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Debunking (some) DMCA Myths
An anonymous reader writes "C|Net's News.com is running an article under their Perspectives section about some of the myth and hype surrounding the DMCA. The author talks about how the EFF is exaggerating the danger from the DMCA. The author mentions that although "the DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies", groups like the EFF are not much better, engaging in "fear-mongering" and scare tactics to increase opposition."
Ok, first of all, if you haven't watched Lawrence Lessig's OSCON speech Free Culture, now is probably a good time.
Having said that, Lawrence mentions a legal battle that took place in England in the 1700's in an attempt to get Shakespeare into the public domain. Originally, English publishers managed to win a court case which said that they owned a perpetual copyright over Shakespeare.
Five years later they lost, and Shakespeare entered the public domain.
Rosen, Valenti et al are students of history. They know that the door swings both ways. I believe their thinking is that they should grab as much land as they are allowed to grab, so that when the door swings back, maybe it will be left leaning a bit to their side.
Personally I hope it swings back and flattens their faces, but we shall see.
KWTCMA
The EFF is taking a hard line on this. Do you blame them? Do you consider their views extreme? In this case, I sure as hell don't. Saying "this law isn't really THAT bad" is the same as saying "the camel only has its head in the tent".
Someone want to tell Dmitry Sklyarov that this is just a bunch of FUD and that the DMCA isn't really a threat?
To which I say, laws have been stretched by powerful interests much farther than the DMCA will have to be to create a chilling effect in the past, and while the EFF may be "exaggerating" the issues, the author does nothing to challenge the fact that nastgrams based on the DMCA can and are being used to curtail research.
"Enough of this wretched, whining monkey life." -- Marcus Aurelius, _Meditations_, Book 9, 37
People have been saying that we have to go all-out against the DMCA... since if we say it's only somewhat evil, that means we don't take it seriously. In other words, do anything we can.
Well, isn't that how the DMCA got passed? Some people said something was pure evil, and did everything they could to try and stop it... except they did too much.
Hmmm....
-- Is "Sig" copyrighted by www.sig.com?
When people are arrested after giving demo's or arrested at conferences, it's something to fear.
... news.com announces that Hitler was "a little wayward", South African apartheid was hyped by the blacks and that Elvis will be embarking on a comeback tour next week.
I'd be on easy street if I could get paid to troll like the guy who wrote that article :)
The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero
True, but not all speeches and research is presented at an 'academic conference,' now are they. It seems this implies that the author does not support research outside of a institution such as a business or university. Do employees of these places now have more rights than other people? If that's true, i'd be even more against the DMCA than the view of it they're trying to debunk!
I grant you that the EFF may be doing some exagerating, but not much.
Look at Felton's case. He was sent a threat, but when an opposition was made, the RIAA essentially said, "we didn't mean it" and "you misunderstood us."
Now what is commercial distribution and profit? You have link to a site that has an advertisement, is it commercial? I have seen a case that ruled linking to a site that has advertising makes a site commercial. What about a Amazon referrer link? or a Vonage affiliate link? does that
you commercial?
It is not the actually application of the DMCA being the problem, but the threats that spring from the vagueness of the law.
Fight Spammers!
The fact that the threats posed against Felten or 2600 or whomever may have little legal merit was never the issue with the DMCA. I was a Rice student when the Felten thing went down, and three of the seven co-authors of the Felten paper were from Rice. I can say the University was scared $hitless about the possible expense and negative PR that could follow from having to defend a civil suit by the media conglomerates.
The EFF is right. The chilling effects are real. That research can be stopped or quashed simply by a law firm's letter head containing the four letters DMCA is an egregious tragedy.
Declan says the law is bad. I agree. It is used to do evil things by evil corporations. Throw it out. Don't defend it. And certainly don't chastize the EFF.
http://starboard.flowtheory.net/
That may be well and true, but it misses the point. Lets assume Felton were sued. He is a professor. I assume he has a lawer. He certainly already had the publicity. For him a lawsuit is a mere annoyance. For someone like some young Russian programmer who comes to the states for a talk, a lawsuit is career ending. The mere fear of being sued, legimated or not, is enough to stifle any and all speech deemed fringe. That is the danger of the DMCA.
