EFF Makes Call For DMCA Help

I received a request for help from the EFF, who've made a call for examples of how the anticircumvention provision of the DMCA impacts the world of the ordinary fair user. I've included the full text from them below -- please add your comments with examples. The Electronic Frontier Foundation

We are looking for diverse, real world examples of the ways in which the lives of ordinary fair users are strangled by the anticircumvention provision of the Digital Millennium Copyright Act (DMCA).

According to Judge Kaplan's ruling in the New York DVD Case (where 2600 publisher Eric Corley was ordered to take down DeCSS and any links to DeCSS), the DMCA makes circumventing access controls wrong, regardless of the reason you are circumventing. If your circumvention intentions are grounded in fair use, good for you. Fair use continues to be constitutionally protected by the First Amendment, but making and providing circumvention tools and even circumventing to do legal fair use is no longer allowed, thanks to Section 1201 of the DMCA.

Applying this rule to videos would mean that although recording David Letterman is constitutionally protected, the use of VCRs and Circuit City's "trafficking" in them are illegal.

We at the EFF feel that following this path will essentially destroy fair use. We foresee countless scenarios where librarians can't create a copy of encrypted material to archive, even if the archiving itself is a lawful use; professors can't use excerpts of encrypted material in classrooms even though the excerpts are a form of protected expression; scholars can't write their own computer programs to analyze the full digitized versions of copyrighted works in all media; and music aficionados can't customize digital searches for thematic research. But what else?

Surely there have got to be more examples, and we need to collect a short but powerful list of them. Tell us your most Draconian visions for a world where circumvention is always criminal even to get to the fair use that's not. Who would lose? And how?

Points will be given for brevity, concreteness and the ability to have your grandmother easily grasp the problem. Demerits applied for overuse of technical jargon, long-winded diatribes and multiple, repetitive messages. The winning scenarios may be discussed in our legal briefs, and, if they're very good, maybe even relied upon in a landmark legal decision throwing the statute out as unconstitutional.

Let's "open source" this problem.

Thanks,
EFF

Comments

Re:Medical Records may be "owned" by software

[Anonymous Coward]

I'm the sysadmin for a small local law enforcement agency. We have a proprietary custody management system that we've had for a very long time, and recently purchased some optical fingerprint capture stations using federal grant funds. One problem, though, was that the arrest data had to be entered twice; once into the fingerprint system, and once into the custody system. We asked both vendors to provide quotes to integrate the two systems, and the total cost was in the five figure range. It might not seem like a lot, but for a small department like ours that's a Godzilla-sized bite out of the budget.

It took two of us less than a month to reverse engineer the file formats and comm protocols on both systems and write our own interface in-house. Both vendors were hopping mad, but there really wasn't much they could do about it. We didn't break any laws, and we didn't violate any contract agreements we had with them.

Because of the DMCA, we'll probably be barred from doing anything like that again in the future. We can't risk having our software disabled, and we won't condone breaking a law. Not even a bad one. We'll just have to pay whatever amount of money the vendor demands, and siphon off the funds from the school district or the street department or whatever. This law is going to cost the taxpayer, one way or the other. They'll either get decreased service levels from government, or they'll pay more to get the same.

Some examples

[Masem]

SDMI: needless to say, the ability of the music company to control how you can listen to your music, as well as forcing you to obtain a 'new' copy for a different device that you might want to play on, goes against fair use. Having a program that removes the protection but allows the music to be heard on any device you own will be illegal, though the final use is fair use.

HDTV: Broadcasters have been fighting to get into the HDTV standard a bit of data that prevents the ability for digital devices to record a show, even for purposes of time-shifting. Fair use in time-shifting has been upheld by the SC, but having a device that 'unintentionally' ignores this bit would be illegal.

Loss of older media to the public domain

[John Fulmer]

If IP controls had been in effect from the dawn of media (records, tapes, etc..), I would not be able to transfer my beloved copy of Yogi Yoresson's "Yingle Bells" from it's origional 78 RPM record to CD. I would not be able to transfer my copy of "The Carl Stalling Project" from tape to CD (in which it is not available). I would not be able to preserve a friend's origional Edison cylinder recordings to CD.

