I've been thinking a little about how the cuecat operates, and I think they might have a point.
You see, the whole justification behind "shrink-wrap" licenses is that a company managed to convince a judge that loading software into a computer counts as "making a copy", and therefore the user needs to be licensed to use software, as opposed to when she purchases a book, and can read the book without copying anything (except for making a chemical image on her retina, I suppose.)
I personally think that the "running software == copying" argument is nonsense, and is the cause of a lot of problems, but let's stipulate it for the sake of argument.
Back to the cuecat. The general consensus is that if you don't use the cuecat software, then the cuecat device is just a hardware device, and requires no licensing whatsoever.
However, I was just thinking...
The reverse-engineering efforts have determined that there is an EEPROM inside the cuecat that contains the serial number of the cuecat. Without that serial number, DC has no way of knowing exactly who is scanning with what cuecat. Their demographic information would be ruined if that serial number was disabled.
It has also been determined that every time the cuecat is powered up, the microcontroller reads the contents of the EEPROM, the serial number, into its own memory.
So the question is, does this count as a copying operation?
If so, then the only way for an individual to use the cuecat in full compliance with the copyright laws would be to make the hardware modification, cutting the wire between the EEPROM and the microcontroller. This way, no information would be transferred from the EEPROM storage media into the processor, and no license would be required, because no copying would be done.
Of course, this would totally destroy DC's business plan, but all we want to do is fully comply with copyright law, and this may be the only way to do it!:-)
But if you throw their software away, and just use the cuecat as a plain old barcode scanner, you won't ever go to their servers, and won't see any of these theoretical copyrighted pages.
Or if you write your own software to go directly to amazon.com for books, imdb for DVDs, etc.
This one actually has an interesting side effect that could be a 'benefit' for D.C. -- if they consistently received an unissued activation code that was signed, but the server signature is not valid, they might use that as evidence that the code is coming from someone who has circumvented their program's activation code, violating the DMCA in the process.
ahem.
Violating what section of the DMCA?
The DMCA only covers systems that control access to copyrighted works, not anything with encryption in it.
It's as if DC had set up a toll booth in the middle of an open field, then started screaming bloody murder when people simply walked around their toll booth.
I predict the hacker contingency will play with them for a few months, then something else will be the sparkly object that distracts them. Then the hacker's scanners will join the majority of idle scanners, forgotten for months at a time until someone needs to go to Radio Shack for something, and the little tickle in their hindbrain reminds them that they have a CueCat that's fallen behind their computer desk.
Except that they didn't install the software, and won't do it, because they don't want to be bound by the obnoxious license "agreement", so using the cuecat isn't really possible for those hackers, who, ironically, are probably in the top 5% of people who might actually want to buy something at Radio Shack!
I make that mistake all the time. I guess I was making paper airplanes or something in grade school when I should have been paying better attention.
Actually, what I said has it's own logic. If you write the press release first, you run the risk of spending your time on the politics of your project, getting bored, and never finishing the project. Everyone wonders, "Where's the beef?"
If you do the project first, then write the press release, you don't have that problem because, to use an inappropriate analogy, you have the beef in your back pocket.
The law refers to it as a "royalty", not a tax. Unlike "digital audio recording device", and "digital audio recording medium", there is no special definition for "royalty" in 1001 of the law. One would assume that the word "royalty" has the ordinary meaning -- the same meaning that it has throughout the rest of Title 17 (copyright law) -- a payment to a copyright holder in exchange for the rights to reproduce a work. When a radio station pays the royalty on a song, they receive the right to broadcast that song. If I'm a record company, and I want to put out a compilation album, I agree to pay royalties to all the copyright owners of the songs on that album, and in return I receive in return the right to use those songs to make legal copies of my compilation album. Etc. etc. That's the entire point of a royalty.
However, according to the White House, unlike any other royalty in copyright law, one receives no rights whatsoever from paying this "royalty"! According to the Administration brief, all that consumers get, having paid a "royalty" directly to the recording industry, is immunization from lawsuits. The administration claims that home taping is still illegal -- even though you've paid real money to the RIAA -- it's just that the AHRA says that you can't be sued for it.
So it isn't actually a royalty then. What is it?
A tax? Taxes are supposed to be for the support of government. If this is a tax, then what is going on is conversion -- this law steals public funds from the treasury and gives it directly to private companies.
What sorts of common words describe payments that insulate illegal activity?
Protection money? Graft? The true nature of the AHRA comes to light.
Seems useless to me. Why break the security of a Cisco router by putting Linux on it?
Security? What does anyone really know about the security of Cisco routers? Are you sure that there are no back doors imbedded in the IOS? Can you prove it?
Yes, innocent people have to pay for the actions of a minority of people who behave badly.
This mischaracterizes the "DAT tax"
In 1992, when the AHRA was passed, there was about as much copying of CDs onto DATs as there is copying of DVDs onto blank writable DVDs. None. The only people using DAT were:
o musicians who wanted to make high quality digital recordings without having to give away their copyrights to the recording industry to do so.
o Tape traders (The Grateful Dead sold special tickets that allowed fans to bring in taping equipment.) Tapers and tape traders saw DAT as the end of the "9th generation cassette that sounds like shit" phenomenon.
o A few audiophiles who were using it as a toy.
Blank DAT tapes cost more than CDs. DAT tapes are fragile, wear out quickly, and have all of the inconveniences associated with VHS. It's a tape. You have to rewind it. It can easily jam. There was no reason, and to this day there is no reason to copy a CD onto a DAT.
DAT's functional benefits arise from two features that have nothing to do with copying commercial recordings -- a two hour recording time with no tape flip, and rugged portableness.
There were no signs of consumer abuse of DAT in 1992, and none to this day. The DAT tax was the direct result of the RIAA holding the player manufacturers hostage -- there was a standing threat to sue the first player manufacturer who brought a consumer-oriented deck to market. This was the "problem" addressed by the AHRA, not any actual consumer use of the technology.
