More on Virtual Child Pornography

An Anonymous Coward writes "As noted previously, the Supreme Court has ruled the "Virtual" child porn act unconstitutional. LawMeme has an analysis of the Ashcroft v. Free Speech Coalition Supreme Court decision that discusses the case's impact on copyright, DMCA, CBDTPA, and machinima as the future of pornography."

Comments

Fails to mention discussion of circumventation

[andaru]

He goes on about fair use quite a bit, but fails to mention the free speech and words vs. deeds aspect involved with discussing circumventation menthods.

He quotes from the decision:

The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it ... The government may not prohibit speech because it increases the chance an unlawful act will be committed at some indefinite future time.

It seems like this applies just as much to discussing methods for circumventing copy protection on DVDs as it does to fair use issues. The government cannot prohibit you from talking about how to copy DVDs just because it may increase your chances of actually doing something illegal with copies of DVDs.

On another note, the idea that you cannot talk about security flaws in copy protection schemes has another very negative side effect. If I wanted to copy protect my content, by paying some company to use their patented technology, I want to be able to make an educated decision about whether their copy protection methods will be effective. If I am unable to find descriptions of potential problems with these methods, how will I decide if they are secure enough to be worth the money I will pay to licence them?

Certainly the established pirates will have ways of distributing this information to each other, so they will have easier access to the circumventation methods than me, a potential customer of the technology they are trying to circumvent.

Seems pretty silly to me. If I am going to buy something, I want to be able to find out if it actually works before I spend the cash. I certainly want to be able to find out that it absolutely will not work, if that is the case.

Re:Fails to mention discussion of circumventation

[aozilla]

The government cannot prohibit you from talking about how to copy DVDs just because it may increase your chances of actually doing something illegal with copies of DVDs.

Right. What's your point? The government doesn't prohibit you from talking about how to copy DVDs.

Re:Fails to mention discussion of circumventation

[MarkusQ]

Right. What's your point? The government doesn't prohibit you from talking about how to copy DVDs.

See HR-2281 (the "DMCA") page 8, Ch 12-f-3. It says "information [...] may be made available to others [...] provided [...it is used...] solely for the purpose of enabling interoperability [...and...] to the extent that doing so does not constitute an infringement under this title".

IANAL, but this pretty clearly states that we are prohibited from talking about how to copy a DVD since actually copying one could be an infringement of the DMCA.

-- MarkusQ

Re:Fails to mention discussion of circumventation

[aozilla]

IANAL, but this pretty clearly states that we are prohibited from talking about how to copy a DVD since actually copying one could be an infringement of the DMCA.

You're wrong. That would be unconstitutional.

The quote you give doesn't even have the word prohibit in it. It says something you may do, not something you may not do. Further, you left out a key part of the sentence, "acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2)". If you are not circumventing technological measures, these paragraphs don't apply.

this pretty clearly states [...] talking [...] could be an infringement of the DMCA.

See what happens when you leave out key words?

Re:Fails to mention discussion of circumventation

[MarkusQ]

Firstly, I'll repeat IANAL, and you may well be right. Secondly, we're in full agreement that if the DCMA would/does prohibit the discussion of circumvention that would be/is unconsititutional. And thirdly, I only left out words because I was being lazy (and couldn't figure out how to copy/paste from the pdf); I assumed that the words I omited did not significantly affect the interpretation.

You seem to agree that the omitted words only restrict the paragraphs in question to cases where there is no circumvention of technological measures of copy protection.

So the only point in question is: does copying DVDs involve the circumvention of technological measures? I have always assumed that it did (and I belive that that is the position that the content "industry" would take), but I can see how you could argue that, for example, an identical copy (including the copy protection) was not circumventing the technological measures. I can also see how the courts might beg to differ.

-- MarkusQ

P.S. My base belief that the DMCA prohibits discussion of means of circumvention comes, not from reading the law itself, but from a variety of published sources, e.g. the book "Digital Copyright."

Re:Fails to mention discussion of circumventation

[aozilla]

Secondly, we're in full agreement that if the DCMA would/does prohibit the discussion of circumvention that would be/is unconsititutional.

Well, it may merely be narrowly constructed, which means that the rest of the law holds, but the part which is unconstitutional is interpreted in a way which makes it constitutional.

