@slashdot.org>

David O. Carson
General Counsel, Copyright GC/I&R
P.O. Box 70400
Southwest Station
Washington, DC 20024

By e-mail: 1201@loc.gov
Comments on 17 USC Section 1201(a)(1), Digital Millennium Copyright Act

Dear Copyright Office,

My comments on this section of the Digital Millennium Copyright Act are simple: I recommend that the Librarian of Congress find that enforcement of Section 1201(a)(1) will adversely affect non-infringing uses of copyrighted works for ALL CLASSES of copyrighted material, and thus the prohibition in subparagraph (A) should not apply to any user for any copyrighted work for the next three years.

Digital copyright protection systems offer the potential for copyright holders to totally eliminate any "unauthorized" uses through technology. The copyright system employed on Digital Versatile Discs (DVD's), for example, does not permit users to make copies, grab still screenshots or audio snippets, or even to play the disc in an unauthorized piece of hardware, on an unauthorized operating system, or in an unauthorized country. This is the model for future digital distribution systems. No technological system can tell whether a user is making "fair use" copying or not, so they restrict all copying.

Users already pay for whatever unauthorized copying may occur. See 17 USC Sec. 1004, which describes the government-mandated royalty payments on digital audio recording devices and media, which go to producers of copyrighted content. Everyone who purchases any equipment relating to digital audio pays a tax directly into the pockets of the recording industry, whether they ever infringe any copyrights or not. These forced royalties were put into place specifically to compensate copyright holders for the alleged "casual copying" that users would perform.

There is already plenty of copyright law on the books. Copyright infringement is unlawful and punishable. By definition, a corporation pursuing claims under the copyright infringement laws is enforcing its rights to the maximum extent of the law - so what use is the prohibition against circumventing access control measures? The only use of such a prohibition is to attack conduct that is NOT infringing, yet still involves some sort of access to a copyrighted work, since infringing conduct could be attacked under other parts of the copyright laws. The usual name for conduct that isn't infringing but involves copying from a copyrighted work is "fair use".

And of course "effectively controls access to a work" reaches far beyond a copyright holder's rights under our current laws. The phrase is not "effectively controls copying of a work", though even that would eliminate fair use copying. Copyright is the right to prevent copying. The right to prevent or regulate access to a specific work is one that has never been enforced by copyright - when one book vendor tried to do so, the Supreme Court ruled against them, in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908). Once a book is sold the copyright holder loses all powers over it - the purchaser can sell it again, loan it out, or read it in the country of his choice. Under section 1201(a)(1), a digital book author could restrict any or all of these abilities, and violating the restrictions would be grounds for civil and criminal penalties, including up to five years in prison. Once more: reading a book in a location or manner not authorized by the copyright holder could land you five years in prison. In a world that is rapidly moving to digitization of all works of creativity and scholarship, this is a frightening thought.

I'm not sure I can emphasize this enough. The only purposes which 1201(a)(1) can be used for is to restrict consumers from non-infringing copying and from accessing the copyrighted content in the time, place and manner of their choosing, which has never been a legitimate subject of copyright rights. That is, if a lawsuit is brought against someone, only two situations can exist: either that person was actually infringing copyright, in which cases claims could be brought under both the copyright infringement statutes and this circumvention provision; or the person was not actually infringing, in which case the claim under this provision would necessarily affect non-infringing conduct. In the first case this provision is simply tacking on more liability to the copyright infringement codes (which Congress should do independently if it wishes); in the second case it is making tort-feasors or criminals out of persons who have not infringed copyright in any fashion.

