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Analysis: The Digital Millennium Copyright Act
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.
That's the question that needs to be looked at here. What can we, as a group, as a rising political force do to stop this?
Be careful to remember something: The powers that be ("Power Elite" according to C. Wright Mills, "Ruling Class" according to Marx and Bakunin) like computer geeks right now. They think that we're interesting little beings that do things they don't understand and make them lots of money doing it. But we could very easily fall out of favor with them very quickly. All it takes is some good ol' fashioned free speech to make them revile us more than independant organic farmers.
Right now, we keep basically silent. We may post to Slashdot or usenet and bitch and complain, but the Power Elite/Ruling Class don't read Slashdot or Usenet, because they can't control it (yet, be cautious, Andover). Once we start to speak out against the decisions they're making about the way we conduct our lives, they will hit us. And the louder we speak out, the harder they will hit us. This is the way it is, and has been for centuries.
Now, don't let me discourage you or anybody who's interested in making themselves heard. Quite the opposite, I think that's what needs to be done. Here's a few suggestions that I can think of:
Forget emailing or writing your senator. Honestly, when has that ever really worked? Instead, stage a sit-in protest in his office. Force your way in, and refuse to leave until he hears you out. Notify the press. Bring U-Locks and lockboxes in case they try to drag you out. Contact people from the Ruckus Society or Direct Action Network to learn more about how to plan such an action, and what your legal options are.
Print up some honest-to-goodness propaganda. Check out Subvertise or (if you're really talented) Adbusters for some inspiration. My belief about propaganda is that it should be radical and in people's faces. Don't sugarcoat things, and don't be afraid to challenge people's concept of what's right and wrong. A poster that screams "Copyright Is Theft!" or "Information Wants To Be Free!" is going to intrigue people a lot more than one that says "We think that the DMCA is dangerous to the free software community because of the implications blah blah blah".
Third, there's going to be a lot going on in Washington, D.C. on April 16th. Remember Seat tle? Well, this should be even better. Get your butt out there and make a case against the monopolization of intellectual property. You may want to learn about more of what's going on (it's not just software that IP affects), such as the situation with AIDS drugs in Africa, or the patenting of crops by Monsanto. Also remember that the people protesting are not against globalization (well, unless you count Pat Buchanen as a protester). What we're opposed to, to varying degrees, is corporate rule, greed, and how the Power Elite/Ruling Class are using the idea of "globalization" not to open borders for the prosperity of all, but to create a new form of colonialization. Intellectual property is one major way that they're doing this.
These are a few of the options. I know you said that we should work from inside the system, and that's fine and dandy, but the truth of the matter is that direct action gets the goods. You have to get in people's faces, make them feel a little squeamish (or sometimes downright terrified if the situation is urgent enough), and force them to deal with the issues on *your* terms, without the benefit of having a speech writer churn out the BS beforehand.
Michael Chisari
The biggest threat the DMCA poses is that corporations are afraid of it. In true CYA (Cover Your Ass) mode these corporations are pre-emptively censoring and removing customers from their networks for things that may be offensive, illegal, or libelous - often with little or no supporting evidence other than an e-mail saying "I don't like so-and-so and will sue if you don't remove him."
The DMCA has locked us into a form of public-censorship by allowing ISPs to do this legally without regard to the evidence. The DMCA removed accountability controls for dozens of services and acts. This is the threat, this is why it MUST be stopped. Corporations are beginning to realize that they were not thinking when they signed on to this.. they are now realizing it is a sword that cuts two ways... and some of the smaller corporations are realizing they are ill-equipped to defend themselves against this. And how can they? The DMCA has removed the ability to fight unfair denial of resources.
Yes the DMCA does permit reverse engineering for content delivery, but if you need to bypass some copyright protection to RE the content delivery than that is flatly illegal.
Read the full text of the preliminary injunction in the New York DeCSS case and you will see that this is exactly how the MPAA is going after DeCSS.