And thirdly, I only left out words because I was being lazy (and couldn't figure out how to copy/paste from the pdf)

In the future you might want to try "http://www4.law.cornell.edu/uscode/17/ch12.html". Just a suggestion, not a complaint.

You seem to agree that the omitted words only restrict the paragraphs in question to cases where there is no circumvention of technological measures of copy protection.

As far as strict legal meaning, the omitted words don't really matter in our discussion, because the paragraph was of the form "You may", not "You may not". But the implication you were making was that there was already something in the law saying that you may not make information available to others, while the quoted text was referring to the rule that you may not reverse engineer, thus circumventing technological measures.

So the only point in question is: does copying DVDs involve the circumvention of technological measures?

Strictly, bit copying does not, but I don't see how that matters. Copying DVDs is already illegal under copyright infringement laws. Telling people how to copy DVDs is not (unless you are directly and knowingly profiting and thus can be found guilty under conspiracy or contributory copyright infringement laws).

P.S. My base belief that the DMCA prohibits discussion of means of circumvention comes, not from reading the law itself, but from a variety of published sources, e.g. the book "Digital Copyright."

Sure, it's a common strawman argument used against the DMCA. You misrepresent the actual law, then you use that misrepresentation to knock the law down.

If you want to attack the DMCA, you should attack the things the DMCA actually does. Distributing DeCSS over the internet is illegal. Creating and distributing software to crack Adobe copyright protections is illegal. Presenting a speech on how to break anti-piracy technologies (a la Felton) is not.

Re:Fails to mention discussion of circumventation

[gilroy]

Blockquoth the poster:

Distributing DeCSS over the internet is illegal.

OK, where in the following sequence does my speech go from protected to prohibitable?

• I talk to a friend about the existence of a content scrambling system.
• I talk to a friend about the method used in CSS.
• I talk to a friend about the theoretical possibility of cracking CSS.
• I talk to a friend and describe a practicable method of cracking CSS.
• I talk to a friend and describe a practical algorithm for cracking CSS.
• I talk to a friend and describe a practical sequence of psuedocode for cracking CSS.
• I talk to a friend and describe, line by line, my Perl code for cracking CSS.
• I talk to my friend on the telephone and describe, line by line, my Perl code for cracking CSS.
• I talk to my friend on voice-over-IP and describe, line by line, my Perl code for cracking CSS.
• I talk to my friend by recording WAV files describing, line by line, my Perl code for cracking CSS, playing the files to my friend sitting in the same room.
• I talk to my friend by recording WAV files describing, line by line, my Perl code for cracking CSS, playing the files to my friend via telephone.
• I talk to my friend by recording WAV files describing, line by line, my Perl code for cracking CSS, playing the files to my friend via voice-over-IP.
• I talk to my friend by recording WAV files describing, line by line, my Perl code for cracking CSS, sending the files over email.
• I talk to my friend by recording WAV files, using a speech-to-text converter to render the speech into text, describing my Perl code for cracking CSS, and then send the file over email.
• I write out, on paper, my speech describing my Perl code for cracking CSS, and show it to my friend.
• I write out, on paper, my speech describing my Perl code for cracking CSS, holding it up to my webcam so my friend can read it, obviously over the Net.
• I write out, on paper, my speech describing my Perl code for cracking CSS, scan it in as a JPEG image file, and send that (over the Net) to my friend.
• I write out my Perl code in a text editor, then allow my friend to read the text file on my screen.
• I write out my Perl code in a text editor, then email the text file to my friend.
• I write out my Perl code in a text editor, then post the text file on my website so my friend can read it.

I don't think any of these steps, considered logically, can be considered "unprotected speech". Yet the anticircumvention statute would call that last step trafficking in a circumvention device. Since the last step is logically equivalent to the earlier ones, I believe, then all the steps are vulnerable, and hence the DMCA does muzzle speech.

The oddity is this idea that speech is a literal device.

DeCSS?

[andaru]

Isn't this what the whole DeCSS issue is about? The prevention of free speech on the basis that it disseminates information which could be used for circumventation?

What about Felten

[andaru]

First of all, I understand that the first ammendment does not extend to any speech whatsoever (such as commanding someone to commit a crime).