So we've established that the only conduct which section 1201(a)(1) affects is conduct which is non-infringing copying, or unauthorized access. Nothing in the law requires copyright holders to set "fair" standards for access to works - for instance, a digital book, perhaps a work by Stephen King or Danielle Steele, could cost $5 for individuals to buy, but $500 for libraries to buy. The mass market books could be issued with the "access restriction" that the purchaser may not lend the book to anyone else, ever, and thus the library would have no recourse but to purchase the $500 lending-permitted version. Access could be further restricted by only allowing the purchasing library to lend the book out; inter-library loans would be a thing of the past. Or maybe digital books would expire after a set time period; trying to gain access to them afterwards would be a violation. Naturally, copyright holders will seek to maximize their profits by setting the most restrictive access terms that the market will accept. Conduct like this is allowed by the law, hugely profitable to copyright holders, and under section 1201(a)(1), taking any action to circumvent it is illegal.

The Federal Register notice asks for specific examples of abuse. As an example, the standard for Digital Versatile Discs forces DVD players disable the user's ability to fast-forward when instructed by the disc. This allows copyright holders to include advertisements in the content which the user has no choice but to watch. If I want to be able to make certain non-infringing uses of a DVD I've purchased - such as watching only the 90% of the content which is not advertisements while skipping past the rest - the access controls in the work prohibit me from doing so, and the DMCA prohibits me from circumventing those access controls. There are hundreds or thousands of examples of abuses related to the software field. Many software programs limit their use to a single machine CPU, prevent users from making back-up copies of the original software, inform on users via the Internet to the company which produced the software, and otherwise limit the user's ability to copy or access the software in the manner of his choosing.

Access controls will also adversely affect the ability of libraries to archive copyrighted works. Digital Versatile Discs may last as little as 5-10 years (that is how long CD's last) and the access controls built into all DVD players and recorders mean that is impossible for a library to transfer a copyrighted work to a new medium for archival purposes. While a library's rare book collection can be digitized so that even when preservation efforts fail, an authentic copy remains available, no such preservation measures are allowed by the DMCA.


I hope I have made my point adequately. Honestly, the Librarian's action on this matter is likely to have little practical effect. Section 1201(a)(2) of the law, already in effect, outlaws the production, importation or distribution of any devices (including software code) which would circumvent access control measures. This part of the DMCA is already being used against individuals who wanted to play DVD's on an "unauthorized" computer operating system, Linux, and constructed a device to allow them to play lawfully-purchased DVD's on computers running Linux. The outcome of that lawsuit is not yet determined, but it is clear that making lawful, non-infringing uses of lawfully purchased DVD's (the defendants have not been accused of any copyright infringement whatsoever) is being hampered by the DMCA.

Thus, even if the Librarian accepts my recommendation and negates the effect of 1201(a)(1) for the next three years, a library may still find itself in the position of being permitted to circumvent an access control measure but not being allowed to construct or otherwise obtain a "device" which would allow them to perform it, unless the library desired to be sued by a copyright holder. However, if the Librarian were to reject 1201(a)(1) for all copyrighted works, this would send a strong message to Congress that the current attitude toward protecting copyrighted works, which involves no consideration of the fair use rights of the public, is unacceptable to the library community.


-- Michael Sims
Feb. 16, 2000

James T Ensor writes "According to this story in the Village Voice S. 486 has already passed the Senate and is waiting for House approval. According to the bill, it would be illegal "to teach or demonstrate the manufacture of a controlled substance, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of a controlled substance." That includes Web sites, guys. And seeing the way things have been going lately, links to those Web sites as well. " You can read the bill by going to Thomas and searching for "methamphetamine".

CJMClark writes "I am a university student working on a public policy analysis of the Digital Millennium Copyright Act, and I am interested in (since the government's stance is pretty clear) the opinions of members of the computing community as regards this particular piece of legislation and its effect on the freedom of information. Has the government, in your opinion, gone too far or overstepped its bounds? Have you been affected by the DMCA? How is it that the government can prohibit an average U.S. citizen from decrypting encrypted files, and yet also attempt to force Kevin Mitnick to decrypt his personal files? Is this a blatant violation of the fair use clause of Title 17? All replies will be held strictly confidential, as I am simply trying to get a feel for how this legislation affects those citizens who, on the whole, are technologically oriented.

