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StorageTek Blocks 3rd Party Maintenance with DMCA
bstone writes "According to LawGeek, a district court in Boston has used the DMCA to grant a preliminary injunction against a third party service vendor who tried to fix StorageTek tape library backup systems. The court found that third party service techs who used the 'Maintenance Key' without StorageTek's permission 'circumvented' to gain access to the copyrighted code in violation of the DMCA, even though they had the explicit permission of the purchasers to fix their machines."
So now if I want to repair a StorageTek machine I have to get their signed, sealed and delivered permission to do so? What a scam. Another compnay abusing the DMCA to squeeze more money out of us.
Apply this to cars. Your mechanic would have to get permission from Nissan to so much as open the bonnet and change the oil. Come to think of it so would you. You'd also need a court order to fill up your tank, because you need access to maitenence the car.
The third party company 'circumvented' the 'protections' that StorgaTek had put in place? What quailifies as circumvention these days? Turning numbers and letter into binary digits? Simply running code that happens to do something the copyright holder dosen't like? StorageTek placed 'protections' on the code? Does compiling, and maybe obfuscating, count as protection nowadays?
May the Maths Be with you!
The new Mini Cooper has to be returned to the dealer to have the oil changed.
From the linked blog: p.s. The Court also found, in a bizarre twist of logic, that while it is legal to load a program into RAM for repairs, it's illegal to allow it to persist in RAM while you fix it. I don't even know where to begin with that one.
I used to think, when geeks said the courts couldn't effectively decide technology cases, that the geeks were underestimating the courts.
But this, plus the recent ruling that the Wiretap Act does not apply to email because email isn't just transmitted=, it's stored on servers, makes me think that perhaps the courts have finally found an aspect of society to which they just can't seem to effectively apply the law.
Which is worrisome in a number of ways. Perhaps we needs special courts, like the tax courts, for technology issues? Or do we need entire new laws that aren't rooted in traditional property laws?
A year ago I'd have said that traditional property laws could cover technology, but events -- and the courts --seem intent on proving me wrong.
Opinions on the Twiddler2 hand-held keyboard?
I know. lets all just stop paying tax ;-)
I know this was somewhat tongue in cheek; but while not paying your taxes is not an option for most sane people there were some interesting ideas around in the 80s during the prime of the German peace movement to do civil protest by tax payments: Do pay your taxes, but either pay a miniscule amount too low (e.g. 1 USD too low) or even better, a little too much (so they own you and have nothing to hold against you). As at least here in Germany the state has to be very accurate in the payments it gets or receives (ever got one of those "Here is your great tax return of 0,03 EUR"-letters ?) you generate a huge amount of administrative overhead as the state has to remind or repay you for miniscule amounts. If enough people to this one can bring huge bureaucracies to a screeching halt.
I don't even know what to say...but I had to respond with something.
The DMCA is obviously a scourge to the freedom of information. When it was first introduced--and abused--I thought to myself "Excellent, now the absurdity and obvious problems with this law can finally be addressed, how can any rationally minded lawmaker not noticed these issues?"
Ha.
Now I realize that logic like that ranks right up there with "If it wasn't totally true, they wouldn't put it on the news..." and "The FCC can't do that....cmon, like people would let them get away with that !
Ha.
I don't know what or how, but, critical mass is obviously upon us...some day (in my lifetime anyway) I expect to see the recoil of all of these actions. What this means is a mystery to me....but, things like this can't go much farther untill the proverbial Joe Q. Sixpacks of the world become personally and financially affected...but, then again, by then....I'm sure "their" plan will be in full swing and such rogue thinkers will be dealt with appropriately.