The wording of the AHRA reflects this. The "threat" being addressed by the AHRA was the threat of the RIAA suing player and media manufacturers, and consumers. Not consumer misbehavior.
The MPAA is not claiming that DeCSS is a trade secret violation. They are only claiming that DeCSS is illegal because it is an "unlawful circumvention device" that provides access to movies without the MPAA's permission
An unlicensed encoder does not provide access to any copyrighted works, and is not a circumvention device under the DMCA.
As for the trade secret issue.
I agree with your comments about stealing trade secrets, but no one is claiming that DeCSS was derived from a stolen copy of DVD-CCA documents. In fact, all of the evidence so far indicates that DeCSS was derived legally -- by reverse engineering a legally purchased copy of the XING player in a country where such reverse engineering is fully legal.
This is the proper, legal way to expose trade secrets.
First off, you're splitting hairs. The industry doesn't seem to give a damn about the differences between hardware and software. They consistantly refer to DeCSS as a device.
You've totally missed my point.
Movie Studio A releases DVDs using CSS, a trade-secret, unpatented and uncopyrighted scrambling algorithm.
Player Manufacturer B releases DVD players that can descramble CSS, after signing a contract to obtain those trade secrets.
Next, the trade secret is reverse-engineered, placing it in the public domain. There is NO IP protection for CSS. The MPAA letters do not claim that CSS is a trade secret, or that it is a patent or copyright violation. Their ONLY claim is that DeCSS is an "unlawful circumvention device"
My Company C releases copyrighted DVDs using an unlicensed CSS encoder.
Software Company D releases unlicensed DVD players that can descramble CSS. (livid)
Movie Studio A claims the right to sue Software Company D, based on the fact that D's players can descramble A's discs without the authority of copyright owner A.
Why does My Company C not have the right to do the same thing? My Company C never gave Player Manufacturer B permission to manufacture DVD players that can decode my DVDs.
If you sign those papers, then you are signing a oath that you believe yourself to be the inventor of the patented invention. If you don't believe that the invention is new, and don't want to participate in the theft of an idea from the public domain -- which is patent fraud -- then I would either tell the company lawyers, or have an attorney send a letter to the company lawyers, stating that you believe that you are not the original inventor of the idea, and that you believe that you would be committing purjury by signing the patent application.
If they try and fire you for refusing to participate in patent fraud, you'll have a strong case to sue for wrongful termination.
This isn't about the "freeness" of it... it is an excellent illustration that "information is information", and that any one type of information can be disguised as another type of information.
How amazing. Worthy of Alice in Wonderland. Nothing means quite what it means. All the key words in the law mean the opposite of what they say.
Digging in... The administration claims:
[T]he compromise underlying the Act involves a basic quid pro quo. In exchange for accepting the marketing of digital audio recording technology and the use of such technology for noncommercial home taping, the music industry receives financial compensation (through the Act's royalty system) and protection against serial copying. This quid pro quo was central to the agreement and the legislation that embodies it. See, e.g., Senate Report at 30 (summarizing the purpose and basic elements of the legislation).
The government's analysis of the quid pro quo is defective. There is a third party. The third party is the general public, who pay actual money directly to the recording industry; payments described as royalties The nature of the royalty collection system is hardly mysterious. It is a statistically based royalty payment system. Royalties are collected on the purchase of blank media, and paid in proportion to industry sales of works on fixed media. There is no special definition in Section 1001 for "royalty." The Government would like us to believe that unlike any other royalty payment in copyright law, and that unlike any definition of "royalty" that I can find in any dictionary, this "royalty payment" does not actually confer any right to use the material on which the royalty payments are made, but instead provides a technicality, immunizing consumers from prosecution for their still-illegal activity. This is preposterous. It turns the entire concept of a royalty on it's head! Incredibly, the government is claiming that the real purpose of the Audio Home Recording act is to protect illegal activity by getting the government involved in a "protection racket." Hardly an argument the government should be making about federal law. If this is the true meaning of Chapter 10, then it should be thrown out entirely, because the government has no constitutional authority to enter into such a scheme. I certainly hope that the courts do not buy into this interpretation.
Section 1008 does not designate any use of copyrighted works as non-infringing; it merely bars "action[s] * * * alleging infringement" based on such uses. Assuming arguendo that Napster's users are otherwise engaged in acts of copyright infringement, nothing in Section 1008 purports to render those actions non-infringing, and hence the claims against Napster for contributory and vicarious infringement would remain unaffected even if Section 1008 did apply to Napster's users.
The action against Napster is based on the activities of Napster's users. It has to be. If Napster's users had been only copying non-RIAA music, this lawsuit would not exist. The government claims, in effect, that Section 1008 means:
"No action may be brought under this title against any consumer based on...
when it actually says,
No action may be brought under this title based on...
and on and on it goes. We learn from the government that the word "non-commercial" really means "home" because they were able to find references to "home taping" in the congressional record. The law does not say "home taping". The law says "non-commercial use". Once again, we learn that the law means something different than it says.
The brief argues that because computers and hard drives have no royalties, that the music industry doesn't benefit from Napster. This is nonsense. People are buying CDRs by the millions. I go to my computer store. There's an entire wall of them. A good percentage of that wall is devoted to audio CDRs. People are buying them like they're going out of style. Why are audio CDRs suddenly so popular? Either there has been a gigantic upswing, for no explained reason, in home copying of CDs, or more likely, the boom in CDR sales, including audio CDRs, when priced competitively, is largely a result of Napster users who want to clear their hard drive, don't want to lose all their MP3s when the hard drive on their Windows machine inevitably crashes or needs to be reformatted, or want to listen to MP3s on their CD players, Napster is a 21st century adjunct to the 20th century practice of home taping -- with the same result as traditional home taping, the consumer driven production of, under the AHRA, royalty-paid music CDRs.
Finally, the government makes a tortured argument that after all that, the AHRA is inapplicable because what is really going on is distribution, and that:
[T]he Copyright Act also grants the copyright holder a separate and distinct right of public distribution - the "exclusive right * * * to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." Id. 106(3).
