While it's amazing how many of these "It's the Law" posts are flat out wrong, it shouldn't suprise anyone. Many of them are posted by people paid to put out disinformation. In fact, the entire article is an example of disinformation.
That's COMPLETELY wrong. The only purpose of Copyright is for the encouragement of the creation of creative works. This is EXACTLY the one and only reason expressed in the Constitution for the creation of the seperate Power of Congress to optionally give a Copyright if it so choose to.
If you create something and then intentionally remove it from the market to bring out something else, which will be forced on users, this is the very definition of Copyright Abuse!! It's immoral, and it's NOT legally defendable.
It's exactly want the Founding Fathers tried to prevent in regards to making sure Copyright was NOT an unlimited property right. And this is the most important point...obtaining a Copyright on a work of art does not create property!! See
Fair Use for a further education.
That would be correct - NO
Just because they have a copyright, once it is put into distribution, it is NOT their right to control the material any longer. Intentionally removing it from the market and then preventing the distribution is an obstruction of constitutionally guaranteed fair use.
The IS an abandoment concept to copyright.
Oh Please...That was the worse discussion on Copyright I've ever seen. What was the purpose of the Chart on Piracy Loses - which in of itself is Bogus.
Copyright does not create property - it's a limited license.
Re:I read every line of that trial, my prediction.
on
NYT On DeCSS Case
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I agree with you whole heartedly and posted nearly the same message last time.
It is not enough to get a victory under freedom of the press (or even code as speech). The ruling that Free Software, and for that matter the American Public, needs is for the Judge to rule that the provisions of the DMCA can not overrule the right of reverse engineering or fair use because these are constitutional guarantees...every bit as important as a Free Press. He needs to set the DMCA right, and to interpret this vague law under it's correct interpetation. Kaplan is essentially reading this law wrong! Fair USe is protect4ed under the DMCA and if it wasn't, it would be unconstitutional in it's whole.
The record companies actually PAY the Radio stations to play their records. In addition, did you read the section where she says that under current law, Musicians never have copyright of the material they create!! So the whole argument that the Copyright law protects the Artists is, as we actually knew, just untrue when the facts of current business law is examined.
I also think Metallica is being given too much grief. It's anti-artist, for one thing. An artist speaks up and the artist gets squashed: Sharecropping. Don't get above your station, kid. It's not piracy when kids swap music over the Internet using Napster or Gnutella or Freenet or iMesh or beaming their CDs into a My.MP3.com or MyPlay.com music locker. It's piracy when those guys that run those companies make side deals with the cartel lawyers and label heads so that they can be "the labels' friend," and not the artists'.
Recording artists have essentially been giving their music away for free under the old system, so new technology that exposes our music to a larger audience can only be a good thing. Why aren't these companies working with us to create some peace? There were a billion music downloads last year, but music sales are up. Where's the evidence that downloads hurt business? Downloads are creating more demand.
Why aren't record companies embracing this great opportunity? Why aren't they trying to talk to the kids passing compilations around to learn what they like? Why is the RIAA suing the companies that are stimulating this new demand? What's the point of going after people swapping cruddy-sounding MP3s? Cash! Cash they have no intention of passing onto us, the writers of their profits.
You also bring up a good point. One of the MAJOR troubles of the DMCA is that everyone who was involved in voting for it got a piece of legal code added. There were all kinds of expectations of how it would work, and various Congressional leaders who pushed for the Bill and altered it in the concilation Commitee which dovetailed the Houses version with the Senates version, and the individual comitees in the house and senate, all had different ideas about what certain clauses would do to protect and enhance Copyright and Fair Use.
The DMCA is one of the poorest written peices of legistlation ever to come out of Western Civilization, in addition to it being largely unconstitutional.
It would not have been passed if key members of Congress who voted for it had the ability to see the assualt on Fair Use that it created.
No - that's not like broadcasting on a Radio. Radio Stations are businesses which exploit the work for profit. Sharing is allowed for free with no comercial benifit. Ruben
You make some great points, but a few things to be looked at.