Sickening....truely. Someone show me a glimmer of hope...please.
no, there's no need to wait for that. the swizerland decision being about if they should or should not have exclusive rights for committing repairs and thus skewing the competition by being able to sell cars way too cheap while charging way too much for the repairs - this is bad, because in most of cases this is done to confuse the customer into buying something without him being able to consider the real price of what he is buying. the real decision isn't of course about the means how such a competition skewing/customer screwing situation is reached but about that it should not be reached by any means.
that's just a way to find donald duck logic loopholes(the service codes are already kind of 'coded').
what if the firm goes under and the IP rights are sold off to some holding company that doesn't really want to provide any service to anyone and yet doesn't want to give out an inch of the 'rights' it has regarding the 'code protected' repair part? should the customers be stuffed? of course not, in the end the usage of dmca for these things will go away or dmca itself will be reconsidered(sooner or later).
world was created 5 seconds before this post as it is.
"Anything you buy can and will be used against you."
Seriously though, why does it feel like more and more companies are moving to the "drug dealer" business model? You buy product $foo, oh you'll also need product $bar, and since it has proprietary connections, you'll need add-on $foobar, and repairs can only be done by certified $foobarmen. And no, you may not use third-party anything, and you're sinking deeper and deeper into the quicksand.
Selling stuff, as in money for goods, seems to be out. Everything is supposed to be licenced, and with a list of strings attached longer than my arm. Usually convieniently "agreed to" by opening the box or clicking "yes", long after the purchase. The first, in a long string of catches.
Oh yes, and of course you have the right to read the EULA up front. Just file a request with the Central Bureaucracy (if you don't get it watch more Futurama, ep. 2x11). Not to mention, who'd spend more money on a lawyer that could understand the licence terms than the product is worth?
Why does it happen? Because consumer choice doesn't work. All but a few idealists boycott because they believe something will change within a reasonable timeframe. But these companies don't need you as a customer today, next month or next year. If nothing else because they have so many other suckers hooked. You need them and their products more than they need you. Did I mention this is the "drug dealer" business model?
Kjella
Live today, because you never know what tomorrow brings
So there's no chapter in DMCA about
- owner's rights ?
All of your rights under coptright law are revoked. You do however get the right to do whatever the copyright holder has generously "authorized" you to do.
- rights to recover you own data ?
None. If the disk gets scratched then go buy another copy. Remember, it's "good for the economy" every time you spend money.
- create interoperability when needed ?
Well, actually there is an interoperability clause! However it only permits you to descramble software, and only under very restricted circumstances. You still go to prison for descrambling anything else, like the movie or song you bought.
Very well balanced:
Producer has all rights and consumer has none.
- and in exchange for that -
Consumer has no rights and producer has all.
Well yeah, the DMCA (and pretty much every other copyright law in the last 30 years) was literally been written by laywers employed by the publishing lobby.
And that's hardly the only lopsided portion of the DMCA. For example there's the "expedited subpeona process". The DMCA essentially gives copyright holders the power to issue themselves subpeonas without judicial review, with absolutely no penalty for bogus subpeoneas. (The "under penalty of perjury" clause only applies to the claim that you are a copyright holder on something, not that he is the copyright holder of the subject of the subpeona or the allegation of infringement.) Yep, copyright holders get special "expedited subpeona" powers while actual police officers have to go through the normal subpeona process and go before a real judge while investigating rapes and murders. Copyright holders are special that way. They need powers that even the police don't have because, well, having to get a real subpeona would be, like, annoying or something. They're special that way, they get to right the laws.
Oh, and then there's the lovely notice-and-takedown process. Again, no need to go before a judge or anything, just mail off a note. The process essentially mandates that anything get immediately yanked off of the internet based on nothing more than a private demand letter.
I'm sure I've missed some other fair and balanced portions of the DMCA. If anyone thinks of anything I missed, go ahead and add it in a reply.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Things have gotten really nutty at the intersection of computers and "copyright". Once upon a time, copying a book or movie was a step that was not a normal part of usage. Today, as we've moved to a digital world copying is THE basic mechanism for accessing anything in a digital medium. However, because we are stuck on the word "copyright" we start getting these nutty cases.
I believe that the right answer is to replace "copyright" with "distributionright". Make as many copies of anything as you like for yourself. Control shouldn't be on "copying" but on "distributing". The rules would have to be tweaked appropriately to handle companies but I think that this would be a much more sensible concept.