No need to speculate on what "copies" and "phonorecords" are. The definitions are given in Title 17, Section 101.
''Copies'' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.
''Phonorecords'' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''phonorecords'' includes the material object in which the sounds are first fixed.
The problem here is that a Napster downloader is not distributing a material object in which a work [or sound]isfixed; she is creating a copy. That's the whole point of the internet -- that you can share information without distributing material objects. If the two are to be considered identical, then the AHRA provides no protection, because even home taping is now "distribution", and the AHRA was clearly meant to protect, if nothing else, home taping. So which is it?
The government claims that copying is synonymous with distribution, that recordings aren't recordings, that royalties aren't royalties. I suppose this all makes sense to the administration lawyers who composed it, but to me it seems like a dirty attempt to recast the AHRA into a kickback/protection racket, which, sadly, is exactly what those of us who were using DAT in 1992 called it then. If the administration came out and admitted this, at least this administration would have the benefit of appearing honest, instead of acting as a shill of the recording industry, asking that laws designed to create and protect consumer rights be recast for the sole convenience of the corrupt entertainment industry, and that the only ethical interpretation of the AHRA be cast out.
This brief reflects strongly on the ethics of the Clinton administration, a fact that won't be lost on me in November.
Yeah--one big, gaping hole: the player manufacturers are not producing hardware "that can remove the copy protection on your work. " They are producing hardware that can view your work. There's a big difference.
Well, right now the DVD-CCA is in court attempting to outlaw the livid DVD player, which is software that can only view DVDs, not copy them, so apparently the recording industry disagrees with your viewpoint.
I'm strongly tempted to produce my own copyrighted work in DVD format and then sue the DVDCCA for circumventing my Technological Protection Measure.
This is an extremely interesting theoretical attack on the DMCA.
1) Create a CSS-encrypted DVD. Now that the algorithm is known, this should be trivial.
2) Get a lawyer and prepare to spend a lot of money.
3) Send cease and desist orders to one of the established player manufacturers, citing the DMCA. They are producing hardware that can remove the copy protection on your work, without your permission.
Now, the court can do one of three things:
1) Order the DVD player manufacturer to stop manufacturing DVD players (which would cause an industry stampede to Congress to get the DMCA modified or repealed)
2) Toss your claim, thus creating a precedent that the inventor of a TPM is entitled to a perpetual patent-like monopoly over the use of that TPM, and hopefully raising the eyebrows of the appeals courts and the Supreme Court.
When the DMCA is first used successfully against a large publishing company, such as an RIAA or MPAA member, it will be found unconstitutional or suddenly repealed.
Right now it's being used to crush small, upcoming companies, but it's an incredibly powerful weapon, and if a small company can figure out a way to get their hands on it and successfully use it against a big company, they will be in just as powerful a position as the lawyers who just convinced a judge to allow lawsuits against the LAPD using the RICO statutes.
I really think that the majority of Slashdotters really do care. But we really are nerds dealing in the realm of technology, and not IP law. And honestly, we shouldn't have to get our hands dirty with this nonsense. It's because we see what is happening to the folks around us that we have to pay attention.
I used to think that way too, but I've changed my mind.
Look, we all understand the concept of a plugin in software. You want to watch a flash file, you have to download the plugin that allows you to do so. Then, when you open a flash file, the flash program goes and does exactly what the author of the flash program wants it to do.
The DMCA has taken the concept of a plugin into the legal arena. The DMCA is a law that allows a publisher to replace Title 17, the entire copyright code, with a computer language "plugin."
Don't like that Title 17 Section 102 says that copyright is only available for original works of authorship? No problem! So long as your "plugin" also controls access to copyrighted works, you can take works from the public domain, encode them, and your "plugin" will eliminate that pesky part of copyright law. Glassbook is right on top of that. You can download such public domain classics as The Art Of War, The Federalist Papers, and The Politics of Aristotle -- and these public domain classics are just as protected by Glassbook's "Title 17 plugin" as if they were written yesterday.
Don't like that Section 107 allows people to make partial or complete copies of your work for fair use purposes? No problem! Your plugin can fix that!
Don't like that Section 109 allows people to sell their used books without your authority? No problem! The Glassbook plugin lets you put a stop to that. Or perhaps you would just like to charge people whenever they resell their digital books. Hey, there's no limit to what you can do, if you can replace Title 17 with your own programmed plugin!
Here's an idea... how about if a student drops out of school, their books are electronically erased so they can't sell them to a new student! Great idea! New York University's Dental School has contracted with Vital Source Technologies to create exactly that! Only possible if Title 17 can be replaced with an electronic "plugin."
Don't like that Section 109 allows the owner of a copy to display that work without permission of the copyright owner? No problem! The "CSS" plugin replacement for Title 17 allows DVD publishers to deny owners of DVDs the right to view their DVDs, unless they use "industry approved" equipment that pre-degrades the signal. And forget about extracting sections of digital video for fair use purposes... The CSS Title 17 plugin doesn't provide for that, so it is illegal!
Or perhaps you'd like to replace Section 109 with a different flavor. Want people to pay every time they press the play button to watch their own DVD? How about a book that charges you by the page to read it... or by the hour. No problem!
Anything becomes possible when you allow copyright owners to provide a "plugin" replacement for the entire copyright code, that does what they want it to do instead of what the copyright code says. Never mind that the copyright code, developed over 225 years, contains a system of checks and balances that protect both the rights of copyright owners and the rights of owners of lawful copies. That can all be cast away, and the DMCA is the law that gives copyright owners that power. The power to disregard the copyright code and impose whatever "copyright law" they can dream up. And if you circumvent someone's invented "copyright law plugin", you're risking five years in jail and a $500,000 fine.
That's what's wrong with the DMCA. It absolutely eliminates all the safeguards in copyright law that protect your right to learn; to self-educate; to have your own library; to trade in used books; to archive literary materials. Under the DMCA, you have no rights...