First, I think that the Constitutional provissions of Freedom of the Press and Freedom of speech can not be superceded by any act of Congress, including the DMCA. This is why I beleive Kaplan is looking at the Freedom of Speech issue and wondering if the Horse is out of the Barn.
If Corly (Pronounced Goldstien:) ) initially was the source of the DeCSS, Kaplan might be inclined to Judge that the Press is not acting like a reporting agency, but simply trafficing in the DeCSS Software. But since it was alreay released...They're just reporting the News.
Ultimately, while the DMCA tries to define Reverse Engineering, and Fair Use, it's not really the last word on these issues since they are Constitutional Doctrin. But even still, the DMCA, which can be seen in it entirety in the link provided, gives us the following contradictory passages!!!
------------------------------ (f ) REVERSE ENGINEERING.-(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particu- lar portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been
H. R. 2281-8
readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. ``(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to cir- cumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identi- fication and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer pro- gram with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
``(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independ- ently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.
``(4) For purposes of this subsection, the term `interoperability' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.
_______________________________
Congress added this because it would not withstand a Court Case otherwise. Likely the issue of Fair Use. Without Fair Use provissions, the DMCA would be struck down as Consonstitutional in the Cradle. Part of what these Law Suites are about is the MPAA trying to redefine Fair Use in the eye of the public. Where Fair use was the right to make archival Copies, they are say - no - it isn't.
But the DMCA is clear even in it's text that is can not over rule FAIR USE......
______________________________________________ (c) OTHER RIGHTS, ETC., NOT AFFECTED.-(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. ______________________________________________
The mechanism of Copyright Office review is some quack idea to try to save this insane act from Court Review death. If the DMCA is an impedence to Fair Use, it should become a dead letter. Therefor the REAL battle is over the definition of Fair Use. That is the issue this case, if decided upon Freedom of Speech/the Press, threatens to circumvent, at least for another day.
One of the problems that those of us watching this case have had in our analysis and understanding is that we are so passionate about the issue of being able to create free software to play DVD's, and the threat of the DMCA to the continued development of free software, that we are overlooking the specifics of this particular case.
In the case against Corey, we have a situation where the prosecution is saying that Corey is trafficking in an illegal software program that violates the DMCA. The defense, on the other hand, has been arguing that Corey is a JOURNALIST!!! and that the links to the DeCSS program is a protection of the 1st Amendment, protected Free Speech and an issue of Freedom of the Press.
In this light, actually, the issue of the DMCA is actually a side show altogether. The real issue is can the court suppress the Press from reporting the location and contents of DeCSS, regardless of any violation of the DMCA.
In consideration of THIS question, Kaplan is asking if the Horse is out of the Barn, Is DeCSS publicly available knowledge which is newsworthy and therefor afforded protection. This is indeed a fair point of view in regards to this specific case. Does it really matter if 2600.com publishes the link, as opposed to the NY Times?
Probably not.
However, such a ruling does not answer the fundamental question of the legality of the DMCA or it's use as a legal means to repress reverse engineering or forms of freedom of speech more specific the "Fair Use" doctrine.
On the other hand, if Kaplan rules that DeCSS is a form of speech protected under the 1st amendment, regardless of it being an instruction kit to descramble the CSS algorthim or not, then the issue of the Horse being out of the Barn is irrelevant. Free Speech is assumed to be permitted, horse, barn or entire farm notwithstanding!
In any event, a ruling in favor of Corey under this logic may not be what's in the best interest of Free Software, or for that matter, the public's welfare. Ideally, Kaplan would examine the facts and rule that the property rights of the writers of the DeCSS permits them to reverse engineer the CSS encryption scheme, and their rights to freedom of speech permits them to distribute the code as they see fit. He would rule this is permissible under the DMCA and in line with previous Constitutional Ruling of the Supreme Court, or he would rule that the DMCA is unconstitutional because it's enforcement would violate the civil rights guaranteed every citizen to their property and their freedom of speech. Then he would rule that because the software was legally developed for a legal purpose, that the MPAA's arguments for a permanent injunction has no basis in the law, DMCA notwithstanding.
