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Linux Journal on the DMCA
phantomlord writes "Linux Journal has a very good summary of how the Digital Millennium Copyright Act came about and how it relates to DeCSS. " Well, how it came about was simple: the copyright industries just paid a lot of money to the right Congressmen. How to get rid of it is the more interesting question.
some excerpts from:
U.S. Supreme Court
MOTION PICTURE PATENTS CO. v. UNIVERSAL FILM MFG. CO. , 243 U.S. 502 (1917)
243 U.S. 502
MOTION PICTURE PATENTS COMPANY, Petitioner,
v.
UNIVERSAL FILM MANUFACTURING COMPANY et al.
No. 715.
Argued January 12 and 15, 1917.
Decided April 9, 1917
It is sufficient description of the patent to say that it covers a part of the mechanism used in motion picture exhibiting machines for feeding a film through the machine with a regular, uniform, and accurate movement, and so as not to expose the film to excessive strain or wear.
To paraphrase, a way to access the film media in a useful way.
The defendants, in a joint answer, do not dispute the title [243 U.S. 502, 506] of the plaintiff to the patent, but they deny the validity of it, deny infringement, and claim an implied license to use the patented machine.
i.e. I thought I could use it because I bought it.
The defendants agreed to some type of EULA that stated:
This agreement contains a covenant on the part of the grantee that every machine sold by it, except those for export, shall be sold 'under the restriction and condition that such exhibiting or projecting machine shall be used solely for exhibiting or projecting motion pictures containing the inventions of reissued letters patent No. 12,192, leased by a licensee of the licensor while it owns said patents and upon other terms to be fixed by the licensor and complied with by the user while the said machine is in use and while the licensor owns said patents (which other terms shall only be the payment of a royalty or rental to the licensor while in use).'
And you need it to view movies...
It was admitted at the bar that 40,000 of the plaintiff's machines are now in use in this country, and that the mechanism covered by the patent in suit is the only one with which motion picture films can be used successfully.
And the Questions...
This state of facts presents two questions for decision:
First: May a patentee or his assignee license another to manufacture and sell a patented machine, and by a mere notice attached to it limit its use by the purchaser or by the purchaser's lessee, to films which are no part of the patented machine, and which are not patented?
which I think means "Can you make a machine based on accessing patented tech and distribute it with a notice (license agreement) to use it only for specific media?"
Second. May the assignee of a patent, which has licensed another to make and sell the machine covered by it, by a mere notice attached to such machine, limit the [243 U.S. 502, 509] use of it by the purchaser or by the purchaser's lessee to terms not stated in the notice, but which are to be fixed, after sale, by such assignee, in its discretion?
i.e. can you do DIVX, SDMI. And control access by later changing agreed upon rules.
some judge's musings (opps, uh "Mr. Justice Clarke delivered the opinion of the court: )
This construction gives to the inventor the exclusive use of just what his inventive genius has discovered. (the patent system)
now an interesting bit
If his discovery is an important one, his reward under such a construction of the law will be large, as experience has abundantly proved; and if it be unimportant, he should not be permitted by legal devices to impose an unjust charge upon the public in return for the use of it.
wow, eh? If something is proven to be useless a patent holder shouldn't use the law to try and profit.
It would serve no good purpose to amplify by argument or illustration this plain meaning of the statute. It is so plain that to argue it would obscure it.
and a really long sentence
The statutory authority to grant the exclusive right to 'use' a patented machine is not greater, indeed, it is precisely the same, as the authority to grant the exclusive right to 'vend,' and, looking to that authority, for the reasons stated in this opinion, we are convinced that the exclusive right granted in every patent must be limited to the invention described in the claims of the patent, and that it is not competent for the owner of a patent, by notice attached to its machine, to, in effect, extend the scope of its patent monopoly by restricting the use of it to materials necessary in its operation, but which are no part of the patented invention, or to send its machines forth into the channels of trade of the country subject to conditions as to use or royalty to be paid, to be imposed thereafter at the discretion of such patent owner.
You can't extend patent protection. i.e. "You need this peice to go with that piece and we control both. Pay up."