... unless those rights happen to be part of the "plugin" you are using.
So what to do about it?
You can directly attack the access control schemes, but that doesn't fix the problem. Broken access control schemes will quickly be replaced with better ones. This is a recipe for a never-ending, destructive arms race.
And honestly, we shouldn't have to get our hands dirty with this nonsense.
Think of things this way.
The law is the machine language of justice.
If there's anything that hackers understand, it's that when you find a broken system, and you know how to fix it, you do so. In order to fix the broken legal system, computer programmers are going to have to put down their C compilers, and get involved in learning the machine language that controls the broken legal system, and work to replace the defective subroutines with ones that perform their correct function.
Don't kid yourself into thinking that this is someone else's problem. Before the DMCA, we had laws that protected our right to learn. Not anymore. Now copyright law means whatever the publisher of a work says it means. A plugin exit has been placed in the wrong spot. The only way to remove this dangerous program misfeature is to work to have the DMCA either repealed, or struck down as unconstitutional.
Does noncommercial use entail distribution on a scale possible by Napster? Also, Napster is a business - how does that commercial "service" figure into noncommercial use by the consumer.
There's plenty of businesses that exist for the sole purpose of helping you to exercise your rights.
Xerox manufactures photocopy machines. Millions of people use them daily to copy pages out of copyrighted works for legitimate fair-use purposes, and probably lots of people use them to make infringing copies of things. Sony manufactures VCRs. Millions of people use them daily to make millions of copies of the Oprah show, so they can watch it later (legitimate time-shifting fair use), and probably lots of people use them to, for instance, rent a movie and make a copy for themselves (infringing). Napster runs an indexing service. Millions of people use Napster daily to make copies of songs.
The main difference between Napster and copy machines and VCRs is that only with Napster is it actually possible to see the sum total of what is going on. If, somehow, there were a billboard in Times square that did nothing but show a running list of all the magazine articles that were being photocopied by all the copy machines in the world, or a running list of all the video programs being videotaped by all VCR users in the world, it would be jaw-dropping. The display would be moving so fast it would be a blur. It would make Napster look like nothing.
what is the legality of Napster providing a commercial service to facilitate this?
What is the legality of a service that facilitates legal activity? Honestly, I can't think of an example where an activity is legal, but facilitating that activity is illegal... possibly distributing marijuana to cancer patients in California, but that situation is in a complete state of flux, under current litigation, so that's not really a good example.
I suppose that's the key wording anyways - "under this title". Assuming the RIAA doesn't allege infringement under title 17, this won't hold any bearing.
But all copyright law is under Title 17. If the RIAA isn't suing under copyright law, what law can they possibly sue under?
I repeat: under current copyright law, there is no such thing as a 'right to listen.
I know what you mean, but you're saying something else.
Title 17, Section 109 (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
This doesn't address the my.mp3 issue, but if you own a physical copy of a book, CD, or DVD, you have the right to read that book, play that CD, or show that DVD without the permission of the copyright owner. This is fundamental to the entire purpose of copyright -- to promote learning.
While there is indeed a big demand for better distribution of music via the internet, this is entirely up to the record companies to decide. You can't legally force the way they want to distribute their music.
Sure you can; it's called compulsory licensing, and it's why radio stations pay a fixed fee when they broadcast a song instead of individually negotiating with each record label.
However, that would be something Congress would have to add to the copyright code. Perhaps they should.
You are making the RIAA argument -- that Section 1008 only creates immunity if the copying is done using SCMS-equipped recorders, and royalty-paid media.
According to the appeals court, the distinction of whether a device (like a computer) is a "digital audio recording device" is only meaningful for the purposes of determining whether it the device/media are subject to the SCMS and royalty requirements.", not for determining Section 1008 immunity.
Why?
Section 1008 does not only grant immunity to consumers who use equipment defined in section 1001. It can't. Think about it. The law mandates SCMS circuitry and royalty payments for certain digital recording equipment only. It says nothing about any copy protection or royalty payments on analog equipment and media. Yet, the law creates immunity for use of analog as well as digital equipment and media. How can this possibly square with the RIAA interpretation? What are analog equipment and media doing in Section 1008, if section 1008 is only supposed to apply to SCMS-equipped/royalty paid equipment and media? Obviously, Section 1008 does not only create immunity when used with restricted and royalty-paid equipment, because it creates immunity for analog equipment as well! The appeals court actually thought about the law, reviewed the Diamond Multimedia case and determined that Section 1008 protects all non-commercial copying by users, not just using certain equipment.
This makes sense, because the purpose of the law is to stimulate a legal market for digital recordings, while avoiding the "grey areas" that would immediately arise under the RIAA interpretation.
As an example, you take an old record of yours, blow off the dust, and play it back on your turntable. You connect a Digital Audio Tape recorder to your receiver, and make a DAT tape of your record, on a SCMS-compliant machine, on a royalty-paid tape, for your own enjoyment.
Do we both agree that you're protected under Section 1008?
Ok. Now, you notice that the recording has pops and clicks. You want to eliminate them, so you take the DAT recorder over to your computer, connect it to your SPD/IF equipped soundcard, and read the recording onto your hard drive. You use Sound Forge, or a similar tool to remove the clicks, and add track marks, then you burn the final recording onto an audio (royalty-paid) CDR, and re-use the DAT tape.
Is your final CDR legal or illegal? Did it become illegal when you copied it onto your hard drive? Did it become legal again when you moved it onto a CDR? What is the correct public policy to best deal with this issue?
The only interpretation of section 1008 that avoids this problem of "tainted" intermediate recordings is the one provided by the appeals court -- that Section 1008 immunizes all non-commercial copying of musical works by consumers.
Slashdot Mirror
I've been thinking a little about how the cuecat operates, and I think they might have a point.
...
:-)
You see, the whole justification behind "shrink-wrap" licenses is that a company managed to convince a judge that loading software into a computer counts as "making a copy", and therefore the user needs to be licensed to use software, as opposed to when she purchases a book, and can read the book without copying anything (except for making a chemical image on her retina, I suppose.)