Please feel free to post replies to this post, or simply e-mail them to me at CJMClark@hotmail.com. I welcome any and all opinions on this matter.

Carl J. Clark
"Justice for All in the Digital Age" "

Senator and GOP presidential frontrunner of the week John McCain (R-Ariz.) gave a little talk this afternoon practically in the Geek Compound's back yard. Billed by a local group as a town meeting on censorware, with handouts on "Internet porn filters" passed around beforehand, this roving reporter was dying to find out what would be said. Click for more...

"The internet is going to provide knowledge, information and freedom to people all over the world." - Sen. John McCain

The world-famous Geek Compound is located in Ottawa County, Michigan, not exactly known as a hotbed of controversy and intrigue. But for whatever reason, we are now one of the areas whose libraries are being targeted by would-be censors. Uncaring of a federal court decision declaring censorware in public libraries unconstitutional, the American Family Association and other "pro-family" groups have declared the area a battleground. A small library in a small nearby town has become the first in our fair state to install mandatory censorware on all its internet terminals. And now, the home of Slashdot itself, Holland, is being pressured to do the same at its public library.

Politics is of course a war of ideas, and in any war there is the inevitable arms race. Sen. McCain was possibly the first to bring the issue directly to the Congress, with his S.97 introduced a year ago. But Elizabeth Dole was the first to make the subject a campaign issue, as is illustrated by the pro-censorware pamphlet:

"...libraries should install computer software that blocks access to pornographic sites on the Internet...the measure also should apply to computers used by adults." - ABC NEWS, June 28, 1999

After Dole dropped out, the issue languished for a while until, in a campaign hard-pressed for issues of substance, it was revived. Steve Forbes is quoted:

"I proudly support AFA-Michigan and the citizens of Holland in seeking a reasonable, common sense standard to what children have the opportunity to view in a public library." - Dec. 20, 1999

And McCain's latest quote came while stumping in South Carolina:

"Every school and library should be required to buy filters...to keep out materials that are not suitable for children the same way in which the library board filters printed materials for the library." - Dec. 22, 1999

It's a no-lose issue for politicians. In the race to see who can come out more in favor of children, facts get left by the side of the road.

Here's the strange thing: this open forum meeting, which the AFA hoped would be about internet porn, ended up being about everything except internet porn. McCain spoke briefly, and only for a few minutes did he discuss blocking technology. In the lengthy question-and-answer period, there were only two questions about censorware. One of them was mine, and neither was in support of his position.

My question was about blocking software and openness. I stopped short of grabbing the mike and shouting "open-source the censors!" but that was the general idea.

One of the major concerns that free-speech advocates have about censorware is that its blacklists, or blocking lists, are hidden. The list of URLs and such that are actually blocked by their software is protected by copyright law and by encryption.

It's an end-run around the First Amendment. The government could never step into a library and censor information from the National Academy of Clinical Biochemistry. Or GayDaze, a non-pornographic online soap opera about gay men and a lesbian. Or any of the thousands of unfairly blocked sites that have been uncovered.

The end-run is to allow an unaccountable third party to put these blocks in place - hidden - and then for the government to mandate their use.

I briefly set up this paradox for Sen. McCain and then asked: "Do you believe that software installed in public schools and libraries should be open to public scrutiny?"

I didn't set it up quite as well as I just have; I figured that since he was the sponsor of S.97, "a bill to require the installation and use by schools and libraries of a technology for filtering or blocking," he might quickly grasp my point. But he didn't appear to be familiar with the fact that the blacklists are encrypted, and answered a different question.

But when I rephrased the question, his answer was that he "would strongly advocate full disclosure."

If the Senator - or anyone else in a policymaking position - is reading this, I would follow that up by saying:

Great!

But the software we're talking about doesn't do this. There is only one commercial package on the market that has an open blacklist. It is not popular and is almost never given as a preferred option for libraries and schools. The software that the AFA wants to install in Holland's libraries has a carefully-encrypted blacklist.