We got duped, now we need to figure out what to do to fight it. although Jon doesn't remember the media coverage around the DMCA going through congress, I do. There was a tremendous amount of lobbying done by the software industries and the EFF. Everybody relaxed and celibrated when the Reverse Engineering clause went in, without even relizing that it was taken away immediatly in the 'Copyright Protection Mechanisms" clause.
That is where we died. That is the battlefield that we must fight on now. They thought they could beat us technically with poorly implemented encryption and we trounced them. But now the battle has moved to their battlefield, the legal system.
IANAL so what the hell do we do now?
-- I need more coffee. It's Monday. There is no such thing as enough coffee on a Monday.
Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works ( http://www.loc.gov/copyright/1201/anticirc.html )
DO NOT JUST EMAIL! READ THE SUBMISSION REQUIREMENTS
File a reply comment to the MPAA's or other pro-DMCA submission.
I am really beginning to resent the fact that Slashdot feels the need to go out prostelitizing in the name of all "Geek-dom". Quite frankly I am embarrassed for some of the people here on slashdot for holding the views that they hold. Furthermore, it gives people who are geeks but do not share your views a bad reputation. Quite frankly, I don't believe in your communist, "productive-mind raping" views. I think it's great when someone decides to put their work up in the public domain. But I also believe in an individual or organization's right to proprietary ownership of their own work. So please, Mr. Katz, and the rest of you slashdotters, please don't go around screaming "these are geek views", because not all geeks think alike. That's what makes the geek community so great; the wild variation and depth of views and intellectual pursuits. If I wanted to participate in a clone culture I'd go where the real action is: MSDN.
Now the software industry is doing the same thing. Constitutional rights be damned.
('we' being 'the citizens of the United States of America' for all the foreign slashdotters.)
That's the question that needs to be looked at here. What can we, as a group, as a rising political force do to stop this? They ('they' being 'the forces of big business who want to control our minds in a way that Orwell may have not imagined at all') have managed to run this through the Congress using tremendous amounts of money that your average geek doesn't have. (The only one that DOES would be Gates, and we can be pretty sure he doesn't care either.)
Some ideas:
Anyone else have ideas as to how we can turn things around within the system? I'd prefer to start inside than try to break it from outside.
Brazil has decided you're cute.
Colleges are not ISPs, and bandwidth isn't free. They have very limited bandwidth for their userbase, often doubly hampered by halfassed attempts at upstream providers. If ANY application starts pegging their outgoing traffic at 100% 24/7, they're going to ban it or shut it down.
I spoke with the admin of a large university in upstate New York, who told me that the actual content of the traffic doesn't concern him unless someone complains about it - but if any one person or application starts using huge amounts of bandwidth, irrespective of what they're doing, he'll move to shut them down.
So long as bandwidth isn't free, Napster cannot exist in the high-speed environment of a university LAN. While I personally don't like the DMCA and would like nothing better than to see it repealed, this particular issue has nothing to do with it.
1.Katz talks about how wonderful the Net is in allowing new artists to make it around the record industries selection procedures. The whopping majority of mp3s being traded, however, are the works of the bigshot celebs who have already made it. Sure the new kids have a chance to distribute their music, but it's not as though they've suddenly found an equal market. The primary purpose of mp3s is (and always has been) to steal the latest best-selling albums so that you don't have to fork out a couple bucks for it.
Oh puh-lease. The primary purpose of MP3's is and always has been to steal the latest best-selling albums? Wake the fuck up! The primary purpose of MP3's has been to make it easier to widely distribute audio--something that big companies have had a stranglehold for a long time now.
It's no suprise that the MP3 format gets used for piracy--it's made for distributing audio! You say that "the whopping majority of mp3s being traded, however, are the works of the bigshot celebs who have already made it." I know this is probably obvious to most people but I'll take some time to explain this to you:
Local musicians commonly spent US$10 PER CD to have CD's manufactured so they'd have something to give to their fans, AT A LOSS. The big studios, OTOH manufacture billions of CD's at a fraction of the cost, then sell them in thousands of stores across the world. Now, does it really seem like much of a suprise that most of MP3's available happen to be the same music that has been the most widely available?