Burn Hollywood Burn
The article in question DOES make a few good points in that many of the more extravagant floggings with the DCMA probably wouldn't have held up in court, and WERE blown out of proportion by the EFF and others.
Some say that making such a big deal out of those (relative to how big of a deal they were initially) helps to motivate the public against the DCMA.
This is most likely true.
But what else can it do? It can motivate the less tech and law savvy people (IE: University administrators that control the flow of research funds) to cave immediately to nastygrams that would never manage to hold up in court.
The FUD put out on some (not all, and mostly those related to Acadamia) of the DCMA cases has allowed Hollywood to use the DCMA as a bluff, knowing that most administrations will cave instead of taking it to court.
The DCMA itself isn't as far reaching as many say it is, but by saying it is, they may have managed to allow Hollywood to use it like it is (that far reaching), unchallenged.
Dark Nexus
"Sanity is calming, but madness is more interesting."
You know that's how the AI in the Matrix figured out how to use people as batteries. It all started as an experiment to see how much energy could be created by translating the heat exhaust from geeks reading crappy articles. Then they experimented with how much energy they could collect from the force of all the keystrokes entired in the ensuing flamefest. Eventually they just decided to use everyone as a battery.
"Do not be swept up in the momentum of mediocrity." - anon
"...the DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies", groups like the EFF are not much better, engaging in "fear-mongering" and scare tactics to increase opposition.""
Let's all watch Declan McCullagh try to survive the next round of CNET layoffs by writing an article designed to piss off everyone on both sides of an issue, generating millions of hits for CNET! I wonder who the "anonymous reader" works for *cough*CNET*cough*.
He's not saying the DMCA isn't bad. He's not even saying the DMCA isn't THAT bad.
He agrees that the DMCA is bad and a threat to some people, just not to everyone the EFF said it was a show-stopper to.
He also makes a very good point: Activists that don't understand the impact of the laws they're protesting don't present very convincing cases.
-l
Fear of the law, as was pointed out, is the main objection to the DMCA. Fear of this law is an unfair burden on the citizens of the world. Why should Dimitri be arrested for something he did not do in the USA? That action by the US gov't regardless of whether is ultimately defeated in court several years and many many thousands of dollars from now is irrelevent. The relevant message is this: we WILL arrest you if we THINK that you have violated this law. Arguably, Dimitri is not in violation of the LAW. But he COULD BE found guilty...and that is the fear.
Fighting a lawsuit is a slow process even when it is a slam dunk. The starting retainer for most of the lawyers that I've hired is $1000. That's not chump change. And then the cost of the case will run higher than that even if you settle the case within a year.
Then there is the time involved. Meeting with the Lawyer. Showing up for court. Putting your life and your family's lives on hold while you grind through the legal entanglement. Everything begins to revolve around the legal case; and if you are imprisoned, then it is very difficult to continue your career. How long do you have to stay in jail before you fall far behind the bleeding edge of technology? What are the costs of being publically arrested?
The media has certainly showed the arrests and then the convictions, but how many times does the acquital make the news? If it did how many folks would be able to link the person acquited to the original arrest?
The DMCA is a power grab, and I think it is very unfair and probably unconstitutional. But its power to motivate people lies in the uncertainty of the application of the law. There are too many grey areas for any sort of comfort,a nd so it will be left to the battle fields of the courst system to determine the right and wrong of the DMCA.
As the article pointed out, many of these fears may be unfounded or exaggerated, but how much of your life are you willing to bet on it?
Creative Spelling Copyright (2002). May use without Persimmons
The EFF may be over stating some of the chilling effects a little but they're trying to get peoples attention.
On the other hand any exaggeration by the EFF pales into insignificance when compared to the exaggeration by the entertainment industry (and others) of their new rights under the law. We've seen many people threatened with dumb lawsuits which have no merit or takedown orders used to stifle free speech (scientology anyone ?).
And in a further exaggeration the entertainment industry claims that unless it gets even more draconian laws passed it will be put out of business.