It's only because of the (arguably illegal) efforts of muckrakers that we know anything at all about this software. The AFA, Filtering Facts, and other pro-censorware groups endorsed a product called X-Stop in August 1997. Family Friendly Libraries called it "technology that will block ALL porn sights and ONLY porn sights" [sic], and rejoiced that a technology had "achieved 100% success." But their encrypted blacklist was decrypted and exposed shortly thereafter. Unsurprisingly, the product did not live up to its marketing hyperbole. In October 1997, the endorsements shriveled and disappeared as quickly as they'd come.

The product was the same. Only our knowledge about it had changed.

McCain calls for "community standards" to be applied to each public library. But no censorware offers checkboxes for "rural Kansas" vs. "New York City" blocking. They are all one-size-fits-all. And because we can't look under the hood, nobody has any idea what size that is.

If we're going to use third parties to censor our public libraries, let's make sure they let us see what they're doing.

That's what I would have said to the Senator if I'd had a microphone of my own.

Finally, I have to say that I was impressed by the student in the balcony, a high-school student at my guess, who - after listening to the standard recap of Columbine and the standard attack on the media for giving the murderers Doom and the internet - stood up to state his case. He said that he looked at how the Columbine murderers were being described by the media and by McCain, and the description sounded a lot like himself. He played violent video games and spent time on the internet and he wasn't afraid to say so. That took guts.

McCain's plan for kids like this is twofold: first, to fund a study of "very intelligent people" to determine once and for all whether there is a link between media violence and real violence. And second, to protect parents' rights: "your parents need to know what you're doing on the internet," he told the high-school student, so that they could all sit down as a family and discuss whether it was appropriate.

I hope that kid knows about Peacefire.

Tonight, there will be a meeting on censorware at the Holland library which we hope will include both sides of this issue. Watch for a report tomorrow.

[An unfinished version of this story was accidentally posted Monday evening, and several Slashdot reader comments were lost. I apologize for the mistake. -Jamie]

Senator and GOP presidential frontrunner of the week John McCain (R-Ariz.) gave a little talk this afternoon practically in the Geek Compound's back yard. Billed by a local group as a town meeting on censorware, with handouts on "Internet porn filters" passed around beforehand, this roving reporter was dying to find out what would be said. Click for more...

"The internet is going to provide knowledge, information and freedom to people all over the world." - Sen. John McCain

The world-famous Geek Compound is located in Ottawa County, Michigan, not exactly known as a hotbed of controversy and intrigue. But for whatever reason, we are now one of the areas whose libraries are being targeted by would-be censors. Uncaring of a federal court decision declaring censorware in public libraries unconstitutional, the American Family Association and other "pro-family" groups have declared the area a battleground. A small library in a small nearby town has become the first in our fair state to install mandatory censorware on all its internet terminals. And now, the home of Slashdot itself, Holland, is being pressured to do the same at its public library.

Politics is of course a war of ideas, and in any war there is the inevitable arms race. Sen. McCain was possibly the first to bring the issue directly to the Congress, with his S.97 introduced a year ago. But Elizabeth Dole was the first to make the subject a campaign issue, as is illustrated by the pro-censorware pamphlet:

"...libraries should install computer software that blocks access to pornographic sites on the Internet...the measure also should apply to computers used by adults." - ABC NEWS, June 28, 1999

After Dole dropped out, the issue languished for a while until, in a campaign hard-pressed for issues of substance, it was revived. Steve Forbes is quoted:

"I proudly support AFA-Michigan and the citizens of Holland in seeking a reasonable, common sense standard to what children have the opportunity to view in a public library." - Dec. 20, 1999

And McCain's latest quote came while stumping in South Carolina:

"Every school and library should be required to buy filters...to keep out materials that are not suitable for children the same way in which the library board filters printed materials for the library." - Dec. 22, 1999

It's a no-lose issue for politicians. In the race to see who can come out more in favor of children, facts get left by the side of the road.