I personally think that the "running software == copying" argument is nonsense, and is the cause of a lot of problems, but let's stipulate it for the sake of argument.
Back to the cuecat. The general consensus is that if you don't use the cuecat software, then the cuecat device is just a hardware device, and requires no licensing whatsoever.
However, I was just thinking
The reverse-engineering efforts have determined that there is an EEPROM inside the cuecat that contains the serial number of the cuecat. Without that serial number, DC has no way of knowing exactly who is scanning with what cuecat. Their demographic information would be ruined if that serial number was disabled.
It has also been determined that every time the cuecat is powered up, the microcontroller reads the contents of the EEPROM, the serial number, into its own memory.
So the question is, does this count as a copying operation?
If so, then the only way for an individual to use the cuecat in full compliance with the copyright laws would be to make the hardware modification, cutting the wire between the EEPROM and the microcontroller. This way, no information would be transferred from the EEPROM storage media into the processor, and no license would be required, because no copying would be done.
Of course, this would totally destroy DC's business plan, but all we want to do is fully comply with copyright law, and this may be the only way to do it!
Any opinions?
- John
But if you throw their software away, and just use the cuecat as a plain old barcode scanner, you won't ever go to their servers, and won't see any of these theoretical copyrighted pages.
Or if you write your own software to go directly to amazon.com for books, imdb for DVDs, etc.
This one actually has an interesting side effect that could be a 'benefit' for D.C. -- if they consistently received an unissued activation code that was signed, but the server signature is not valid, they might use that as evidence that the code is coming from someone who has circumvented their program's activation code, violating the DMCA in the process.
ahem.
Violating what section of the DMCA?
The DMCA only covers systems that control access to copyrighted works, not anything with encryption in it.
It's as if DC had set up a toll booth in the middle of an open field, then started screaming bloody murder when people simply walked around their toll booth.
Yes, they have a cloudy future.
I predict the hacker contingency will play with them for a few months, then something else will be the sparkly object that distracts them. Then the hacker's scanners will join the majority of idle scanners, forgotten for months at a time until someone needs to go to Radio Shack for something, and the little tickle in their hindbrain reminds them that they have a CueCat that's fallen behind their computer desk.
Except that they didn't install the software, and won't do it, because they don't want to be bound by the obnoxious license "agreement", so using the cuecat isn't really possible for those hackers, who, ironically, are probably in the top 5% of people who might actually want to buy something at Radio Shack!
This is where DC is hurting themselves.
Ouch!
You have found my grammatical Achilles heel.
I make that mistake all the time. I guess I was making paper airplanes or something in grade school when I should have been paying better attention.
Actually, what I said has it's own logic. If you write the press release first, you run the risk of spending your time on the politics of your project, getting bored, and never finishing the project. Everyone wonders, "Where's the beef?"
If you do the project first, then write the press release, you don't have that problem because, to use an inappropriate analogy, you have the beef in your back pocket.
Anyone have an arrow remover & and a band-aid?
Guess it's easier to write press releases then to write software.
Did you review every line of the linux source code for this router?
Of course not. That isn't my point.
My point is:
One is possible to verify.
One is impossible to verify.
It gets worse.
The law refers to it as a "royalty", not a tax. Unlike "digital audio recording device", and "digital audio recording medium", there is no special definition for "royalty" in 1001 of the law. One would assume that the word "royalty" has the ordinary meaning -- the same meaning that it has throughout the rest of Title 17 (copyright law) -- a payment to a copyright holder in exchange for the rights to reproduce a work. When a radio station pays the royalty on a song, they receive the right to broadcast that song. If I'm a record company, and I want to put out a compilation album, I agree to pay royalties to all the copyright owners of the songs on that album, and in return I receive in return the right to use those songs to make legal copies of my compilation album. Etc. etc. That's the entire point of a royalty.
However, according to the White House, unlike any other royalty in copyright law, one receives no rights whatsoever from paying this "royalty"! According to the Administration brief, all that consumers get, having paid a "royalty" directly to the recording industry, is immunization from lawsuits. The administration claims that home taping is still illegal -- even though you've paid real money to the RIAA -- it's just that the AHRA says that you can't be sued for it.
So it isn't actually a royalty then. What is it?
A tax? Taxes are supposed to be for the support of government. If this is a tax, then what is going on is conversion -- this law steals public funds from the treasury and gives it directly to private companies.
What sorts of common words describe payments that insulate illegal activity?
Protection money? Graft? The true nature of the AHRA comes to light.
Seems useless to me. Why break the security of a Cisco router by putting Linux on it?
Security? What does anyone really know about the security of Cisco routers? Are you sure that there are no back doors imbedded in the IOS? Can you prove it?
At least with Linux, you can.
Yes, innocent people have to pay for the actions of a minority of people who behave badly.
This mischaracterizes the "DAT tax"
In 1992, when the AHRA was passed, there was about as much copying of CDs onto DATs as there is copying of DVDs onto blank writable DVDs. None. The only people using DAT were:
o musicians who wanted to make high quality digital recordings without having to give away their copyrights to the recording industry to do so.
o Tape traders (The Grateful Dead sold special tickets that allowed fans to bring in taping equipment.) Tapers and tape traders saw DAT as the end of the "9th generation cassette that sounds like shit" phenomenon.
o A few audiophiles who were using it as a toy.
Blank DAT tapes cost more than CDs. DAT tapes are fragile, wear out quickly, and have all of the inconveniences associated with VHS. It's a tape. You have to rewind it. It can easily jam. There was no reason, and to this day there is no reason to copy a CD onto a DAT.
DAT's functional benefits arise from two features that have nothing to do with copying commercial recordings -- a two hour recording time with no tape flip, and rugged portableness.
There were no signs of consumer abuse of DAT in 1992, and none to this day. The DAT tax was the direct result of the RIAA holding the player manufacturers hostage -- there was a standing threat to sue the first player manufacturer who brought a consumer-oriented deck to market. This was the "problem" addressed by the AHRA, not any actual consumer use of the technology.