Baring a ruling similar to this, the MPAA might loose this battle, and not appeal, thereby sidestepping the major issues which argue that the DMCA is either unenforcible as the MPAA wishes it to be, or unconstitutional. And in the long run, that would be very bad for the public and Free Software.
Many people are tired of many things. I'm mostly tired of Law Students and Corrupt Lawyers which represent the MPAA of making false statements under oath like Barry Sorkin did at the Copyright Office Hearing in Washington DC. I'm also tired of the MPAA as an association running against the Law, ending up in anti-trust suits and loosing and misrepresenting the purchase of a copy of a media as buying a Movie Ticket.
I'm also tired of Judges who refuse to do their jobs, like Judge Kaplan, and profess to have knowledge that they don't. Kaplan's behavior on the Bench seems to merit his impeachment.
I'm also tired of Judges and Lawyers who can't count past the Number 2 and trolls which represent the MPAA.
---And I am tired of people who are not lawyers not understanding laws, especially one as simple and direct as this one. I've posted this before but obviously it didn't penetrate into some people's skulls so I'll tear it down # by #.--
--- 1) Your first sentence is correct - your second sentence is what YOU think it should be. But it's not and go whine to congress. Currently it's illegal to circumvent CSS no matter what you believe or want to think it should be. DeCSS circumvents CSS - that's exactly what the authors of the program say it does, that's what the defense stipulated to in court that it does, that is what every single expert on the stand has said it does. Please don't continue to pretend to be ignorant to it's true function. --
Actually, nearly every Lawyer I have spoken too disagrees with your assessment.
"If the judge finds for the plaintiff, and the decision isn't knocked down on appeal," says Yochai Benkler, a professor of information law at New York University, "it will create an environment that's closed like nothing we've ever seen before."
Since I work for NYU, I called Benkler. I asked him about Kaplan's decision that even if the DeCSS was created for reverse engineering purposes, even then the DMCA would not permit the posting of a LINK to the DeCSS code. It seems completely incompatible with the plain meaning of the reverse engineering clause in section 1201 of the DMCA and the Fair Use clause. It is his opinion that Judge Kaplan is making a major stretch in claiming that while the DMCA is so poorly written that it directly stands in conflict of itself, that reverse engineering is OK for an individual user, but that dissemination of the Code would be a violation. It is also his opinion that the DMCA will not stand a review by the Supreme Court if Judge Kaplan's ruling is a correct interpretation of the act.
--- 2) Reverse engineering has some very narrow criteria. And perhaps DeCSS meet these. Do you suggest that every single person using DeCSS uses it for the educational value reverse engineering provides. AND you conveniently forget that even reverse engineering still does not allow you to simple ignore existing copyright protections.---
Reverse engineering has nothing to do with education. Educational copying of copyrighted material is a Fair Use as determined by the Supreme Court and legislated into the copyright code under section 107 of the Copyright Law. Reverse Engineering, by definition, is a protected right which anyone can partake of without permission of the designer of the original device. This is obvious and is considered Prima Faca evidence. Compact did not have IBM's permission to reverse engineer the PC.
--The copyright holder still maintains control over access to his material and no matter HOW you got to the material (unencrypted movie file) the copyright owner STILL owns it and can dictate (like it or not) how and by whom it's accessed. This is not a valid exception and case law supports this. --
Legally speaking - this whole statement is just wrong. First of all, Copyright holders NEVER have the right to maintain control over access to works no matter HOW they distribute the material. The only thing a Copyright holder owns is a license to a limited commercial monopoly of a work. They can not prevent anyone who obtains a copy to limit when they view it, how they view, and with whom they view it with, who they sell their copy to, or how they view it. I think you just made this up.
-- 3) Too bad copying entire movies is not even remotely "fair use" --
Actually - making a copy of a work for personal use, educational purposes, archival purposes, and even to give away for FREE is exactly what Fair Use doctrine is as developed as the Supreme Courts response to abuses of Copyright which inhibited Constitutionally guaranteed civil rights to Property and Freedom of Speech. It was later legislated directly into the Copyright Statute which can be read at New Yorkers for Fair Use.
