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US Copyright Office Releases DMCA Advisory Report
snogwozzle writes: "The US Copyright Office's congressionally-mandated advisory report on the effect of the DMCA is in, and at first glance it doesn't look too good. They're against undoing the definition of temporary RAM buffer copies as possibly infringing (which Jessica Litman in Digital Copyright pegged as perhaps the central dirty trick in the DMCA as it opens the door to technical access control by publishers) is turned down, so is a first sale doctrine for digitally distributed works, and the DMCA's effect on fair use is called out of scope for the report. On the other hand, they think everyone should have a backup right for media bought in digital form, like we have for software." Keep in mind that this is only looking at the DMCA's effect on the "first sale doctrine" (once a work is sold to you, the copyright holder can't stop you from re-selling it) and on the legal right to make backup copies of a computer program.
Before people go ranting and raving about the DMCA, take some time to poke around these sites:
Full text of the DMCA (see section 1201)
Legislative history of the DMCA
Prof. Touretzky's page (lots of great resources here)
General DMCA/DeCSS paper
I'm sure that there's a bunch of other places where you can go grab some knowledge...if you have any good links, post them below, because I'd be interested in reading more...
Juiced? Or Not?
The Washington Post article has quotes from the eff and American Library Association and a paragraph on Skylarov.
Best Slashdot Co
But there are other concerns that are better, more poignant, as they impacts the emulation community. One court has held that Section 117 does not excuse the making of purported backup copies of a video game embodied in ROM, because that particular storage medium is not vulnerable to "damage by mechanical or electrical failure".
Excuse me?? I've seen ROM chips blasted right off circuit boards due to voltage spikes. I know that the CDROM in my Playstation could easily get off-kilter and trash a CD beyond repair before I could stop it. But alas, this is the language of the law - dumping ROMs of any form is illegal because ROMs aren't killable, so thinks the court system.
The report reads in a contradictory fashion. They solicit views from the public against the sections of the DCMA, then get opinions from copyright holders backing the DCMA. Even their own recommendations are contradictory! Example:
1) The people writing the report feel that arguments against Section 1201 generally aren't valid (detailing the `first sale` doctrine - once a work is sold, you can do whatever you want to it [`disposition of the work`]). This section limits the rights of the copyright authors after a sale is made.
The specific grievance they haul out is CSS/De-CSS. They feel that altering first sale priviledges to require that all devices be capable of playing DVDs would be like demanding that PCs could play VHS tapes -- when, clearly, this isn't the issue at hand. They reporting group intentionally misconstrues this in their report. Then they go on to say that while CSS and region encoding may well destroy a market for reselling the used DVDs due to limited playability, that this action is not covered as a right by the first sale doctrine, so nobody's really losing anything in the scope of this law.
2) Not a half page later, the reporting group proceeds to state, -in writing-, that using encryption technology to tether a program or medium to a particular system a la WMV encryption. They state that copying a tethered copy onto a zip disk or CDRW is a useless exercise, since taking it to another system wouldn't work, regardless of whether or not you own the copyright to the media in question. This limits the ability to exercise control over the disposition of the work.
The paper notes that this limitation halfway violates the first sale doctrine, because circumventing the tethering protection in order to exercise your rights under the first sale doctrine would entail violating section 1201 as amended by the DCMA.
Does not CSS encoding and regional encoding tether your DVD to a particular player-type? If I carry my region-1 DVD to Asia, is it not preventing me from watching my licensed and owned DVD? Furthermore, if I seek to alter the disposition of the work - say, rip the DVD to MPG form so I can watch it on my computer - does not CSS encryption prevent me from exercising my rights under section 1201, as tethering technology does?
I swear, the more I read, the more infuriated I become. And congress is -reading- this slop.
As for making backup copies -- and circumventing copy protection to do so, which the DCMA prohibits -- the reporting group found that the ability to make or not make archival copies of software has little real impact on consumers as a whole. Thanks, guys - I'm not your average consumer.
They state that, for one, most copy prohibition is due to the software license itself not allowing you to make copies, so Section 117 never comes into play, as you're limited before you ever even think about the Copyright Act. Next, they say that if the software has no copy protection or licensing restriction, you can go ahead and make your one archive copy -- as per 117. Third, they state that most software comes on CDROMs, and that CDROMs *are their own archive copy*. Remember, ROM media is not vulnerable to destruction via mechanical or electronic forces. I suppose they've never seen a CD scratched beyond all recognition. *shakes his head*
The report is also loaded with obviousness.
"The recent phenomenon of the popularity of using Napster to obtain unauthorized copies of works strongly suggests that some members of the public will infringe copyright when the likelihood of detection and punishment is low."
Indeed. I wonder how much that little gem cost America's taxpayers to prepare.
All in all, I'm highly disappointed in the scope of this report, the effort expended by the people who wrote it, and the recommendations they make. I suppose I'll simply have to continue being an outlaw; these laws do not suit my idea of my rights after the first sale doctrine has been applied.
-
Wingchild
Moreso, the format that was required by the Copyright Office was PDF only, I believe, and this is typically not an easily print-to format for the casual user.
The first comment of that thread was someone offering to PDF-replies for people, so at least someone extended the hand.
The other thing: look at the time/date posted: late night on saturday. By the time the mass-monday rush comes around, that story's already off the front page.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Some good with the bad:
1. The copyright office recognizes that backups are often done on a "whole device" basis, data and all. The current archival exception doesn't actually protect this right -- it covers only computer programs. Although there is a good case for finding fair use, the CO recommends a statutory change protecting the right to do backups this way.