The bulk of this texts argument seems to be based on what has and has not worked in a court when defended but they fail to see this is only part of the point. We all know the mojority of small companies and individuals simply can't defend themselves in court so the DMCA threats are enough.
The DMCA gives the big boys a new threat to use. A friend of mine was recently held up at gunpoint in the store where he works, he explained to me that he was 99% sure the gun was a replica and yet he didn't laugh the guy off, any ideas why?
Sometimes a threat is all you need
If you believe the buzz, you'll conclude that programmers, academics and engineers should be scared witless about being sued under the DMCA. In effect for nearly two years, the law sets protections for the codes that are wrapped around certain copyrighted content such as DVDs and electronic books.
After 2600 and DeCSS, why yes, yes I am scared witless about being sued under the DMCA. All I have to do is make something, someone finds a way to use it for copying some material, and I'm in deep trouble.
It does not matter that the DMCA doesn't apply to many situations. Most people don't know exactly what the DMCA covers...all that needs to happen is someone charges me with violating the DMCA. Regardless of whether the charge ends up being valid, you have been "tainted" and most people won't understand just how false the charges were. Having to defend yourself against these charges can result in large financial losses, not to mention the possibility of being fired.
Sometimes the method of determining the intent of a device is so esoteric, many people will think you just scraped by on a technicality.
I don't think the EFF has been hyping this enough. I can go through a day without talking to someone who has ever heard of the DMCA or the EFF. We are the beginning of a new generation, where we depend on the storage and transfer of digital information in our daily lives. It's our responsibility to make sure that this new frontier isn't locked down and commercialized before we have a chance to explore it. This is our generation and our responsibilty.
When you're standing in a pit of snakes, the moment you become complacent and careless is when they strike.
...
After this and Declan's previous article (something along the lines, "there should be a seperation of techies and state"), which seem, well, non-Declan (who is generally a fierce advocate for freedom and is anti-DMCA) I am wondering if this is applicable...
/. user community. He was last known to be in Washington DC, and is believed to have undergone philosophical changes upon employment with CNET's News.com.
/. community at http://www.slashdot.org.
** MISSING **
Declan McCullagh
ACLU Award: Free Speech
Time Magazine Advocate for: Privacy
Previous Plaintiff: Challenging the Communications Decency Act
Anti-DMCA Efforts: Intervened in the landmark DVD/DeCSS lawsuit asking the court to open proceedings.
Declan McCullagh was reported missing to the
Incident Type: DMCA Abduction
If you have information regarding the disappearance of this individual, please contact: the
"There ought to be limits to freedom"
Really. This guy is right. It's no big deal. Just ask Dmitry Sklyarov.
OK, first off, I am not a consumer, and don't like being treated like one. But I digress.
Cool and calm (i.e. passionless sheep) is what allowed the DMCA to get passed in the first place. Far fewer people would be in opposition to it if it weren't so broad and vague. The fact of the matter is, it is so vague that it COULD be interpreted in many different ways. You can't say that there is a zero percent chance of something happening when there is nothing in the law to prevent it. The fact of the matter is, the DMCA was used as a big stick to threaten researchers to bow to corporate pressure. The threat was removed, but it was still possible that the researchers could have been prosecuted under the DMCA. All it is going to take is one case as precedent and the whole game is over, that is how our legal system works. Maybe the big entertainment companies are just waiting for the right opportunity to present itself.
And if you think that they won't prosecute someone under the DMCA, think again. It is a law, and they have legal right to do so. It doen't matter what the INTENTION of the law is, it matter what the law says.
My beliefs do not require that you agree with them.
Really. He probably had to fill a deadline and came up with this, knowing it would generate a lot of interest. First he says this:
Then he goes on to say "no wait a minute, it's not so bad, we can live with it". He goes on to say, basically, how he believes the line between "encryption research" and "trafficking in circumvention devices" is completely clear and bright.
Well guess what. It ain't. I don't feel like the line between code and speech is a clear one. He even acknowledges in his article that including code in a research paper is vital:
So, by his own words, the chances of a lawsuit are not zero if you include code.