The wording of the AHRA reflects this. The "threat" being addressed by the AHRA was the threat of the RIAA suing player and media manufacturers, and consumers. Not consumer misbehavior.
The MPAA is not claiming that DeCSS is a trade secret violation. They are only claiming that DeCSS is illegal because it is an "unlawful circumvention device" that provides access to movies without the MPAA's permission
An unlicensed encoder does not provide access to any copyrighted works, and is not a circumvention device under the DMCA.
As for the trade secret issue.
I agree with your comments about stealing trade secrets, but no one is claiming that DeCSS was derived from a stolen copy of DVD-CCA documents. In fact, all of the evidence so far indicates that DeCSS was derived legally -- by reverse engineering a legally purchased copy of the XING player in a country where such reverse engineering is fully legal.
This is the proper, legal way to expose trade secrets.
First off, you're splitting hairs. The industry doesn't seem to give a damn about the differences between hardware and software. They consistantly refer to DeCSS as a device.
You've totally missed my point.
Movie Studio A releases DVDs using CSS, a trade-secret, unpatented and uncopyrighted scrambling algorithm.
Player Manufacturer B releases DVD players that can descramble CSS, after signing a contract to obtain those trade secrets.
Next, the trade secret is reverse-engineered, placing it in the public domain. There is NO IP protection for CSS. The MPAA letters do not claim that CSS is a trade secret, or that it is a patent or copyright violation. Their ONLY claim is that DeCSS is an "unlawful circumvention device"
My Company C releases copyrighted DVDs using an unlicensed CSS encoder.
Software Company D releases unlicensed DVD players that can descramble CSS. (livid)
Movie Studio A claims the right to sue Software Company D, based on the fact that D's players can descramble A's discs without the authority of copyright owner A.
Why does My Company C not have the right to do the same thing? My Company C never gave Player Manufacturer B permission to manufacture DVD players that can decode my DVDs.
If you sign those papers, then you are signing a oath that you believe yourself to be the inventor of the patented invention. If you don't believe that the invention is new, and don't want to participate in the theft of an idea from the public domain -- which is patent fraud -- then I would either tell the company lawyers, or have an attorney send a letter to the company lawyers, stating that you believe that you are not the original inventor of the idea, and that you believe that you would be committing purjury by signing the patent application.
If they try and fire you for refusing to participate in patent fraud, you'll have a strong case to sue for wrongful termination.
This isn't about the "freeness" of it ... it is an excellent illustration that "information is information", and that any one type of information can be disguised as another type of information.
How amazing. Worthy of Alice in Wonderland. Nothing means quite what it means. All the key words in the law mean the opposite of what they say.
... The administration claims:
...
...
Digging in
[T]he compromise underlying the Act involves a basic quid pro quo. In exchange for accepting the marketing of digital audio recording technology and the use of such technology for noncommercial home taping, the music industry receives financial compensation (through the Act's royalty system) and protection against serial copying. This quid pro quo was central to the agreement and the legislation that embodies it. See, e.g., Senate Report at 30 (summarizing the purpose and basic elements of the legislation).
The government's analysis of the quid pro quo is defective. There is a third party. The third party is the general public, who pay actual money directly to the recording industry; payments described as royalties The nature of the royalty collection system is hardly mysterious. It is a statistically based royalty payment system. Royalties are collected on the purchase of blank media, and paid in proportion to industry sales of works on fixed media. There is no special definition in Section 1001 for "royalty." The Government would like us to believe that unlike any other royalty payment in copyright law, and that unlike any definition of "royalty" that I can find in any dictionary, this "royalty payment" does not actually confer any right to use the material on which the royalty payments are made, but instead provides a technicality, immunizing consumers from prosecution for their still-illegal activity. This is preposterous. It turns the entire concept of a royalty on it's head! Incredibly, the government is claiming that the real purpose of the Audio Home Recording act is to protect illegal activity by getting the government involved in a "protection racket." Hardly an argument the government should be making about federal law. If this is the true meaning of Chapter 10, then it should be thrown out entirely, because the government has no constitutional authority to enter into such a scheme. I certainly hope that the courts do not buy into this interpretation.
Section 1008 does not designate any use of copyrighted works as non-infringing; it merely bars "action[s] * * * alleging infringement" based on such uses. Assuming arguendo that Napster's users are otherwise engaged in acts of copyright infringement, nothing in Section 1008 purports to render those actions non-infringing, and hence the claims against Napster for contributory and vicarious infringement would remain unaffected even if Section 1008 did apply to Napster's users.
The action against Napster is based on the activities of Napster's users. It has to be. If Napster's users had been only copying non-RIAA music, this lawsuit would not exist. The government claims, in effect, that Section 1008 means:
"No action may be brought under this title against any consumer based on
when it actually says,
No action may be brought under this title based on
and on and on it goes. We learn from the government that the word "non-commercial" really means "home" because they were able to find references to "home taping" in the congressional record. The law does not say "home taping". The law says "non-commercial use". Once again, we learn that the law means something different than it says.
The brief argues that because computers and hard drives have no royalties, that the music industry doesn't benefit from Napster. This is nonsense. People are buying CDRs by the millions. I go to my computer store. There's an entire wall of them. A good percentage of that wall is devoted to audio CDRs. People are buying them like they're going out of style. Why are audio CDRs suddenly so popular? Either there has been a gigantic upswing, for no explained reason, in home copying of CDs, or more likely, the boom in CDR sales, including audio CDRs, when priced competitively, is largely a result of Napster users who want to clear their hard drive, don't want to lose all their MP3s when the hard drive on their Windows machine inevitably crashes or needs to be reformatted, or want to listen to MP3s on their CD players, Napster is a 21st century adjunct to the 20th century practice of home taping -- with the same result as traditional home taping, the consumer driven production of, under the AHRA, royalty-paid music CDRs.