--too bad that no one is using DeCSS to critique a small sample of a movie. Too bad that there is no need to use DeCSS to perform "fair use" and that it could be performed by other means and so fair use is not an excuse for circumvention. AND, even if fair use was the honest intention - that still does not override the prohibition on circumvention. You must learn how to read law.--
What's too bad is that you fail to understand what your reading in the Law. A purchaser of a Disk does not enter into any contract with the Copyright Owner, or licensing agreement. They can do anything with the disk that is guaranteed under the Constitution as part of their civil rights to ownership of property. This right of property is a guarantee of the Constitution. Copyright does not extinguish an individuals right to his property. He can therefor do what ever he wishes to the disk aside from commercially exploiting it, which is reserved for the Copyright Owner. The Copyright Owner of the material has a limited license from the Government. The Disk owner is the property owner and is not limited by any licenses.
--4) While DeCSS, the source code of that program, is protected as free speech. There is NOTHING in free speech which gives license to violate copyrights.--
This is not the question in front of the court. The question in front of the court is if there is ANYTHING in Copyright which can limit Free Speech. If the Code is Free Speech, it is protected under the Constitution. Copyright can not prevent Free Speech, and that is part of the definition of The Fair Use Doctrine.
-- Again, precidence and the preponderence of case law demonstrates this. Do some research instead of regurgitating EFF BS--
Again - I think you made this up..
--- 5) You sound like an MS hater. This case has nothing to do with antitrust or misuse of copyright and you'll find that neither of those lame defenses was even attempted, even by this lame defense team. ---
Right.... and you are what??? A Troll?
--Copyright owners are free to decide how their IP is distributed and by whom and how it's viewed. Get a grip - stop pulling terms that don't apply outta yer butt! ---
Actually - they are NOT, which is why the DMCA is likely to be struck down by the Supreme Court.
The problem with passing a constitutional amedment is that it's ALREADY passed. The "Fair Use Doctrine" is a combination of the Free Speech rights and Property Rights. "Fair Use" wasn't created by section 107 of the copyright code. Section 107 was put into the Copyright Code to ensure the constitutionality of the Copyright Law.
Put it this way....even with non copyrighted material, you have a the right to fair use of your property and freedom of speech. The government can limit your property to a certain degree, but it needs constitutionally sound reasons to do so. Fair Use is your civil rights. Anytime copyright conflicts with Fair Use, Copyright looses - and there is a slew of Court Cases upholding this.
Copyright is by definition limited. Property rights is by definition unlimited. The government must justify limiting your property rights, or your freedom of speech.
As such, the DMCA was passed by Congress, not under the authority of the Copyright clasue of the constitution, but under the COMMERCE claus. In the end, I'm fairly certain that it will be struck down in the Supreme Court because Congress doesn't have the power in the Constitution to use either the Copyright Clause OR the Commerce Claus to limit the Constitutional Guarantees of Fair Use.
The purpose of creating a seperate act which specifically reinenforces "Fair Use", is two fold:
A - To prevent the chance (however slim) that the DMCA is upheld similarly to the Tawdy Court's ruling in Dred Scott which declared "Negro's" non-human and property...
B- To end the COST of defending Fair Use by running every damn case to the Supreme Court.
I don't trust the Court ENOUGH, nor do I want to keep wasting money and time defending myself against morally unethical companies like Time-Warner (the company which invented the Sub-liminal Ad) who have inexhaustable pockets of income.
We should also include a provision where the Copyright Office can remove the Copyright of any company which uses it's Copyright in an abusive manner, to obstruct the flow of the information needed for citizens to participate as equals in society and government, which creates too high of a ceiling for fair education, which endangers free speech, or uses copyrights to prevent economic advancement or fair compitition.
One of the things we can do to fight off this law suit it too slashdot Congress to pass a bill assuring Fair Use. The MPAA is on a media blitz and confussing people about the basics of information, culture and copyright. What we need is to get Congress to pass a NEW LAW which guarantees Fair Use over the provisions of any other Copyright Law. We can wait for the Supreme Court to uphold Fair Use, but we can also demand from Congross these protections as well, and then undermine the Court Case entirely.