Here's the strange thing: this open forum meeting, which the AFA hoped would be about internet porn, ended up being about everything except internet porn. McCain spoke briefly, and only for a few minutes did he discuss blocking technology. In the lengthy question-and-answer period, there were only two questions about censorware. One of them was mine, and neither was in support of his position.

My question was about blocking software and openness. I stopped short of grabbing the mike and shouting "open-source the censors!" but that was the general idea.

One of the major concerns that free-speech advocates have about censorware is that its blacklists, or blocking lists, are hidden. The list of URLs and such that are actually blocked by their software is protected by copyright law and by encryption.

It's an end-run around the First Amendment. The government could never step into a library and censor information from the National Academy of Clinical Biochemistry. Or GayDaze, a non-pornographic online soap opera about gay men and a lesbian. Or any of the thousands of unfairly blocked sites that have been uncovered.

The end-run is to allow an unaccountable third party to put these blocks in place - hidden - and then for the government to mandate their use.

I briefly set up this paradox for Sen. McCain and then asked: "Do you believe that software installed in public schools and libraries should be open to public scrutiny?"

I didn't set it up quite as well as I just have; I figured that since he was the sponsor of S.97, "a bill to require the installation and use by schools and libraries of a technology for filtering or blocking," he might quickly grasp my point. But he didn't appear to be familiar with the fact that the blacklists are encrypted, and answered a different question.

But when I rephrased the question, his answer was that he "would strongly advocate full disclosure."

If the Senator - or anyone else in a policymaking position - is reading this, I would follow that up by saying:

Great!

But the software we're talking about doesn't do this. There is only one commercial package on the market that has an open blacklist. It is not popular and is almost never given as a preferred option for libraries and schools. The software that the AFA wants to install in Holland's libraries has a carefully-encrypted blacklist.

It's only because of the (arguably illegal) efforts of muckrakers that we know anything at all about this software. The AFA, Filtering Facts, and other pro-censorware groups endorsed a product called X-Stop in August 1997. Family Friendly Libraries called it "technology that will block ALL porn sights and ONLY porn sights" [sic], and rejoiced that a technology had "achieved 100% success." But their encrypted blacklist was decrypted and exposed shortly thereafter. Unsurprisingly, the product did not live up to its marketing hyperbole. In October 1997, the endorsements shriveled and disappeared as quickly as they'd come.

The product was the same. Only our knowledge about it had changed.

McCain calls for "community standards" to be applied to each public library. But no censorware offers checkboxes for "rural Kansas" vs. "New York City" blocking. They are all one-size-fits-all. And because we can't look under the hood, nobody has any idea what size that is.

If we're going to use third parties to censor our public libraries, let's make sure they let us see what they're doing.

That's what I would have said to the Senator if I'd had a microphone of my own.

Finally, I have to say that I was impressed by the student in the balcony, a high-school student at my guess, who - after listening to the standard recap of Columbine and the standard attack on the media for giving the murderers Doom and the internet - stood up to state his case. He said that he looked at how the Columbine murderers were being described by the media and by McCain, and the description sounded a lot like himself. He played violent video games and spent time on the internet and he wasn't afraid to say so. That took guts.

McCain's plan for kids like this is twofold: first, to fund a study of "very intelligent people" to determine once and for all whether there is a link between media violence and real violence. And second, to protect parents' rights: "your parents need to know what you're doing on the internet," he told the high-school student, so that they could all sit down as a family and discuss whether it was appropriate.

I hope that kid knows about Peacefire.

Tonight, there will be a meeting on censorware at the Holland library which we hope will include both sides of this issue. Watch for a report tomorrow.

[An unfinished version of this story was accidentally posted Monday evening, and several Slashdot reader comments were lost. I apologize for the mistake. -Jamie]

Slashdot's received a lot of submissions about RIAA actions recently, and the actions of colleges taken after the RIAA sent them nasty letters. One of the interesting things about this is that the RIAA is apparently not listing any specific offenders, just sending general warnings to any and all colleges with computer networks. Under the Digital Millenium Copyright Act, copyright holders acquired several new rights, with the promise they wouldn't abuse them. They're abusing them. (More...)