If IP controls existed on books from day 1, I would not be able to read my 1885 edition of the 'Last Days of Pompeii', or my 1900's Harold MacGrath books, or almost half of my collection.

What this boils down to is this: If IP is locked to a specific media, the ability to read those media will eventually be lost and the IP will be lost to the public domain and to the general public. If you find a bunch of Edison cylinders, you may not be able to find a player, but you can build one fairly easily. If, in the year 2090, you find a bunch of DVD's, how will you be able to recover the audio and video from them? When the next big thing comes out for video, do you HAVE to buy all your favorite movies again, many of which may not be available?

Another one.

[VValdo]

• I'm an inventor. I've realized how inefficient the modern DVD player is. I mean, you can only play one DVD at a time, for God's sake. So I've just invented a prototype for "Waldo's DVD Jukebox," an inexpensive computer device that stores and plays up to 50 DVD movies which I can access from ANY TV in the house using my remote control! The problem-- using my prototype is illegal, since it requires copying DVD movies onto the computer's hard drive.

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Hypothetical Scenario

[kramer]

I by a GeekBrand(tm) DVD player. Geekbrand is licensed and approved by the DVD-CCA DVD player. GeekBrand's CEO pisses off the DVD-CCA by failing to call them "your impereal majesties". All future DVD releases don't have the Geekbrand key on them.
This leaves me with a legally purchased DVD player that will not show any new DVD's. I am then forced to either buy a an "approved" player, or circumvent the encryption to view legally obtained movies on my legally obtained player.

Secured Documents, Proprietary formats

[goliard]

Admittedly, this can result in less-than-ideal formatting information, but in an ideal world it's the content that's much more valuable than the presentation.

Excuse me, reality interrupt.

First, you clearly haven't the faintest idea how much a quality designer costs per hour. I have worked for (among many others) grade-school textbook publishers. After spending thousands of man hours preparing camera-ready copy -- graphics, charts, graphs, layouts, formats, cross-indexing, etc. -- I assure you, the words are not the expensive part.

Second, one of the most popular applications used for precisely that kind of document is Quark which at least used to (dunno about now) had physical security. You had to put a dongle on your ABD chain, and if that frob got lost or damaged, you can kiss your documents goodby unless you're willing to pony up for another copy.

And if your copy of Quark or PageMaker decides not to let you access your document because it has decided that you might be a copyright infringer (not of your material, but of their software), suddenly you develop quite an appreciation for applications which crack the proprietary format of those documents and converts them to something useful.

Another example: I have been hired to do programming in Excel, which allows one to "protect" documents. I have been paid tens of thousands of dollars for single "Workbooks". If you were my client in such a case and discovered you had lost the password to a such a custom Excel document, how would you feel to be told that hiring a programmer to extract the code in such a document would be illegal.

And, Gosh, it would never happen that a secretary might quit a job in a huff and neglect to mention what password she used to "protect" her company's Excel spreadsheets or WordPerfect documents.

You know what? It's not illegal to break into your own home. It's not illegal to break into the home of someone else on their behest. It's not illegal to break into your own locked file cabinet. But the DMCA makes it effectively illegal to break into your own electronic home. You lock yourself out of a document, you might be able to card the door (dictionary attack on password), but you most certainly can't break down the door (parsing the document into another format).

In some places (e.g. NY) it is illegal to own lockpicks -- if you're not a bonded locksmith. I do not see any provision in the DMCA which allows for the virtual equivalent of locksmiths -- people who own cracking tools and use them within the law.

Imagine if you had put a document into a file cabinet and locked the cabinet and then, oops, lost the key. Imagine the locksmith showing up and saying "Hey, can I borrow a bobby pin? I'm allowed to pick locks, but not if I use any tool designed to do so."