Finally, the government makes a tortured argument that after all that, the AHRA is inapplicable because what is really going on is distribution, and that:
[T]he Copyright Act also grants the copyright holder a separate and distinct right of public distribution - the "exclusive right * * * to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." Id. 106(3).
No need to speculate on what "copies" and "phonorecords" are. The definitions are given in Title 17, Section 101.
''Copies'' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.
''Phonorecords'' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''phonorecords'' includes the material object in which the sounds are first fixed.
The problem here is that a Napster downloader is not distributing a material object in which a work [or sound] is fixed; she is creating a copy. That's the whole point of the internet -- that you can share information without distributing material objects. If the two are to be considered identical, then the AHRA provides no protection, because even home taping is now "distribution", and the AHRA was clearly meant to protect, if nothing else, home taping. So which is it?
The government claims that copying is synonymous with distribution, that recordings aren't recordings, that royalties aren't royalties. I suppose this all makes sense to the administration lawyers who composed it, but to me it seems like a dirty attempt to recast the AHRA into a kickback/protection racket, which, sadly, is exactly what those of us who were using DAT in 1992 called it then. If the administration came out and admitted this, at least this administration would have the benefit of appearing honest, instead of acting as a shill of the recording industry, asking that laws designed to create and protect consumer rights be recast for the sole convenience of the corrupt entertainment industry, and that the only ethical interpretation of the AHRA be cast out.
This brief reflects strongly on the ethics of the Clinton administration, a fact that won't be lost on me in November.
So this means that a grain elevator explosion has the potential of taking out parts of the internet.
An entirely new mode of network failure has been invented!
Yeah--one big, gaping hole: the player manufacturers are not producing hardware "that can remove the copy protection on your work. " They are producing hardware that can view your work. There's a big difference.
Well, right now the DVD-CCA is in court attempting to outlaw the livid DVD player, which is software that can only view DVDs, not copy them, so apparently the recording industry disagrees with your viewpoint.
I'm strongly tempted to produce my own copyrighted work in DVD format and then sue the DVDCCA for circumventing my Technological Protection Measure.
This is an extremely interesting theoretical attack on the DMCA.
1) Create a CSS-encrypted DVD. Now that the algorithm is known, this should be trivial.
2) Get a lawyer and prepare to spend a lot of money.
3) Send cease and desist orders to one of the established player manufacturers, citing the DMCA. They are producing hardware that can remove the copy protection on your work, without your permission.
Now, the court can do one of three things:
1) Order the DVD player manufacturer to stop manufacturing DVD players (which would cause an industry stampede to Congress to get the DMCA modified or repealed)
2) Toss your claim, thus creating a precedent that the inventor of a TPM is entitled to a perpetual patent-like monopoly over the use of that TPM, and hopefully raising the eyebrows of the appeals courts and the Supreme Court.
3) Toss the DMCA as unconstitutional.
Anything I missed?
When the DMCA is first used successfully against a large publishing company, such as an RIAA or MPAA member, it will be found unconstitutional or suddenly repealed.
Right now it's being used to crush small, upcoming companies, but it's an incredibly powerful weapon, and if a small company can figure out a way to get their hands on it and successfully use it against a big company, they will be in just as powerful a position as the lawyers who just convinced a judge to allow lawsuits against the LAPD using the RICO statutes.
I really think that the majority of Slashdotters really do care. But we really are nerds dealing in the realm of technology, and not IP law. And honestly, we shouldn't have to get our hands dirty with this nonsense. It's because we see what is happening to the folks around us that we have to pay attention.
... how about if a student drops out of school, their books are electronically erased so they can't sell them to a new student! Great idea! New York University's Dental School has contracted with Vital Source Technologies to create exactly that! Only possible if Title 17 can be replaced with an electronic "plugin."
... The CSS Title 17 plugin doesn't provide for that, so it is illegal!
... or by the hour. No problem!
...
I used to think that way too, but I've changed my mind.
Look, we all understand the concept of a plugin in software. You want to watch a flash file, you have to download the plugin that allows you to do so. Then, when you open a flash file, the flash program goes and does exactly what the author of the flash program wants it to do.
The DMCA has taken the concept of a plugin into the legal arena. The DMCA is a law that allows a publisher to replace Title 17, the entire copyright code, with a computer language "plugin."
Don't like that Title 17 Section 102 says that copyright is only available for original works of authorship? No problem! So long as your "plugin" also controls access to copyrighted works, you can take works from the public domain, encode them, and your "plugin" will eliminate that pesky part of copyright law. Glassbook is right on top of that. You can download such public domain classics as The Art Of War, The Federalist Papers, and The Politics of Aristotle -- and these public domain classics are just as protected by Glassbook's "Title 17 plugin" as if they were written yesterday.
Don't like that Section 107 allows people to make partial or complete copies of your work for fair use purposes? No problem! Your plugin can fix that!
Don't like that Section 109 allows people to sell their used books without your authority? No problem! The Glassbook plugin lets you put a stop to that. Or perhaps you would just like to charge people whenever they resell their digital books. Hey, there's no limit to what you can do, if you can replace Title 17 with your own programmed plugin!
Here's an idea
Don't like that Section 109 allows the owner of a copy to display that work without permission of the copyright owner? No problem! The "CSS" plugin replacement for Title 17 allows DVD publishers to deny owners of DVDs the right to view their DVDs, unless they use "industry approved" equipment that pre-degrades the signal. And forget about extracting sections of digital video for fair use purposes
Or perhaps you'd like to replace Section 109 with a different flavor. Want people to pay every time they press the play button to watch their own DVD? How about a book that charges you by the page to read it
Anything becomes possible when you allow copyright owners to provide a "plugin" replacement for the entire copyright code, that does what they want it to do instead of what the copyright code says. Never mind that the copyright code, developed over 225 years, contains a system of checks and balances that protect both the rights of copyright owners and the rights of owners of lawful copies. That can all be cast away, and the DMCA is the law that gives copyright owners that power. The power to disregard the copyright code and impose whatever "copyright law" they can dream up. And if you circumvent someone's invented "copyright law plugin", you're risking five years in jail and a $500,000 fine.