And what is code? How about some pseudocode? How about a working copy of code, except some constants are changed? How about a complete working example of code, but only in the print version? If this print version later appears on the web in full, will the author suddenly be liable? (Remember, by their own words, they went after Skylarov because his name was in the copyright notice, not because he personally was trafficking in the device.)
He then goes on to mention all the recent news items (the HP flap, IEEE, etc) and dismisses them all by saying basically: well it's bad PR for these companies, so they'll withdraw their lawsuits. Well, no thanks, "bad PR" is a pretty thin safety net.
And I also sense a vibe that traditional security research published in a journal or university web site, with lots of verbage is okay, but a bugtraq posting from "Cyb3rH4xx0r" who lives in his mom's basement is not. Well personally, I learn as much from posted exploit code as I do from long-winded papers. And any smart person could generate one from the other. Which is why a researcher should be a afraid, even if they don't use code in their paper.
So I think a security researcher has every right to be afraid of the DMCA. We know exactly why: because 1) code is not always considered speech and 2) pretty much anything can be a "technological protection measure", from bits in a TrueType font (remember that one?) to ineffective LFSR's in DVD players. Put these two together with the DMCA and you feel the chilling wind.
(And that's not even discussing the awful "takedown" provision of the DMCA, which allows copyright holders to arbitrarily take down web pages and eBay auctions. I'm surprised we haven't seen more abuse of that one from people forging affidavits.)
As a lawyer friend of mine said-- "You don't want to be the test case."
So although I think that the courts are generally balanced, I think that the "chilling effect" has to be seen by looking at the broadest interpretation of the law.
LedgerSMB: Open source Accounting/ERP
I mean, first he tells us to give up political activism because changing the law is a lost cause, so we should just write code. Now he is telling us the law ain't so bad after all.
To highlight the absurdity of this position, consider this statement from the article:
The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero. - Orin Kerr
Wow, I fell so safe at night. Now, why does need to qualify zero with "essentially". Perhaps because, um, people have been arrested? Researchers have had injuctions against releasing their findings? Corporations have waved the DMCA around to frighten people into keeping quiet?
The purpose of an overly broad law is to pick and choose who you make examples of. Sure, the risk to us is relatively minor, because we're nobodies off their radar. Wait until you create something or discover something that rubs the government, software giants, or Hollywood cartels the wrong way. It doesn't matter if they lose in court, the point is they scared us all with heavy-handed legal tyranny.
Perhaps this is furthering his "law no, code yes" proposal. Overturning the DMCA is a lost cause, so we should push it on all fronts to weaken its reach. Like a bully, it's power comes from a shared belief in its potential to harm us. When we all stand up to it we will find it shrivel into something less ominous.
While some people here think that we should exaggerate the dangers of DMCA to make it look worse than it is, I disagree. When you exaggerate, people familiar with the actual law (such as lawmakers) can see that, and you immediately discredit yourself. Highlighting the actual problems with the law makes your point valid; exaggerating facts makes your entire point invalid. Any intelligent person saw that Edward Felten would not have been prosecuted for the SDMI fiasco, for obvious reasons. Why did the EFF stretch the facts and say that he would? By doing that, they only discredited their other, valid points.
Declan is not inherently a friend of free software, a foe of the DMCA, or indeed a friend of freedom at all.
/. and elsewhere.
He is a friend of Declan, and he will do whatever it takes to advance his career, irrespective of how many people he harms in the process.
In the early days of LiViD (the first group to get a semi-working software DVD player under GNU/Linux) Declan McCullagh hung out on the livid mailing list. After he had a very good idea what was going on (work to create a DVD player under GNU/Linux) he published, in WiReD, a hysterical article about hackers writing software to enable rampant DVD piracy. The story was carried here on
As a result, several lead developers in the project were threatened with legal and criminal action (though no crime had been committed) and had to withdraw from the project. While others took over their responsibilities, this probably delayed the development of a working DVD player for GNU/Linux by a couple of months, and nearly wrecked the lives of several software volunteers.