Welcome to America under the DMCA.

At my school....

[Chris27183]

I produce the Tv show for my local high school, and have recently become the target of macrovision. Sony has saw it fit to cause all their video cameras to immediately self-destruct upon trying to record macrovisioned material. However, using copywritten material for the news is explicitly protected as fair use. Unfortunately sony does not provide a provision for legal fair use. I eventually managed to get around the problem, but I see now very clearly that non-circumvention limitations would severely limit protected speech in my high school publications.

Re:Violating Yourself

[f5426]

> Since you're the copyright owner of the document, unless you're totally wigged out on cough syrup, I can't imagine you not giving yourself permission.

So it will be legal to crack you own documents. Great. But as the software needed to crack will be illegal, it will be impossible.

Cheers,

--fred

Re:Violating Yourself

[Erasmus Darwin]

Given this model, I could violate the DMCA by attempting to access my own documents

Let me preface my comments with the obligatory invocation of IANAL.

Are you referring to accessing your own documents by fiddling only with your document files or by attempting to crack the word processor so you can view your documents?

In the first case, while it's an intersting example, doesn't seem to be covered by the DMCA. More specifically:

"(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner;"

Since you're the copyright owner of the document, unless you're totally wigged out on cough syrup, I can't imagine you not giving yourself permission.

As for the second case, cracking the word processor to view your own documents, I think this would be somewhat analogous to stealing gas for your car. You can make the argument that your car is your property, but that it can't doing anything without the gas. However, I do admit that that analogy suffers from the possible flaw of trying to equate real property and intellectual property. Besides, virtually all word processors have options within them to save documents in non-proprietary formats. Admittedly, this can result in less-than-ideal formatting information, but in an ideal world it's the content that's much more valuable than the presentation.

More real life examples

[LauraLolly]

When I worked my way through college, I spent part of my time as an administrative assistant. Many of you may not remember the Wang word processors with the 8" drives.

The firm I worked for switched from Wangs to PCs without warning. Suddenly, the previous two years' work was inaccessible. I got together with a friend, and we jury rigged a Wang drive to the PC. (This took cursing and more cable than I ever want to see again.) Then we figured out a way to transfer the Wang stuff as RTF.

What we did to save the department's work would now be illegal under the DCMA, because we circumvented both hardware and software to read our obsolete information.

I also have obsolete images on CD-Rom that were processed over 12 years ago. These images are not in JPG, or even in GIF, which existed 12 years ago. They are on a proprietary format, created by a company which has since gone out of business. By the provisions of the DCMA, I am breaking the law when I try to reverse engineer the format to veiw the information.

The librarian of congress granted two short-term exceptions to the DCMA, but one is library related, while the other is related to obsolete hardware. My hardware can see the CD-ROM, and can see the fact that the files exist, and that they take up size. No software exists to let me see the pictures my husband took. The actual negatives were destroyed in a flood. The company which created this monstrosity no longer exists.

Lest anyone think that only small companies go out of business, please read Business Week for 1984 through 1986, and then discuss Wang computing.

Some possible examples.

[jd]

I'll try to keep each one brief, though at this point, I don't know how long the list itself will get. :)

1. Consumer Protection. If you buy frozen food, you have the right to expect that the package will contain the food that is listed on the front. You also have a right to expect that food to be safe for humans to consume, if handled correctly. By prohibiting the direct handling of digital information, consumers cannot guarantee their own safety.*

2. Consumer Protection II. If you were to go to a restraunt, you can be confident that, if the food is prepared in a manner which is unsafe, it will be observed and reported by consumers. Prohibiting consumers from looking to see how digital information is prepared ensures that no consumer can ever be sure if the digital products they buy are safe.*

3. The US Anti-Trust laws prohibit any company from using a monopoly in one area to acquire a monopoly in another. Any company, or group of companies, with a monopoly on the encryption technology must also have a monopoly on all players and recorders. Nobody else can build them. This also means that they have a monopoly on what gets recorded as they can decide who can use a recorder and what for.