On your first point, the court decided that the code was speech, but it was also a device, so it is not really accurate to say "DeCSS was about code, not speech." It was more about the distinction between code and speech. Still, DeCSS probably wasn't the best example for that reason.

But what about Felten being threatened with the DMCA to cancel his presentation on security holes in audio copy protection schemes? Or what about a pseudocode version of the DeCSS code?

One of the arguments I heard in the DeCSS case was that the code was a device, and not merely speech. Can pseudocode be considered a device? How about a paragraph in plain English describing a piece of pseudocode for which an analagous piece of code could then be written in a real computer language?

My point is that whether or not the DMCA actually attempts to prohibit what should be consitutionally protected free speech (which, from what I have heard, it certainly seems to), it certainly seems to be being used by corporations to do just that.

Felten isn't a great example because he backed down instead of ignoring the RIAA and facing the music of the court, and later sued because he felt he had been stifled by illegitimate legal action, or somesuch, but the real question is, had he fought it, would the courts have sided with the RIAA or with Felten?

Why it should be legal

[Kidbro]

The Misanthropic Bitch has a fairly good article about why child porn ought to be legal.

Re:Why it should be legal

[lkaos]

Child pornography is illegal because the pictures are evidence of a criminal act.

If you see child pornography, and do not alert the police, you an accomplish after the fact to the sexual assault of a child.

Same kind of deal if you see picture (or video) of a murder and do not report it to the authorities.

So, child pornography properly falls into this category. I guess it's questionable though if a 20 year old possesses a picture of a 17 year old since there tends to be a 4-5 year grace period in most states for things like statutory rape.

Of course, the real question is whether or not it is illegal for a 12 year old to possess a picture of another naked 12 year old :) And what about a 12 year old taking a sexual picture of themself. Would that be illegal?

Re:Why it should be legal

[lkaos]

But the minute they show it to anyone else, it becomes child pornography.

This, oddly enough, does make sense. According to the law, people under the age of 18 are irrational beings. Therefore, a person over 18 could not ever be "allowed" to see such pictures as the person under 18 has no rational ability to allow the person over 18 to see such a picture.

Also, the kids could write about their sexual encounters in their diaries, but the second they show the diary to anyone its child pornography.

I think the law in the States differs here. Well, I know at least that a fictional account of people under 18 having sex is not illegal (hence the term virtual child porn). I guess a diary or such would be illegal though. I wonder what happens if a parent reads a child's diary... Would the parent have to report the diary to the police or potentially face child pornography charges?

By the way, simply posessing a picture of a naked 12 year old is not child pornography.

Yeah, it depends on the definition of pornography. Here in the states, it's really vauge in that it's anything that causes "lustful desires" in an "average person."

Needless to say the government was outraged at this ruling, specifically that the defendent, something Sharp, was allowed to write stories about little kids as long as he didn't show them to anyone else.

Well shit, I have to say that I would agree with the Supreme Court on this one. Free thought at least is an absolute. As long as you do not distribute what your thoughts are, I cannot see how anything could be considered illegal.

Re:Why it should be legal

[Kidbro]

Ah, but the topic here was posession of virtual child porn. If Peder O'Phile has a bunch of GIFs with underaged kids he might turn them over to the police, in order to help any investigation. Thing is, even if he's giving the pictures to the police (as he should) he might still have them left on his disc.

We're not talking negatives here. We're talking digital data.

Harmful versus distasteful.

[fmaxwell]

Somewhere, someone got the twisted idea that child pornography was illegal because it is, to most viewers distasteful and offensive.

Child pornography was illegal because it relied on the exploitation and sexual abuse of children. Virtual child pornography, created wholly by computer, does not endanger children. In fact, I submit that it reduces the danger to children. I would much rather that a pedophile be sitting in front of his computer screen than prowling the streets around an elementary school.

Unfounded arguments that virtual child pornography will lead to pedophiles molesting more children are illogical. People don't normally view pornography and then seek out a victim. Men who buy Playboy Magazine do not normally view it and then go out to sexually assualt women. So it makes no sense to assume that a pedophile would view child pornography and then go out to sexually assault children.

I think that the Supreme Court took a step back from the brink here. We were on the virge of creating a whole class of victimless thought-crimes that would have had a stifling effect on free speech.