A good example is a demand letter to a Swiss university, ETH Zurich, which demands that the school immediately terminate all web pages with illegal MP3 files (illegal is of course a judicial decision; the letter presumes that all MP3s are illegal); that the school provide names and home addresses of all students with MP3 files hosted on the school's servers; that the school provide the date that those MP3 files were first hosted (for every MP3 on every server); and that the school provide the IP address for every machine anywhere on the internet which downloaded a MP3 file from the school's servers.

The letter closes with a carrot: we'll adjust our monetary demands based on how well you comply with this letter. Better hope your IP address doesn't appear too many times in those web server logs.

We can probably assume that the demands to U.S. schools are much the same - far-reaching, extortionate letters which are not specific about any particular infringement alleged to be occurring, but which are intended nonetheless to scare the universities into cracking down on their students. The terms of the compromise of the Digital Millenium Copyright Act were that the RIAA and related groups would do the policing of their copyrights - if they found a specific file that they alleged was unlawfully infringing, they have a procedure to follow, specific information to provide about the specific infringing file, and the ISP (college or whatever) is supposed to "do their part" by deleting/removing said file if the paperwork is correct. ISPs and colleges are not supposed to do the grunt work themselves - that results in the kind of overbroad crackdowns that we've seen. This was the subject of specific negotiations during the process of creating this law.

But the RIAA, of course, would prefer that schools and ISPs do their cracking down for them. So they send these general scare letters, hoping to trigger a reaction.

Scare tactics work. Universities scan through student computers, trying passwords on protected directories. The new Rio players will incorporate all of the RIAA's desired protections against copying of MP3 files - the price of settling the RIAA's lawsuit. The next target is Napster.

RIAA will now be filing suit against Napster, an application which effectively functions like a single purpose IRC server, connecting people who want to share MP3 files, whether legally or not. (There's a linux port of Napster; better download it quick.) Some schools, like Oregon State University, are so scared they're blocking all access to Napster servers from school systems. In the ideal world, Napster should probably win - the RIAA could monitor their servers and demand that infringing users be eliminated, but the service equally provides people with an avenue to share legal MP3 files, and this significant non-infringing use is all that is needed under copyright law. The article I just linked to and a nice Wired story both show Napster feebly trying to insist on their duties under the DMCA, saying that the RIAA needs to tell them in writing about specific instances of infringement - but the RIAA doesn't care about the law.

Napster, of course, has no money to fight a lawsuit. This is exactly what happened to the Rio: they won in court, but since the RIAA planned to appeal the suit and drain more money out of Diamond Multimedia, they settled by promising that future Rio's would include the RIAA's copyright protections. Like the Dentist's extortion tactics in Cryptonomicon[1], RIAA lawsuits are equally powerful whether they are on solid legal grounds or not - Napster will lose this suit, whether they win or lose, because the RIAA can afford the money to fight it and Napster cannot. So presumably Napster and RIAA will come to some agreement, settle the lawsuit, and Napster's next generation will incorporate the RIAA's demanded copyright protection system.

Just remember, RIAA CEO Hilary Rosen says she loves the idea of Napster to build communities, "but not on the backs of huge mega-corporations with billions of dollars of revenue quarterly."[2]

The RIAA is hardly the only abuser. The Business Software Alliance, essentially a front group for protecting Microsoft's copyrights, does similar things with regard to "pirated" software. (What a PR genius it was who thought of describing all copying of software as piracy! Probably the same person behind the "cyber-squatter" label for anyone who owns a domain that a company covets.) The BSA is now raiding homes of people accused of copying software.