The patent law furnishes no warrant for such a practice, and the cost, inconvenience, and annoyance to the public which the opposite conclusion would occasion forbid it.
Man, if I we use "inconvenience, and annoyance to the public."...
I think this next part is called "damning as hell" (hehe)
It is argued as a merit of this system of sale under a [243 U.S. 502, 517] license notice that the public is benefited by the sale of the machine at what is practically its cost, and by the fact that the owner of the patent makes its entire profit from the sale of the supplies with which it is operated. This fact, if it be a fact, instead of commending, is the clearest possible condemnation of, the practice adopted, for it proves that, under color of its patent, the owner intends to and does derive its profit, not from the invention on which the law gives it a monopoly, but from the unpatented supplies with which it is used, and which are wholly without the scope of the patent monopoly, thus in effect extending the power to the owner of the patent to fix the price to the public of the unpatented supplies as effectively as he may fix the price on the patented machine.
Use control over the hardware to leverage a higher price for the content, which you also control.
And in conclusion
This notice first provides that the machine, which was sold to and paid for by the Amusement Company, may be used only with moving picture films containing the invention of reissued patent No. 12,192, so long as the plaintiff continues to own this reissued patent.
Such a restriction is invalid because such a film is obviously not any part of the invention of the patent in suit; because it is an attempt, without statutory warrant, to continue the patent monopoly in this particular character of film after it has expired, and because to enforce it would be to create a monopoly in the manufacture and use of moving picture films, wholly outside of the patent in suit and of the patent law as we have interpreted it.
and in black and white
A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation, under the conclusions we have stated in this opinion, is plainly void, because wholly without the scope and purpose of our patent laws, and because, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes.
Both questions as stated must be answered in the negative, and the decree of the Circuit Court of Appeals is affirmed.
Mr. Justice McReynolds concurs in the result.
There you have it. If we can somehow make this a case of a useless technology (the Decoder/player card) being forced on customers/licensees (useless because it can easily be replaced with simple software) then perhaps there is an arguement. This all seems to be patent law and that's a big proglem (I would assume, since, IANAL, and now I know why, that's some mindbending grammar)
Mr. Justice Holmes, dissenting:
I suppose that a patentee has no less property in his patented machine than any other owner, and that, in addition to keeping the machine to himself, the patent gives him the further right to forbid the rest of the world from making others like it. In short, for whatever motive, he may keep his device wholly out of use.
i.e. He thinks it's o.k. to say "It's my ball so you follow my rules (even though I can't play alone) or you can't play. And they're my rules, so don't be thinking you can start your own game either."
Read it yourself for your own interpretation.
+&x
IntellectualCapital has on of the most even-handed accounts of the DeCSS controversy and the DMCA that I've seen in the mainstream media: http://ic.voxcap.com/issues/issue34 3/item8106.asp
The author concludes, the Digital Millenium Copyright Act "effectively gave [copyright] owners the power to write their own intellectual-property statutes." This is exactly what the MPAA is trying to do. The DMCA effectively removes fair use by making it a crime to circumvent access control even if you would normally have a legal fair use right to access the material.
Defating this will not be easy. In the MPAA suit in New York, Judge Kaplan has already decided in his Memorandum Opinion that fair use isn't even an issue the court will address:
Finally, defendants claim that they are engaged in a fair use under Section 107 of the Copyright Act.27 They are mistaken.
Section 107 of the Act provides in critical part that certain uses of copyrighted works that otherwise would be wrongful are "not . . . infringement[s] of copyright.''28 Defendants, however, are not here sued for copyright infringement.
Very frightening stuff - let the media and your representatives know what this debate is about!
Perhaps the same will occurr with the MPAA. In seeking such a congressional stranglehold on their product, it can only help the small film, independant, and tiny label businesses. They can begin to release their items under "fair use" provisions that allow people the rights they can not get from the MPAA.
This could be a real boon for them. Music and movies could be delivered free for small producers trying to make a name for themselves by a dotcom similar to NoNags. Another dotcom, similar to Broadband Download Center could give away free snippets (the first minute of a song, like Voltaire does) and sell full versions.