That's what all this is about. You know it, I know it, we all know it. Companies wanting to preserve their competitive advantage slap copyrights on anything in sight and charge through the nose for maintenance and upgrades.
You can see where all this is going, this me-first grubby-fisted lusting after dollars, this coveting of "trade secrets" and "intellectual property". As this practice proliferates, and as technological devices become more and more commonplace, consumers will be faced with a double-headed devil dog of a choice over every product they buy. Either buy into a proprietary "service plan" or throw the product away as soon as it breaks.
Say goodbye to the entrepenurial repair business, say hello to a world of locked-down trade secrets, where ideas are golden geese to be guarded and coveted, and most of humanity languishes in thrall to the companies with the most ruthless legal departments.
Does it have to be this way? No. We have it in ourselves to say no to this nightmarish future. Open source is one start, the idea of knowledge as a common good, to be shared not just because superior products result from open standards, but because freedom is a basic human need, like food or air.
The real goal, however, is to resist the greed that is the source of all this stifling legal red tape, and that comes down to each and every one of us. It starts with little things, like downloading Firefox, or giving a dollar to a panhandler. The future doesn't have to suck.
One thing to also note, is that the circumvention is only for protections that protect rights the copyright holder has. One such example is copying. Access is NOT a right the copyright holder have exclusivnessly. Hence protection systems for access, like region coding or many of the protections on music CDs (that prvenst access on some devices but not really copying) are NOT protected from circumvention, youcan circumvent them all you want.
In the swedish implementation (or the draft that was arround some time ago, have not seen the final propsal), this was specifically mentioned and discussed, and also cases were some protection was both copyright related (copying) and non copyright related (like access). It was deemed that circumvention in those cases was STILL ok as it would otherwise put to much power into the hands of copuright owenr. They have the option to put in measures that relate to copyright (and have protection) or measures that that relate to other things as well (and not get protection). A quite interesting reasoning in my opinion.
Is preferential voting, as practised in Australia, such a hard concept? It works like this: Say you have 2 major parties (A, B), and 2 minor ones (C, D) on the ballot. You like C, but are pretty sure they won't win. Of A and B you prefer A. In the US, you have to just vote A if you want your vote to count. In Australia you can vote "C,A,D,B". When counted, only the first preferences (above: C) are looked at to begin with. If no candidate has over 50%, the lowest candidate is eliminated, and his votes are given to the second one listed on those ballots (above, if C is eliminated, that vote would be added to A's). And so on, till one candidate gets over 50%. Basically, it's just rolling runoffs into a single ballot. The problem is that the only ones who can change the system are those that won the last vote, so no matter what they promise about reforming the system, they never get around to it once in power.
A quick search on google showed nothing newer than late Feb 2003, when Lexmark won the first round. Knowing nothing more, I'd guess that the Lexmark decision has not been reversed, and StorageTek is merely the second to hop on the bandwagon.
If you can't compete, legislate your competition away.
The living have better things to do than to continue hating the dead.
I've heard all kinds of "it's too complicated" objections to this. But I convinced our pastor to run our parish council elections according to this method, and it was a breeze to explain it to everyone, AND the results reflected the goal - the candidate that was most acceptable to the most people won.
As someone who has voted for "third parties" in every presidential election since 1988, I would welcome a system like this.
Alas, Amazon doesn't list it, but if you can find a copy somewhere read Bureaucrats and how to annoy them by R.T. Fishall.
StorageTek is stopping people using a maintenance facility that it considers intelectual property. It is NOT stopping people from maintaining its systems, merely using its maintenance routines. People who talk about maintenance monopolies and 'not opening the hood' really should actually read what this is about!
If the said hardware and software were on the customers property doesn't the customer have the right to do anything he likes to the property regardless of lease agreements.
As long the hardware and software are returned in the same condition as supplied and no portions of code are distributed outside of the company for profit what does it matter to the supplier, they still get their money right?
Does this mean performance, monitoring and diagnostic software, the very same standard tools used by corporations with large IT installations to ensure suppliers are keeping to their SLAs are currently breaking the law?
Remember the DMCA only applies to the USA.