7.It all comes down to theft. We want to steal music that other people have spent millions to produce, and they want us to pay for it instead. We're pissed off because they're coming ever closer to preventing us from illegally copying their works. We have no right to be as righteously indignant as Jon Katz has portrayed himself
It does NOT all come down to theft. The fact is that MP3's are gaining popularity with local musicians who want a method to distribute their music without getting bent over by a major record label in the process. Stopping the distribution of MP3's is the only way for the big labels to insure their dominance. In case you haven't been paying attention, piracy by MP3 has not hurt them. The threat is music that is distributed by MP3 that is NOT pirated.
There is no music revolution. We're just trying to find better ways to steal.
God this is such a troll...you keep using the word "We" a lot, and I know that should have been an indicator early on... If you're speaking as a member of the RIAA then I apologize, you're not a troll and I applaud your honesty on this point.
Well "we", as in my group of friends, are very excited about the opportunity to use the MP3 format to distribute music globally. The fact that the MP3's we will produce in the coming month will face hurdles getting onto college campuses due to the efforts of the RIAA helps no one but the members of the RIAA.
No, without the ability for everyday people to distribute digital audio without the RIAA as middle-men, there will be no music revolution.
numb
- Katz talks about how wonderful the Net is in allowing new artists to make it around the record industries selection procedures. The whopping majority of mp3s being traded, however, are the works of the bigshot celebs who have already made it. Sure the new kids have a chance to distribute their music, but it's not as though they've suddenly found an equal market. The primary purpose of mp3s is (and always has been) to steal the latest best-selling albums so that you don't have to fork out a couple bucks for it.
- The DMCA is not trying to redefine entertainment on the web. It is trying to reclaim what is legally theirs. Record companies spend millions of dollars signing artists and releasing albums so that they can make a profit -- this is no less noble than any other business. People have found an easy way around this, however, and they're taking advantage of it. The purpose of the DMCA is to defend against outright copyright infringement, which is what we are all doing.
- College students don't have the ability to download mp3s onto college sites simply because the schools think it's harmless; They can do it because the schools generally don't know about it. Most schools will attempt to eliminate any type of non-official server they are aware of.
- I hate having to repeat this, but copyright issues are not why schools are concerned. They're primary issue is with *bandwidth*. If napster didn't hog up so much space in the pipes, nobody would give a damn.
- Free music sites did not proliferate because they piggy-backed off of educational sites where users. They proliferated because they had FREE MUSIC. Sites run off of school servers are nearly impossible to find. Go to the UC Berkeley web page and tell me where you see mp3s.
- Katz admonishes colleges and universities for worrying more about copyright infringement than about free speech; He absolutely fails to realize that these artists' never intended that their work be given away. Free speech doesn't mean "gratis."
- It all comes down to theft. We want to steal music that other people have spent millions to produce, and they want us to pay for it instead. We're pissed off because they're coming ever closer to preventing us from illegally copying their works. We have no right to be as righteously indignant as Jon Katz has portrayed himself.
There is no music revolution. We're just trying to find better ways to steal.ICQ: 49636524
snowphoton@mindspring.com
Got Rhinos?
The digital millenium copyright act certainely posses distinct dangers to existing leeway under copyright laws. But it also forces the law to "smarten up" about the digital world. That said, there are *good* clauses, like specifically allowing reverse engineering for compatibility. BRAVO!.
:-)
Before people snipe at it based on the above (which is certainely a valid perspective), I would highly encourage people to peruse the bill for themselves. Its long, yes, but very clear and direct as these things go. The complete text can be found online, but there are also many good abridged versions! Give it a shot....this is a very accessible and important document for all of us (even non-americans).
Sometimes I think its better to institute a clear law I agree with less...than to continue using a decrepit and unreliable set of rulings. AT least now I have some idea of the "official" stance on things.
-nullity-
I am nothing