The idea behind copyright is to expand the amount of information available to the public by creating a government-mandated monopoly on reproducing it - for a limited time (28 years maximum, at the beginning - today the maximum copyright term could be over 150 years). Copyright has always has the inherent give-back to society - the work would pass out of protection, and then anyone could copy it and use it as they saw fit. But copyright is now essentially unlimited - over the last twenty years, the length of the copyright period has increased by forty years, so that essentially no materials produced since World War I have entered the public domain. In about 15-18 years, copyright holders will again be petitioning Congress to extend the copyright term, so that entities like Mickey Mouse never enter the public domain. The extension is now being challenged as unconstitutional, but the challengers lost in District Court and it's far from certain that this suit can succeed.

In today's world, it's customary to speak of copyright as some sort of innate right. It isn't. It's there for the betterment of society, but its functioning, today, contributes nothing to society - all it is is a government-sanctioned monopoly transferring money from your pocket to others, with nothing ever given back - and no possibility of give-backs until 2019, under current law.

We need to rethink copyright. It's not a fundamental right of corporations to receive a 95-year government monopoly. Businesses plan on a five-year cycle - if something isn't forecast to make a return on investment in five years, it doesn't get done. A five-year grant of copyright to corporate authors would serve just as well in promoting the development of new material, and would bring a tremendous amount of material into the public domain, which is copyright's true intent. With a much smaller amount of material actually under copyright, enforcement of it would be far simpler and more straightforward.

But naturally this would cost certain companies a lot of money - they're used to wallowing in their government-granted monopoly. Disney has made back their costs for creating Mickey Mouse billions of times over, but they're used to the cash flow now and would be willing to buy an entire Congress to protect it. The Digital Millenium Copyright Act was passed with the aid of a great deal of subterfuge, but most importantly, a great deal of campaign contributions. Now you can be a criminal not just for actually copying anything, but for making a "device" (hardware or software) which facilitates copying - we're talking five years in Federal prison. Imagine doing five years in Federal prison so that Congress can protect their campaign donations, errr, I mean, Disney's cash flow.

We're extremely close to the day when debuggers are illegal. Through threats, strategic campaign donations, and outright extortion practiced on upstart companies, copyright-holders like the RIAA are building copyright protection into the very infrastructure of computing.

Making changes in this system requires a fundamental commitment from the U.S. populace that it be changed. The commitment doesn't exist yet, but as more and more people experience the power of copyright to affect what they can and cannot publish online, and the abuses of the companies dedicated to protecting copyright beyond the terms of the increasingly-protective law, perhaps it will in the future.

Some slashdot readers will no doubt say, "Open source, you idiot!" Open source is a reaction to these problems, not a solution to them. Despite the open source phenomenon, the trend is toward more and more works being locked up, and locked up permanently, behind laws and cryptographic protocols. It shouldn't have to be a war between words, pictures and code that is always free to use and words, pictures and code that is locked up for all eternity - we should demand that the social contract envisioned in the Constitution be fulfilled by forcing copyright holders to give back to society, whether they want to or not.

-- Michael Sims

[1] Gratuitous Cryptonomicon reference provided free of charge.

[2] Quote may not reflect Rosen's exact words, but does reflect her intent.

Seth Scali writes "The Electronic Signature in Global and National Commerce Act was nixed by the House of Representatives on Monday. According to the article over at ZD Net, the vote was 234 to 122-- or about 1/2 of what would be needed to pass." It needed a 2/3 majority. Most Congressmen seem to agree that we need some sort of legally binding digital signature capability, but say they don't think the current proposal offered enough security or consumer protection. Oh, well. Maybe next time.

Phluck writes "This is a little old, but it hasn't yet been brought up here as far as I know. There is a bill called the Methamphetamine Anti-Proliferation Act of 1999 that Senators Hatch and Feinstein are attempting to pass that would restrict drug-related speech on the internet. They don't want people to get information on the manufacture of methamphetamine. Some more information on this can be found at the Lycaeum." Looks like it's been in the Senate Judiciary Committee since July; will it be coming out?

doctorfaustus writes "According to CNET, The Unsolicited Electronic Mail Act of 1999 is being considered by the House of Representatives today." He echoes a lot of people's concerns when he calls this "taking a baseball bat to a pingpong ball." You can sue for $500 per email (!), and if the spammer doesn't stop, that amount triples. What effect will this have on valid internet communication?