I've never needed any special tools, particularly. Especially not a funny key. Even the service light resetting tool can be "faked" with a simple piece of wire...
Does the Magnusson-Moss act have any relevance here? (This is what lets you do your own oil changes instead of having to take the car to the dealer...) Or does the presence of a "license" contract signed by the customer somehow void these guarantees? Or (GASP!) does the DMCA somehow override the Magnusson-Moss act?
I'm blue sky handwaving here, but I wonder if a sufficiently evil legal genious could show that any attempt to amend a law was in some way inimicable to the DMCA.
Hmmmm. Probably not, but it's an intriguing thought.
To get the DMCA changed or busted completely, this is the type of case that is critical.
Congress put a stop to this type of "false monopoly" on big ticket items a long time ago.. car manufacturer's tried to make it so that only "certified" techs (aka, dealerships) could work on their cars (and jack up the costs)...
Now, its' creeping back in. First, ink/toner cartridges. DMCA'd to the point where ONLY "dealer" brand is compatible. Second, "copyrighted bits" in communication protocols and whatnot. Big oh-oh. Now, copyrighted keys for "big rig" hardware.
Tough break for the guys in this case, but it is a true negative effect of the DMCA - a chilling of all kinds of previously legal activity.
If the DMCA is only there to punish people who are already breaking the law, for what use is the DMCA? The DMCA is simply an overbroadening of "IP" rights which clearly go against fair use (exceptioning for fair use nullifies the extended reach of the DMCA which makes the DMCA pointless). The point, however, is to have a legal basis to harrass companies and quiet those without the financial resources to defend themselves. When will a company be countersued for racketeering for suing under the DMCA? Maybe then companies will stop suing under the DMCA.
Eurohacker European paranoia, gun rights, and h
....potentially anyway, these are just off the cuff and off the top.
MS (had to do it) makes it illegal for anyone without at least a MS cert of some kind to "fix" their software, for instance. Apply that-along with this ruling- to any other propietary closed source licensed software or software/hardware combination out there, which this storage tek deal is. That could mean any official vendors computer or computerish gadget in general terms. Not make it just a hassle, or "void your warranty", just make the attempt to do so *illegal*. How many whitebox shops could get sued now by the big vendors if they chose to do so?
Automotive manufactuerers finally can make it really legal to make it illegal for third party garages to "fix" your car. note:there's a story running on Drudge now over police trials of the new "car zapper" which will let them send a blast of EM aimed at your car to halt it, by screwing up the electronics. The companies (and government) might make hardening attempts against that illegal -means you can't "fix" your car and a mechanic can't/won't take a chance on it- either
Apply the idea to other sorts of appliances and gadgets, most of them are computer controlled now, and they can make them blackbox-you can't open them up at all without violating circumvention and permission. Washers/dryers/stoves, small engines, televisions, all that stuff. The basic main idea of the ruling (it's just an injunction at this point of course) is they-they being any random company with a software/hardware combined product- can state the terms in whatever detail they want, and even if you own the product you have to still follow the terms. It's like applying a copyright license that overrules any normal fair use provisions of normal hardware ownership, if it's a combination product.
I know this is in conflict with other laws, but lately, where are the "wins"? I don't see too many. It seems like it's lose access and rights 99 to 1 lately.
Where do you draw the line then? What is sufficient for something to "deserve" to be a law? I agree with the grandparent. This kind of thing will get businesses against the DMCA, and that could lead to something actually changing for the better.
Don't believe the hype, I can assure you we (Americans) are currently living in a fascist country. Look up the definition if you do not believe me.
Thanks, Bush...assbag.
[RIAA] says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle.
Say you build and sell a widget that you wish to maintain complete control over. Under this ruling, it seems to me, it wouldn't be necessary to go to the trouble of applying passwords and keys and other sophisticated mechanisms to keep people out of your widget. Simply place a piece of tape over the cover and declare that removing this tape violates DCMA. A 3rd party comes along, removes the tape from the widget under permission of the owner (licensee?), and, bam!, you take 'em to court for violation of DCMA. Better yet, only claim the tape is there. You save even that cost. Whats the difference here?