The MPAA in creating these regulations encourages the small creator to avoid the MPAA in order to increase their share of the marketplace. In addition the MPAA has distanced itself from it's clients and encouraged it's clients to find a new source of entertainment. I say we do just that.
-----
No Zen is good zen
I'm sorry you smashed your VCR, and before you hammer your cassette deck, know that they're both legal. The MPAA gets a royalty for every blank video cassette sold, and the RIAA gets its dues for every blank cassette and DAT sold. The law operates under the assumption that the criminal class (us) wouldn't respect the copyrights of Hollywood, so you pay every time you buy a BLANK tape. The fight over the royalty for each new recording technology is time consuming -- which explains why these technologies are on the street in Japan and Europe generally a year or two in advance of the U.S. What's interesting to me is that DVDs aren't about recording and copyright violations -- just general exercise of political muscle. Any wonder why Hollywood is such a great source of campaign funds? Any question why we need campaign funding reform? Or why we'll have to get off our collective rumps and start voting for it?
Legal precedents for the world of the future are being set NOW.
The ramifications of decisions made during this period in our history will resonate for years-- and probably decades-- to come. The Internet started as a wild, free place, but our freedoms are being chipped away in huge chunks.
Once gone, we're not gonna get 'em back.
The MPAA is really making me sick. The film industry prides itself for liberal, cutting-edge values and ideals. They're so apologetic for their actions during the McCarthy period (remember the Elia Kazan debacle during the Oscars?)
This is the Hollywood blacklist all over again.
They're doing the wrong thing for America and the world. Corporate paranoia is once again choking individual freedoms and rights to free expression and thought.
I wonder if it woudl be a good idea to appeal to prominent filmmakers as well as the movie-going public (as 2600 is doing).
Maybe go through the special effects/CGI departments (where the nerds are) for support-- then pass the word up through the ranks.
Who is powerful in the entertainment industry who might "get" this issue?
And anyone got any good contacts?
Oh my gosh! You just changed the mind of all /. readers with your uninformed post! You bastard!
Seriously though, the reason DeCSS was written for Windows was that there was no UDF (DVD style) filesystem at the time that the program was written. It was a proof of concept that the program could be written. Of course there were several hacks before this that would allow you to grab raw video off a DVD - one would just read the contents of the framebuffer. It has to be readable sometime.
What the real issue here is that you should be able to openly read your DVD and watch the video backwards if you want to, or to watch the DVD with pink plastic wrap in front of your TV. It's called fair use, look into it. In copyright law cases of the past it has actually had a strong presence.
The DVD companies should be allowed to implement whatever crypto measures they want to prevent me from using their product - however I should be allowed to do anything I want to circumvent those measures. As long as I don't redistribute the material there is no economic damage.
Sorry if this post is somewhat blunt, but that's what you get for going against the Slashdot official party line! (joke)
Scuttlemonkey is a troll
Well, I had to smash my VCR this evening. After all, it was a technology that was obviously created to bypass a copyright. Damn the politicians, damn the DMCA, Damn the MPAA, the DVDCCA and the RIAA.
The right congressmen? Try _all_ the congressmen. This voting record shows that the bill was passed uninamously, with the exception of one congressman from New Hampshire abstaining.
The bill was passed in the house by a voice vote; that means there is no record of how each Representative voted.
But really, can you blame them? This is a non-issue to the public at large, and corporate interests were at stake. The only time they'll defy the corporations is over a large public issue, e.g. campaign finance reform.
Sure, we could do this - I'm not a laywer, but this is similar to the way NDAs work. NDAs just work on a much smaller scale.
But why would we want to submit to this? The DVD-CCA and the DMCA already seek to limit (and to a good extent succeed at limiting) the rights of consumers to use the product they purchased as they see fit. The movie studios and copyright enforcers have some pretty big delusions that consumers are buying "licensed intellectual property". Granted, commercial redistribution should be illegal, but a VHS or DVD purchase is a convienence purchase, not a $15.95 homage paid to their creativity and intellectual property. IMHO, DVDs (and software for that matter) are more like toasters than contractual agreements - you buy it, its yours. If you want to microwave it or something, feel free.