That's what's wrong with the DMCA. It absolutely eliminates all the safeguards in copyright law that protect your right to learn; to self-educate; to have your own library; to trade in used books; to archive literary materials. Under the DMCA, you have no rights
... unless those rights happen to be part of the "plugin" you are using.
So what to do about it?
You can directly attack the access control schemes, but that doesn't fix the problem. Broken access control schemes will quickly be replaced with better ones. This is a recipe for a never-ending, destructive arms race.
And honestly, we shouldn't have to get our hands dirty with this nonsense.
Think of things this way.
The law is the machine language of justice.
If there's anything that hackers understand, it's that when you find a broken system, and you know how to fix it, you do so. In order to fix the broken legal system, computer programmers are going to have to put down their C compilers, and get involved in learning the machine language that controls the broken legal system, and work to replace the defective subroutines with ones that perform their correct function.
Don't kid yourself into thinking that this is someone else's problem. Before the DMCA, we had laws that protected our right to learn. Not anymore. Now copyright law means whatever the publisher of a work says it means. A plugin exit has been placed in the wrong spot. The only way to remove this dangerous program misfeature is to work to have the DMCA either repealed, or struck down as unconstitutional.
Does noncommercial use entail distribution on a scale possible by Napster? Also, Napster is a business - how does that commercial "service" figure into noncommercial use by the consumer.
... possibly distributing marijuana to cancer patients in California, but that situation is in a complete state of flux, under current litigation, so that's not really a good example.
There's plenty of businesses that exist for the sole purpose of helping you to exercise your rights.
Xerox manufactures photocopy machines. Millions of people use them daily to copy pages out of copyrighted works for legitimate fair-use purposes, and probably lots of people use them to make infringing copies of things. Sony manufactures VCRs. Millions of people use them daily to make millions of copies of the Oprah show, so they can watch it later (legitimate time-shifting fair use), and probably lots of people use them to, for instance, rent a movie and make a copy for themselves (infringing). Napster runs an indexing service. Millions of people use Napster daily to make copies of songs.
The main difference between Napster and copy machines and VCRs is that only with Napster is it actually possible to see the sum total of what is going on. If, somehow, there were a billboard in Times square that did nothing but show a running list of all the magazine articles that were being photocopied by all the copy machines in the world, or a running list of all the video programs being videotaped by all VCR users in the world, it would be jaw-dropping. The display would be moving so fast it would be a blur. It would make Napster look like nothing.
what is the legality of Napster providing a commercial service to facilitate this?
What is the legality of a service that facilitates legal activity? Honestly, I can't think of an example where an activity is legal, but facilitating that activity is illegal
I suppose that's the key wording anyways - "under this title". Assuming the RIAA doesn't allege infringement under title 17, this won't hold any bearing.
But all copyright law is under Title 17. If the RIAA isn't suing under copyright law, what law can they possibly sue under?
I repeat: under current copyright law, there is no such thing as a 'right to listen.
I know what you mean, but you're saying something else.
Title 17, Section 109 (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
This doesn't address the my.mp3 issue, but if you own a physical copy of a book, CD, or DVD, you have the right to read that book, play that CD, or show that DVD without the permission of the copyright owner. This is fundamental to the entire purpose of copyright -- to promote learning.
While there is indeed a big demand for better distribution of music via the internet, this is entirely up to the record companies to decide. You can't legally force the way they want to distribute their music.
Sure you can; it's called compulsory licensing, and it's why radio stations pay a fixed fee when they broadcast a song instead of individually negotiating with each record label.
However, that would be something Congress would have to add to the copyright code. Perhaps they should.
You are making the RIAA argument -- that Section 1008 only creates immunity if the copying is done using SCMS-equipped recorders, and royalty-paid media.
According to the appeals court, the distinction of whether a device (like a computer) is a "digital audio recording device" is only meaningful for the purposes of determining whether it the device/media are subject to the SCMS and royalty requirements.", not for determining Section 1008 immunity.
Why?
Section 1008 does not only grant immunity to consumers who use equipment defined in section 1001. It can't. Think about it. The law mandates SCMS circuitry and royalty payments for certain digital recording equipment only. It says nothing about any copy protection or royalty payments on analog equipment and media. Yet, the law creates immunity for use of analog as well as digital equipment and media. How can this possibly square with the RIAA interpretation? What are analog equipment and media doing in Section 1008, if section 1008 is only supposed to apply to SCMS-equipped/royalty paid equipment and media? Obviously, Section 1008 does not only create immunity when used with restricted and royalty-paid equipment, because it creates immunity for analog equipment as well! The appeals court actually thought about the law, reviewed the Diamond Multimedia case and determined that Section 1008 protects all non-commercial copying by users, not just using certain equipment.
This makes sense, because the purpose of the law is to stimulate a legal market for digital recordings, while avoiding the "grey areas" that would immediately arise under the RIAA interpretation.
As an example, you take an old record of yours, blow off the dust, and play it back on your turntable. You connect a Digital Audio Tape recorder to your receiver, and make a DAT tape of your record, on a SCMS-compliant machine, on a royalty-paid tape, for your own enjoyment.
Do we both agree that you're protected under Section 1008?
Ok. Now, you notice that the recording has pops and clicks. You want to eliminate them, so you take the DAT recorder over to your computer, connect it to your SPD/IF equipped soundcard, and read the recording onto your hard drive. You use Sound Forge, or a similar tool to remove the clicks, and add track marks, then you burn the final recording onto an audio (royalty-paid) CDR, and re-use the DAT tape.
Is your final CDR legal or illegal? Did it become illegal when you copied it onto your hard drive? Did it become legal again when you moved it onto a CDR? What is the correct public policy to best deal with this issue?
The only interpretation of section 1008 that avoids this problem of "tainted" intermediate recordings is the one provided by the appeals court -- that Section 1008 immunizes all non-commercial copying of musical works by consumers.