Thanks to Declan, who never once admitted any wrongdoing (despite the flagrant yellow journalism that precipitated the problem, and likely led to the entire DeCSS fiasco as well), never once apologized, and remained quite arrogant during his entire tenure on the mailing list.
Later he passed himself off as a "friend" of freedom and an anti-DMCA activist/journalist. It gained him widespread popularity in some circles and some degree of recognition.
Now, clearly, he has determined that he can advance his carreer by toning down, perhaps even reversing, his stance on the DMCA. Hardly surprising, since, as a "journalist" he works for a publisher which is, almost by definition, a member of the very copyright cartel that is pushing the DMCA and similiar legislation.
Declan is a friend of Declan, the rest of us are tools to be used and discarded as needed to advance his own career.
Being stabbed in the back by such a person, given his history of behavior, should come as no surprise to anyone who has been paying attention.
The Future of Human Evolution: Autonomy
"Extremism in the defense of liberty is no vice; moderation in the defense of liberty is no virtue."
Would Declan McCullagh care to underwrite DMCA insurance for universities? Insurance that would pay all legal costs if the university is sued under the DMCA?
If he's right, such insurance could be profitably provided at an affordable price. Sounds like a great opportunity.
If he DOESN'T want to take that risk, then I don't see why universities, who are less well informed about the situation than he is, would ever want to assume it themselves.
"How to Do Nothing," kids activities, back in print!
"If the public believes that the DMCA is stopping Professor Felten and other researchers from conducting legitimate research, then that is a major victory for opponents of the law."
well, us the "opponents" must be making things up and this entire site is a fraud
I have just one question. A mark is the victom of a con - exactly what does the EFF have to gain from conning the easily scared? And what do companies have to gain from the chilling effect, whether or not it is actually occurring?
.. the fact that somebody seeks to profit from it, as opposed to furthur a belief or ideology they hold makes the behaviour N times less acceptable to me.
I'll never understand why people dont consider whats at stake when people deceive others; quite often you'll find the most sincere and real message comes from the dude who has little to gain from yelling 'Fire!' You can find more insidious fear mongering than EFF's call-to-arms in any ad in Business 2.0 or Wired article
Honestly, when did people start becoming more tolerant of deception and FUD, so long as it was for the Good Nature of profiteering? Doesn't that seem a little backwards, or am I just confusing this issue with the time honoured tradition of masses stroking the egos of the already powerful?
"Old man yells at systemd"
Wow, I must have missed that special issue of 2600 where they included the AOL CD-DeCSS combo CD-ROM.
I take issue with this because:
* 2600 merely published the source code to DeCSS. This is radically different from distributing a binary. The source is only a recipe, not the entire meal.
* The website only linked to where it was hosted and mirrored. The source was never available on the site itself, IIRC.
A bit of fact-checking wouldn't have hurt the author in this regard.
Where does the school board find them and why do they keep sending them to ME?
let me give you a quick example:
let's say i live in Australia amd purchase $5000 worth of DVD's there. then, i move to california. normally, because of the regional encryption nature of DVD's, all of my DVD's would now be completely useless. now, let's say i'm smart and decide to break the encryption method of DVD's so that i could watch my own, purchased DVD's. under the DMCA, that would be illegal. so my rights to fair use are in the toilet. get the picture now? if we don't make a stand today, these laws will clamp down even tighter in the future, probably throwing our fair right use completely and utterly out the window.
i bet back in the mid 1700's, you were the guy saying, 'hey everyone, english tea is really, really good. let's not rock the boat. is it really so bad paying them unrepresented taxes? c'mon everyone, the english really are nice people afterall...'
by the way, i followed the felton case very carefully examining every detail. your rendition of the justice departments' views are warped and untrue. shame on you.
yes, yes let Allan Adler badmouth the EFF all day long. but, if what he says is true, than one might ask what the EFF's motive is to do such a thing.
look, the bottom line is that money is driving this whole thing. money is enough to take away our consitutional rights little by little. if we don't put a stop to this in the beginning, then we will all me telling our grandsons how much freedom we had in the 'golden days'.