(We'd provide a Thomas link, but as doctorfaustus points out, it doesn't seem very up-to-date.)

kabir writes "Computerworld Daily reports that a House of Representatives Subcommittee has just passed a bill (H.R. 850) easing crypto export restrictions. Interestingly, there are also clauses preventing government officials from forcing people to decrypt data. It's not law yet, but looks like it's headed that way. " It passed unanimously in the subcommittee and is headed out to the general House.

Salgak1 writes wrote in to send us Washington Times Article about Rep. Tom Bliley (R-VA) introducing a bill to make an electronic signature legally equivalent to one done on paper. Here is The Bill. Seems Sen. Abraham (R-Mich) introduced a similar bill in the Senate. (Full Text

Kevin writes "To make all the slashdot readers more informed on the WIPO bill, here are some links. This is the bill being voted on in the House, H.R. 2281 This is the treaty as proposed by WIPO. This is the EFF info page about the WIPO bill. And the bill EFF supports in place of H.R 2281 "

Kevin writes "To make all the slashdot readers more informed on the WIPO bill, here are some links. This is the bill being voted on in the House, H.R. 2281 This is the treaty as proposed by WIPO. This is the EFF info page about the WIPO bill. And the bill EFF supports in place of H.R 2281 "

Job Seeker writes " This is a story on the intense lobbying effort mounted by Silicon Valley to increase the legal immigration quota via the Senate bill and the opposition they face led by Rep. Lamar Smith, whose competing bill while still increasing the quota will also add provisions that protect the American worker. Industry leaders that include the CEOs of Microsoft and Intel opposed Smith's bill on the grounds that it adds needless red tape and makes the whole skilled immigration process unworkable for them. Also, have a look at: link which describes Silicon Valley's growing influence in Washington politics. "

Job Seeker writes " This is a story on the intense lobbying effort mounted by Silicon Valley to increase the legal immigration quota via the Senate bill and the opposition they face led by Rep. Lamar Smith, whose competing bill while still increasing the quota will also add provisions that protect the American worker. Industry leaders that include the CEOs of Microsoft and Intel opposed Smith's bill on the grounds that it adds needless red tape and makes the whole skilled immigration process unworkable for them. Also, have a look at: link which describes Silicon Valley's growing influence in Washington politics. "

John McBride writes "Gray Davis, Democratic Candidate for the State of Calfifornia, yesterday announced his support for the continued relaxation of immigration laws to allow overseas software professionals into the U.S. While companies such as IBM, Sun and Microsoft argue that this step is necessary for the U.S. to remain competitive in the software market, others view this as a ploy to flood the market with low wage employees More Information Even More Information. Recently, Senate Bill S.1723 passed by a wide margin, creating a new class of immigrants ("H1C") that allows over 90,000 Math, Computer Science and Engineering professionals to come into the U.S. as of this year. Both California Senators, Boxer and Feinstein, voted yea on this bill ( Search here by bill number S.1723.ES, or read who voted what on the bill). Have declining Math and Science scores placed America's high-tech firms in a position where they must look overseas for qualified engineers? Or are they trying to increase profitibility by reducing labor costs? There are never any guarantees in life, but is it proper to target a single profession for immigration? "

Stanford Wallace, aka "Spam King" has officially announced an end to spamming on his part. Instead, he will try a new scheme in which ISP will actually be paid to receive the mail, in some ways an attempt to legitimize the practice. Additionally, he will try and help the Netizens Protection Act. Sounds good-if all of this is true. A "peace treaty" of sorts has been signed, but it is hard to believe that spam can be stopped by one guy quitting, or a law being passed.