By restricting the DeCSS code with a NDA, we'd be a logical extension of exactly what we're trying to fight - illogical and unfounded restrictions dictating what we can and can't know about our property. The problem is because its in source code form - the DVD-CCA is afraid of the knowledge of their "technology" rather than use of it. It's the fact that they possess the sole knowledge of the encryption scheme that gives them power over consumers and smaller corporations - the power to region-lock movies, the power to artificially drive up prices, the power to extract thousands of dollars from a business for a "key" which offers no benefits.
They fear OpenDVD because it reduces their monopoly and cuts into their already gargantuan botton-line. It's a classic power struggle.
Does this sound familiar, in any way? Substitute "Operating Systems" for "content", and "WWW browsers" or "applications" for "DVD players", and we have a rerun of Microsoft's actions over IE...
When Microsoft did it, the court held that it was illegal, and stopped Microsoft doing it (albeit too late, really...) - hopefully, the same will happen over DVD and all the restrictive trade practices associated with it (region coding, to enforce discriminatory pricing regimes, which I am told is illegal; preventing the use of competitor's products in conjunction with lawfully obtained material, almost certainly a violation of anti-trust laws...)
There have been a lot of people here who have asked the same question: "What can I do?" There's a lot we can do, but only if we do it now. If you wait even a few weeks, the entire ballgame may have changed.
- Post the code. Don't just link to it - get another copy of it out there. If you really believe in this, put yourself on the line; post the code and make a stand.
- Write up flyers and distribute them. Get actions organized with others to go out and get them distributed. We need to get the message out to the "mainstream" public.
- Refuse to see another movie made by any of the movie studios affilliated with the MPAA, ever . If you want to see the new Star Wars or Star Trek movie, you're just going to have to decide which means more to you - the next installment or your rights. If these studios want us to go back into their theaters, all they have to do is withdraw from the MPAA and demonstrate that they give a damn about their customers. Until then, to hell with them.
- Support any motion picture studio that is not a member of the MPAA. Learn to appreciate the joys of independent film.
- If you're currently arguing for a boycott of DVD, stop. It's not the technology's fault, and by doing this you hurt independent movie studios who wish to release in digital format. DVD is broken - let's keep it broken. All a boycott will do is destabilize the industry, allow the MPAA to say "see, we were right, DeCSS destroyed DVD" and give them an excuse to put even worse laws and "protections" into place. Don't boycott DVD - support it wholeheartedly.
- Write your Congressman and make your displeasure clear. It may fall on deaf ears, but even a deaf man knows when a million people want his head.
- Write letters to the editor, guest editorials, flyers, websites, everything. In the presidential election of 1992, when this administration came into office, James Carville had a very simple strategy - don't let any action go unresponded to for more than a news cycle. React fast, adapt faster, attack even faster. We're the antibodies of the Internet and this is an infection that will kill the body. Let's kill it first.
- Get informed. Read everything on this issue you can get your hands on. Don't gloss over where our case is weak - admit to it. Admit that we're weak under the DMCA - attack the DMCA itself. People will respect it more than if you fudge the facts to get a convert.
I worked in the election of 1992. In order to respond to local action faster - say, the other side was planning a local demonstration and we wanted to be present - we organized a "phone tree". Every person in this tree had a list of ten phone numbers. The person on the top of the tree would call their ten people, and each of the ten would call ten more. In under an hour, hundreds of people were in their cars and moving.We may need to organize something like this - by both email and phone. We need to be in front of television cameras, we need to be talking to reporters with notepads. Contact your local Linux users group and find out what they're doing about this. If they're doing nothing, or you have no Linux group in your area, get something organized yourself.
If you see an online poll, or a newspaper phone poll, that asks "Should hackers be prosecuted?" or anything similar, FLOOD IT . Get as close to 99% for our side as you can. Am I recommending polling fraud? You're damned right I am. It's standard practice in any U.S. political campaign.
Us Linux people have a tendency of believing that the best outcome is inevitable, because deep down we tend to believe in people. If we take the attitude that it's all going to work out because we're in the right, we are in severe trouble, because the other side is doing the same thing with a lot more resources.