4. It has already been decided by the US courts that digital recordings and computer programs are forms of free speech, as talked about in the first ammendment. If you were to digitally record your own spoken words, using a program you had written, and played them back, also using a program you had written, you would be performing an illegal act, even though every single thing you did was protected.

5. If it is illegal to preserve the history that is being made today, then that history will certainly be lost. The past happens only once. Many recordings in the past have been lost for this very reason. This must be weighed against the claimed possibility of a loss which cannot be known. The law favours that which is beyond all reasonable doubt. The certainty of past experience would seem to meet that. The claims on which the DMCA rests do not.

6. Medical establishments will suffer unnecessary delays in the sending and receiving of computer-based medical information. As this is the method most likely to be used only in the most critical of situations, it is likely to result in injury or death. Companies have no legal right to protection from manslaughter charges, especially if the defect is known in advance and cannot legally be prevented from harm.

*By "harm", I'm including such possibilities as:

a) Defective hardware, which cannot legally be examined for such defects, where the defect is likely to cause an electical fire.

b) Sounds, introduced by the decryption process or deliberately added at the time of recording, which interfere with the correct functioning of the senses.

c) Computer "viruses" installed by accident or design which can infect other devices.

d) The inclusion of offensive, indecent or otherwise controlled or illegal material being present on the recording or introduced by the decryption device.

In all these cases, the ability for third-party to lawfully and independently ensure that a product is acceptable is mandatory in every single part of life except that of digital recordings. At no time has there been proven damage to any other industry as a result of such safety and quality assurance.

Some scenarios

[VValdo]

Here goes...

• I purchase a DVD of a gangster movie. It has some great dialogue, and I want to play the soundtrack in my car for a long road trip. But to do so, I'd have to "illegally" remove the audio track's watermark so my RIAA-approved car tape player will play it.

• I'm the head of a library in Phoenix, AZ. People are always leaving DVDs in their cars, which melt in the 120+ summer heat. I'd like to have a backup copy, but alas, I cannot because of the DMCA.

• As a hip-hop artist, I'm mixing an album and would like to use a 2 second audio sample of a line from a movie. I also want to loop a drum fill from a watermarked CD. But my RIAA-approved sampler and audio mixer won't play them. The only way to do it is to remove the watermark.

• I'm Dr. Johnson, teaching a class to my film school students. I'd like to burn a DVD for use in the class player which contrasts the editing styles of four movies. But to remove the copy protection to make my instructive video is illegal.

• I'm a student in Dr. Johnson's film class. My assignment was to re-edit a scene from a movie on my computer using only the footage already in the movie. I'd like to "tighten up" a sequence to show the class how it could have been more efficiently edited, using a minimum of shots, but to load the movie into my computer I'd have to circumvent the copy protection, which is illegal.

• As a video artist, I create collages of peices of sound and video from movies, splashing two second clips against one another and manipulating the images to create a new kind of art. My peices are about sex and violence in the media. Unfortunately my work is illegal because I used DeCSS to copy peices of movies, even though the copying itself is protected under "fair use." My art is also effectively censored at all the venues which use RIAA-approved equipment which blocks the watermarked audio snippets.

• My wife is from Norway. She's a big fan of romance movies. There's a movie that just came out on DVD I know she'd love. If only she spoke English. I'd like to load the movie I just bought on DVD onto my computer and translate it for her by adding subtitles (It'll only take a few hours) and have her play it on my laptop. Unfortunately, to do so would make me a criminal, as I'd have to use DeCSS to copy the DVD content to my machine.

• I deplore unrealistic violence in movies. I just purchased a DVD for my little girl's christmas present, but two of the scenes are much too violent and aren't even important to the story! I'd like to remove those scenes and create a new DVD just for her. To do so, I'd have to use DeCSS, but that would be a criminal act.

• As a professional film reviewer, I often include scenes from movies in my reviews to illustrate my point. Now that I distribute my weekly show on DVD, I can't include DVD clips from movies without using DeCSS. Making my review shows, I've just learned, is illegal.