2. Though against a wholesale exemption of RAM copies as infringement, the CO supports special legislative exemption for streaming reproduction of licensed digital works.
Though carefully worded and limited, any official support for a right to make temporary buffer copies that are essential to the purpose of using properly licensed works for their fundamental purpose is a good thing.
I wrote my Senator complaining about the DMCA a month or so ago and here's the response I got. It doesn't look good.
Dear Mr Keal:
Thank you for writing to me about the Digital Millennium
Copyright Act.
I have always believed that the protection of intellectual
property rights is as important as the protection of any other
property right. Moreover, the protection of intellectual property is
vital to a flourishing economy -- particularly in California.
America's music, movie, and software industries are second to
none, and we export far more intellectual property than we import.
This is good for employment, and good for consumers.
Without strong copyright protections, the incentive to
innovate would be diminished. In fact, this issue was so important
to the Founding Fathers that the ability of Congress to protect
copyrights is actually written into our Constitution itself.
The Digital Millennium Copyright Act was Congress'
attempt to address the issue of copyright protection in a new,
digital age. As new technologies have developed over the past few
years, it has become increasingly difficult to protect intellectual
property from illegal copying and distribution. It is a delicate
balance, to be sure -- nobody wants to restrict the development of
new and exciting technologies, but we must work to prevent the
creation of perfect, digital copies of copyrighted works which can
be illegally distributed throughout the world.
Please be assured that I understand your concerns, and I
will keep your views in mind.
If you have other questions or comments, please do not
hesitate to write to me again, or contact my Washington, D.C. staff
at (202) 224-3841.
Sincerely yours,
Dianne Feinstein
United States Senator
http://feinstein.senate.gov
I've seen far too many 5, Insightful, posts about how it's so horrible that he was arrested for giving a speech. Of course anyone actually following the case knows that the speech had nothing to do with the indictment.
*BZZT* wrong answer, thank you for playing our game.
I knew some bozo like you was going to say that, which is exactly why I used the word "indictment" and not "arrest".
He did not sell any software. The software was sold by his employer.
Dmitry is listed on that software as the copyright holder of the software. Elcomsoft is merely a distributor.
If the crime was for selling the software, why was his boss not arrested as well?
1) Because they didn't have an arrest warrant for his boss, probably because 2) Because his boss was not listed as the copyright holder of the software and/or 3) Because they did not know his boss was going to be in the country.
If he was arrested for trafficking, why was the US broker (that handled the transaction) not arrested?
Because the US broker did not do so willfully, and stopped as soon as it found out about it.
If the crime was trafficking, why was the US broker not arrested when the crime was actually committed instead of months afterward?
Because he wasn't in the country, Russia would never have extridited, and he wasn't a big of enough deal to risk American lives to go over to Russia and capture.
The arrest warrant may have said that he was arrested for trafficking, but logic proves otherwise.
I'm not so sure about that... Adobe was trying to stop him long before they even knew about the speech. But I'll certainly agree that giving the speech pissed off Adobe and the government, perhaps enough to convince them to make the arrest where they otherwise wouldn't have. But that's just the way things work in this country. If I'm speeding and I get pulled over, and when I get pulled over I explain to the cop that I was going to a convention where I am going to give a speech on how to get out of traffic tickets, the cop is going to be much more likely to give me a speeding ticket. That doesn't mean I got the ticket for giving a speech, it just means I pissed the wrong person off and they found a way to get back at me.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
Ever since I read that quote from the head of the U.S. Copyright office which said something like, "any time a big corporation said they wanted something, we gave it to them", I've understood that public comments are for show only. They do not listen to what people want, only companies. Sorry, I can't remember the exact quote, but it really was that blatant.
Have no illusions. THe copyright office is a lapdog of the MPAA and RIAA. Public comments don't mean shit, even if you do manage to get them through.
Free Hans!
Your problem is that you still think you bought the software. You didn't. You bought a license to use that software. A non-transferable license. You're screwed.
I don't have to imagine your example, because I ran into it in 1983, with my Zenith Z-100 (not the PC clone, the original Z-100, with the S-100 bus). All their software, including MS-DOS (they called it Z-DOS), was non-transferable. If I sold the hardware the buyer would have to go to Zenith for a new copy of DOS! What a bunch of crap, right? Perfectly legal, as I did not own the software, just a license to use it. I argued that the computer was useless without the operating system, but they claimed that it was not useless, since I could write my own code from scratch and get the BIOS to load it, just like it loads MS-DOS. I never bought another Zenith product again -- any Zenith product.
If all this should have a reason, we would be the last to know.
That's what they want you to think -- doesn't necessarily make it so. Such "licenses" have been struck down for, among other things, conflicting with Federal copyright law.
Not to mention, did it clearly state on the outside of the package, that this limitation existed? I'm betting not!
That's another big problem with the world of software. You don't even know what you're agreeing to until after you buy the product and unwrap it. Once you've done that, they tell you it's non-returnable since it's opened - and you're stuck, supposedly agreeing to all sorts of outrageous licensing terms.
Have you ever examined the EULA for DeLorme Street Atlas products? I don't know about the latest version, but I've owned 2 versions of Street Atlas USA that both said it violated the license agreement to use the product with an unauthorized GPS device not manufactured by DeLorme! How many people bought this product to use with a 3rd. party generic GPS such as a Garmin, and *never* suspected that's not even allowed!