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Sklyarov Case Exposes DMCA Contradictions
aePrime writes: "This article on the New York Times describes how the case against Dmitri Sklyarov is bringing up some contridictions within the Digital Millennium Copyright Act. One is allowed to bypass security measures to backup data, but one is not allowed to write the software to bypass the security. It mentions how this first case to be prosecuted under the law may indeed cause changes to the law." A lot of bad laws have stuck around for longer than the DMCA has yet, but the more this kind of analysis is seen, the sooner sanity can be restored.
Once similar cases start growing in number in which the non-computer-geek common man finds their rights limited by copy protection, the case against DMCA will grow as well.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
From the article:
The Library of Congress is now considering whether to recommend other exceptions to the law. Many libraries and other educational institutions want an exception that would let individuals circumvent a copy- control technology in order to copy portions of a work for use in parody, scholarship or criticism -- purposes protected under the "fair use" doctrine of traditional copyright law.
This is the sticking point of the DMCA with me; it strips away whatever bit of fair-use doctrine we once enjoyed. No wonder most people don't like it, no one wants to lose rights they once had.
This is all fine and good, but people still have to prove they cracked whatever encryption in order to make a parody, etc. It makes for more complications in the long run.
It seems to be a poor substitute for examining its constitutionality to see if the law should still even exist.
It seems to me that in this whole debate, we need to make clear the difference between COPYright and ACCESSright. That's the real rub about the DMCA, it legally transforms copyright into accessright, and gives the copyright holder new controls not previously granted.
It is supposedly about preventing unauthorized copying. But in reality does little to prevent it and puts the publishing industries in the driver's seat in a new way.
The REAL fear here is if we get to the point where all 'media player devices' (not necessarily related to Microsoft media player) play only DMCA-encumbered media - where you can't even play non-access-controlled media if you wanted to. Then free speech and discourse necessary for democracy are in deep trouble.
The living have better things to do than to continue hating the dead.
Marybeth Peters, the chief of the United States Copyright Office, said that the exception was still meaningful, even without a market for anti- circumvention devices, because it allowed individuals to figure out for themselves how to go around a technological control measure.
/.ers couldn't even handle this.
"Many of the people I know can come up with a program to do it themselves, without being in the business of doing it," Ms. Peters said.
She has GOT to be kidding if she thinks the average consumer has the ability to design tools that will allow them to access there fair use rights. This is idiotic. Most
What she is suggesting would be like if wrenches were illegal, but you could make your own to fix your faucet that is leaking. "We believe the average consumer will find a way to make the wrenches they need." Sorry, but most people do not have the knowledge, expertise, or equipment to make wrenches. If you think most people can write code that will crack encryption, you shouldn't buy that new Lexus you have been looking at. Why not build you own car?
Lawrence Lessig is my personal hero.
As much as I'd like to see the charges tossed out now (I doubt that DS wants to be a pawn in this... he probably just wants to go back to Russia), going to trial could be quite helpful. Unlike the 2600 trial, this one could easily be painted in a better light.
One of the things his software is capable of doing is to allow blind people to read these e-books. Imagine THAT testimony in front of a jury!
And what would Adobe's representatives say when they take the stand? (and you can be sure that they will) They backed off once. Will they say "No, this hasn't hurt us." Or will they backtrack once again and call for him to be put in jail. Surely their calls to have him released will enter into the testimony?
No jury of "average" Americans will be able to wrap their heads around the technical issues of the DMCA. It's going to be the simple things like "this software allows blind people to read e-books" that will sway them one way or the other.
-S
--- What parts of "shall make no law", "shall not be infringed", and "shall not be violated" don't you understand?
"I wonder if there's a way to write to Sklyarov and to donate money for his defense? Even if the charges are dropped, which I certainly hope for, I'd consider that money well spent (a small compensation for mental pain and suffering)."
Since the Internet started to become widely popular (say around 1994-1995) I have watched a number of on-line political hoo-haa's. The furor over the Communications Decency Act I & II comes to mind.
In all of these cases I have noticed a common thread: lots of people are willing to hit the "R" key in the e-mail program and contribute a fresh rant to the discussion. Very, very few people are willing to actually DO anything that might make a difference.
OK guys, this one's important. This is pretty much a key battleground in the future of on-line rights.
In that vein, here's a suggestion: (a) get out your _manual_ typewriter and write a letter to your three members of Congress explaining your views on this situation (b) contribute $100 each to DS's legal defense fund and a fund for his family's well-being (c) write out 3 checks for $50 each to your congresspeople's re-election fund.
Now, if in 6 weeks or so I see $10 million in DS's defense fund and 150,000 letters received on Capitol Hill, then I will think that on-line activitism means something.
My prediction: $10,000, a couple of hundred letters (remember - typewritten, hand-signed, stamped, and mailed). Net effect: ZERO.
sPh