• Two years ago, I purchased a DVD containing an old gangster movie from the 1930s. Now I've learned that the movie has fallen into the public domain, meaning I can not only legally copy the DVD, I can even legally sell copies! Would DeCSS be illegal to own/use/trade under this circumstance? It seems to me this is one case where DeCSS performs a legal and necessary function, ie, giving me the capability to access newly UNcopyrighted information! Woohoo! Take that, MPAA.

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A real world example.

[mwalker]

Here is a real world example for the EFF.

This will require me to tell you all a little bit about my life:

I share a house with two other people, one other computer programmer and an air-conditioning repairman from Costa Rica I will call "John". John lives with us because, like us, he races mountain bikes, and we have built a little bike shop into the house for building and repairing race bikes. He's a good mechanic, but his english isn't very good.

We have a really good A/V setup, but no DVD player. Last week, John brought home a DVD player from Best Buy, and "The Matrix" on DVD. He hooked it into his T.V., only to discover that the picture was, as he put it, "shit".

I told John that the picture was screwy because of a technology called Macrovision, hidden inside his DVD player. It's purpose was to prevent him from criminally copying DVD's onto VHS. John said "but I don't want to do that, I just want to watch it!". I told John that the MPAA had assumed he was a criminal, and put Macrovision in his DVD player to stop his crimes. Because John's T.V. only has analog input, he cannot use his new DVD player. No one at Best Buy told him this. He has to buy a new T.V., which he can't afford.

John got mad.

Then I told John that buying a "Macrovision scrubber" to clean up the signal was against the law, as he would be owning a circumvention device. And I went on to tell him that when he went home to Costa Rica, he couldn't use any of the DVD's he bought there in his DVD player, because they had put a special code in the DVD's in Costa Rica so they wouldn't work, and he had to buy another DVD player when he went back there. If he tried to get around the code, he would be a criminal, because of a new law.

That's when John lost it. He got really mad. He threw the DVD player back in the box, took it back to Best Buy, and got his money back, but also got thrown out of the store for using his broken English to call them "Stupid Bastard Fucking People" - as he puts it.

I tried to calm John down, but I think in his culture they don't have the emphasis on restraint. When someone does something awful to you, you get angry, and you go yell at them. He doesn't understand that in America, faceless corporations do terrible things to people all the time, and you can't get mad, because all your anger will be wasted on some powerless teen-age clerk.

In America, the only way to do exert power is to spend money. That's why I donate to the EFF.

"John" now understands why the two rich guys he lives with only watch movies on VHS.

That's my real life example.

This will not be popular here but it is a...

[SquadBoy]

true story. I bought a %100 legal good to go copy of UT (Unreal Tournament). I insalled it and had a load of fun. Then as will happen the CD fell into the hands of my 5 year old son. Needless to say it did not survive the encounter. Being used to this I had made a backup copy of said CD. But it does not run. Well I then went over to the fine folks at www.megagames.com and did a end run around the copy protection. This is an example of a tool that lets me get fair use from the product I purchased the I think is legal in the context that I used it and the would be illegal under the DMCA. What do you all think?

Medical Records may be "owned" by software

[The_Laughing_God]

In the comment process for this part of DMCA, I found the following letter. I was surprised that this issue doesn't get more play

Briefly put: data produced or stored by a software package may effectively become the property of the software company, if stored in a proprietary format.

My doctor was 'held hostage' for a few years by his records software. He couldn't change packages without losing his records, even though he hated the software he was using. He finally had to hire a programmer to analyze the his records and write a converter to a tab-delimited database, so he could import it into another software package.
Under DMCA, this would be illegal. The proprietary companies often call their proprietary formats a security measure (to protect patient privacy), so it really isn't a very big step to call this 'circumvention of a security feature'

I don't know about today, but apparently this was not uncommon a few years ago -- and we can expect it to come back if DMCA gives the software companies a big stick