We need to start dealing with this like a major political campaign against a popular and long-seated incumbent, who has vast resources and rooted connections. We need to start acting like a guerilla force against a standing army, and stop screwing around.
They want a fight? Let's give them a fight.
Rob Warren
www.iag.net/~aleris
The funny thing about this whole debate over access control for copyrights is - it all happened long ago around the turn of the century. Actually, it was a bit different the last time. The last time, it was an attempt by patent holders to expand their rights through outrageous "Licenses" and the Motion Picture Industry was fighting for freedom!
Read the Supreme Court decision in MOTION PICTURE PATENTS CO. v. UNIVERSAL FILM MFG. CO. , 243 U.S. 502 (1917) for some amusemt. Edison and the New York patent holders attempted to do all the evil things the MPAA and DVDCCA are now doing. Hopefully the Court will uphold the doctrine of "first sale" and allow thos who purchase DVDs to use them as any other piece of property that they own.
Oh, and even before motion pictures, book publishers attempted to use licenses printed inside book covers to prevent customers from selling used books after they finished reading them. History does repeat and greedy corporations don't seem to change.
I have a theory about DVD-CSS that I want to try out. I encourage debate on this, since I think it's an angle that nobody has looked at yet.
It's the idea that you can't record (not copy) your own DVD without the "official" software.
It doesn't make sense to me that you would control the use of a player for whatever system you have. It's the theory of standardization. The more you sell, the more you sell because you have become the defacto standard for that technology. That's why we use VHS instead of Beta, and why MS kicked booty on Apple. So, it's to your advantage to freely distribute your player ala IE or Acrobat Viewer or Shockwave Plugins.
The film industry is a weird thing. Hollywood was built by accountants. All movies do not make money. How? Everything is taken off of the top, what we call gross points. There is also what we call net points, where you get a percentage of what's left after expenses. Everything gets taken out of gross points, so a studio almost always fails to make a hefty profit. Of course, everyone makes money, but for tax purposes, every movie is a flop.
Now, here come the independent filmmakers. These guys make a movie for less that $50,000, so if a movie makes it big, it makes it BIG! What's even better, these guys make better movies, more suited to thinking intellectuals than the usual mass-marketed pulp.
So, the big studios see these "yahoos" coming in and taking out some slices of the pie, which are needed for the industry system to function, and need a way to up the "profit" margin.
Enter DVD and CSS. The industry gets to pick how you read and write your own DVD's. Make the cost of recording software prohibitively expensive. Don't release recording software for Irix.
The reason that these independents are making movies so cheaply is that they use computer graphics to fix up the footage during editing. That means that they can spend less time shooting on location, which is prohibitively expensive. Once you buy a good CG system, you are limited only by time.
The potential from DVD for independent filmmakers is enormous. I offer the following scenarios:
A) You're an independent filmmaker trying to get a deal to sell your film to a chain of theaters. It's very expensive to get your film transfered to celluloid (film that goes in a projector). That's what the deal guys use to preview movies. So, you burn a DVD from your CG machine (the whole movie's on your hd, remember?) and get a laptop with a DVD player. You have a very portable instant-presentation device. Oh, here, wait a minute, I have it on my laptop, I can show you right now. If you have a couple of these setups, you can take them to show at Sundance or wherever.
B) Several independents get together and form a distributed distribution organization. They use a DVD repository, and manufacturing facilities all over the world. A filmmaker makes his film, loads it on the server, and presses all over the world start distributing this DVD. Sure, it's 8Gigs, but it only gets sent out a couple of times. Big studios are all about distribution--they are the kings of it. What the independent needs is a way to get his product out there in the market. It's a major problem for independents.
C) An independent filmmaker wants to make a film with a message and is not concerned about making any profit. He puts the whole damn thing on the net and lets anybody download it free. My wife, who has a degree in theater, says that it would just make the studios go ballistic that somebody would have a good movie (better that their waste of film) and be giving it away for free.
I just don't know why anybody has thought of this. Maybe we need to start telling the independents about these capabilities that they are missing out on.
For more information about independent films, check out ifc's web page www.ifctv.com or IF magazine www.ifmagazine.com
I do what the voices on my console tell me to do.