I think you've highlighted why this is likely to back-fire on StorageTek. It is quite easy to see the lock-in to vendor servicing being a restrictive practice. If they insist on using DMCA, they may be obliged to sell products where DMCA cannot apply. i.e. Open up their firmware.
At the least, they're going to be left with a nasty mess with loads of different firmware versions for different legal regimes.
IANAL, but after reading the injunction itself, all I can think is, "Holy cow! I may have broken the DMCA myself!"
We have a large piece of CNC (computer numerical control) manufacturing equipment. The machine is purchased, not leased. The software controlling it is proprietary, but runs on a Windows NT console. The manufacturer's idea of securing their IP is to give access to the controlling software only through the Administrator logon. The OEM keeps the Administrator password.
We use the machine through an operator logon that can only execute the software, and has no access to Win NT utilities or controls. As the OEM would have it, we have no Administrator access to the OS.
We wanted to network the system, so we wheedled a field technician into giving us the Administrator password. Now it sounds as if we are violating DMCA if we log on to the console as Administrator!
To complicate matters further, I don't know whether our purchase contract says anything about whether we or the OEM hold the license to Win NT. Normally, I would expect the owner of the hardware to also own the OS license, and we've behaved as such; we've even changed the admin password. But from what I've read today, then doesn't the DMCA allow the OEM to prohibit us from having Administrator access to our own licensed OS?
This is all just entirely too weird for me.
I figure by 2030 or so my 6-digit UID will be something to brag about.
The problem with this is that the general American public will never hear of the evils of the DMCA, as the media (whether it be liberal or "fair and balanced" conservative) has an interest stake in not providing the truth. Furthermore, most people do not understand, nor care to learn about, how the DMCA strips individuals of their rights.
At my county political convention, I attempted to insert a plank into the platform denouncing the DMCA (and the Mickey Mouse copyright laws). It got struck down because people do not understand what copyright is about, and how indefinite copyrights are bad for us.
The copyrighted item which is protected is the maintance level code. You can't get to it any other way.
Client: I'm having trouble with my Storage-Tek....
Vendor: Okay, bring it in...
A few hours pass.
Vendor: Um, we've got kind of a problem here...
Client: What is it?
Vendor: Well, it turns out that the DMCA prohibits us from accessing or repairing your hardware.
Client: So, what exactly does that mean?
Vendor: Well, per contract, you agreed that submitting a DMCA-protected device for service would render the full value of the contract due immediately. This is a DMCA-protected device, so your full 5-year service contract will be due before we return the device.
Client: Okay, but is it usuable? I mean, can we get our data back.
Vendor: Unfortunately, no. It would be illegal.
Client: So you're screwing us, right?
Vendor: No, you screwed us. You bought hardware that was illegal for us to service. We can't do anything for you without breaking the law.
Client: What do you mean, illegal?! It's our data.
Vendor: Um, yes, it is your data. But you don't own the software which controls access to it - Storage-Tek does. And since this software is restricted by the DMCA, you can't legally access your data without Storage-Tek's permission. Your only option at this point is to return the device to them.
Client: So let me get this straight: You're going to charge us a full five year contract, and you don't even fix the machine?! How can you keep clients like this?
Vendor: Truth is, we can't. That's why you agreed in the contract not to send us DMCA-restricted devices. Since we cannot legally service DMCA restricted hardware, we can't restore your data. And this is why you agreed in the contract to pay off the full value of the contract if you did so - as compensation for the fact that we can no longer do business with you.
Client: So what happens if Storage-Tek goes out of business? What would you do then?
Vendor: It's not what we would do, it is what you would do. You'd probably go out of business because no one would legally be able to service your Storage-Tek machines. The next time they failed, you would irretrievably lose all of your data.
Client: So, how could we avoid this in the future?
Vendor: Simple - buy a machine that isn't DMCA-restricted.
Client: But we obviously didn't know this when we bought these machines...
Vendor: Well, it's not my problem you want to break the law....
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