The only people I've seen defending the DMCA are those who are ignorant of what it actually says, or who stand to benefit from it commercially. I have yet to come across anyone who is both well-informed about the DMCA, and doesn't benefit from it financially, who's willing to defend it. Which camp do you fall into: ignoramus, or profiteer?
I've got nothing against making a profit, but if you do it by bribing the legislature to illegally abrogate the rights of citizens, you deserve nothing but contempt. As well as bankruptcy, when consumers stop buying your unusable crap.
If Kaplan sided with MPAA in the DeCSS case, then all the ridiculous nightmare DMCA scenarios are plausible. It's just a matter of someone being willing to press the button and then not backing off.
I remember a not-too-distant time when most people viewed Alan Cox's absurd imaginary situation where someone attacks him for disclosing Linux bugs, as being too paranoid and unrealistic. But then just last month, HP proved that it's not only the wacko EFF guys who view this sort of thing as possibly being covered by DMCA. HP lawyers saw it as a valid weapon in their arsenal.
So quit blaming EFF, Kerr. The Bad Guys have also seen how far-reaching DMCA's text actually is. For a moment there, even they thought they could use it to stop Felton. HP thought they could use it to supress information about True64. These people are not EFF plants. But they are clever and know that to minimize the chance of it being struck down, they have to push it incrementally, and slowly build up lower-profile precedents. You don't just throw the frog into boiling water; you slowly heat him.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
The wording of this article is so obviously biased towards Hollywood / proprietary software industry interests, it's disgusting. Note how they suggest the Skylarov case was a proper use of the law to prosecute true criminals:
"Actual violations of the DMCA can be punished with a civil suit for damages or, if done for commercial gain, prosecuted as criminal acts. The Justice Department indicted Dmitry Sklyarov because his employer, ElcomSoft, sold an e-book decoder that he helped to create, triggering the DMCA's criminal penalties."
So basically, this article is saying that DMCA is good as long as "true academic researchers" aren't threatened. Well guess what Mr. McCullagh, that's not the point! DMCA is a bad (unconstitutional) law because it unduly limits free speech and restricts basic personal freedom to do what you want with something that you purchased--such as editing movies for your kids to watch, extracting video/sound-bites, playing DVD's in Linux, making backup copies of media and videogames, format-shifting for use in different types of digital players, etc. DMCA is a law to enhance greedy media giants' / proprietary software companies' ability to manipulate and rip off consumers. That's all there is to it.
A rebuttal to Declan's article, from me (Ed Felten) and two others, is available on my site at http://www.freedom-to-tinker.com
In a world of one-sided analysis and opinions, I find Declan's two-sided coverage of this issue refreshing.
n .openprojects.net/pipermail/livid-dev/1999-Novembe r/001074.html
n .openprojects.net/pipermail/livid-dev/1999-Novembe r/001408.html
Were it not for his past behavior, and his willingness to damage and even destroy people for his own personal gain, I would probably agree.
But having been witness to his willingness to sacrifice others for his own personal benefit, and seeing the damage he is now causing to those trying to resist the revocation of our digital freedoms by the media and copyright cartels, I am forced to conclude that his shift is nothing more than a cynical adjustment in his career strategy.
As the the legitimacy of his "analysis" of the DMCA, others on this site have more thoroughly debunked that, and anything I say would be very redundant.
But I guess you'll have to take my opinion with a grain of salt, since my karma has been reduced to zero.
Karma is meaningless, and I for one do not dismiss your opinion. You sound like a reasonable, thoughtful person who, I believe, has been misled by Declan's legendary charm. Most people who are tend to remain so, until they themselves feel the knife stabbing in their back.
As for the LiViD issue, I refer you to the archives, where you can make your own judgement as to the events (you will also note that I defended Declan on that list, something I have long regretted in retrospect)
LiVid Archives (November 1999)
See also the previous couple of months for more background information, if you are really interested.
Some comments include:
http://web.archive.org/web/20000815215028/livid.o
http://web.archive.org/web/20000817190115/livid.o
The Future of Human Evolution: Autonomy