Orin Hatch is already upset with the degree the DMCA underminded Fair Use. We can HELP him fix his mistake. www.NYFAIRUSE.org is one organization which is trying to do just this.
It seems that quite a bit of coverage of the DVD trail is taking hold in the media. I even saw an article on this in the NY Post, although it failed to mention the protest.
We got fairly lucky on the Protest because I ran into Jerrold Nadler, who is the Congressman for the Upper West Side and Boro Park in Brooklyn. He may be the Representative of many of you in Manhattan. I used to live in his district, but I no longer do.
We need to now strike a legislative dialog with Nadler. To me, he's one of the best representatives in the state. He's usually informed, bright and and unafraid to take a position.
We need to start a legislative movement to protect Fair Use. Clearly, the provisions in the DMCA of 1998 designed to protect "Fair Use" and property rights are being run roughshod by the Kaplan Court. Most importantly, this quote by the MPAA is offensive. It is reported by CNET at
"DeCSS is simply the 'lock pick' in the high-tech crime of breaking into another person's digital property," the MPAA said in a statement posted on its Web site. "The First Amendment (the legal right to free speech) provides no protection for such conduct."
We need Congress to pass a law and for Nadler office to put forward a bill which reinforce "Fair Use" in statutory law, reinforcing it's Constitutional Status as the rights of the public.
First, we need a law which explicitly makes clear that a normal retail transaction for a physical copy of any media gives possession as property of that disk to the purchaser of the disk, just like it does with a pair of shoes. Therefor, the analogy that someone picks a lock of something that they actually own can be ended both legally and philosophically. One is allowed to pick the lock of something they OWN. Since a DVD is purchased without a negotiated contract, in a simple cash transaction, the ownership of the lock of the DVD is in the hands of the disk owner.
Secondly, we need a law which explicitly gives the owners of media which contain copyrighted material, explicit "Fair Use" protection and "Reverse Engineering" protection which explicitly takes priority over any DMCA protections, or any other protections. Despite the attempt of Congress to include "Fair Use" protection in the DMCA, without which the law would not have been passed by Congress, the law was written against itself in section 1201 and Judge Kaplan is ignoring these protections in the Courtroom. As such, these "Fair Use" protections must be reinforced and made clear. It must be clear that prior authorization of the Copyright Holder is unneeded by those attempting reverse engineering or Fair Use.
Thirdly, we should empower the Copyright Office to remove Copyright protection from any individual who abuses Copyright to the detriment of Fair Use through frivolous lawsuits. COpyright should be removed from any Company which has abused it's limited license to monopoly control of Copyrighted Material by preventing the educational process or economic development through reverse engineering. Teeth need to be put into the Law to prevent abuse of power.
Lastly, we need a change in Copyright which allows for the ending of Copyright of Software and Content which is no longer available from the Copyright Holder at a fair market price. This will force Software Companies to continue to make available important business software and end the unfair forced upgrade of working products and games, or to hand over control of them to people who see a reason to do so.
It seems that quite a bit of coverage of the DVD trail is taking hold in the media. I even saw an article on this in the NY Post, although it failed to mention the protest.
We got fairly lucky on the Protest because I ran into Jerrold Nadler, who is the Congressman for the Upper West Side and Boro Park in Brooklyn. He may be the Representative of many of you in Manhattan. I used to live in his district, but I no longer do.
We need to now strike a legislative dialog with Nadler. To me, he's one of the best representatives in the state. He's usually informed, bright and and unafraid to take a position.
We need to start a legislative movement to protect Fair Use. Clearly, the provisions in the DMCA of 1998 designed to protect "Fair Use" and property rights are being run roughshod by the Kaplan Court. Most importantly, this quote by the MPAA is offensive. It is reported by CNET at
"DeCSS is simply the 'lock pick' in the high-tech crime of breaking into another person's digital property," the MPAA said in a statement posted on its Web site. "The First Amendment (the legal right to free speech) provides no protection for such conduct."
We need Congress to pass a law and for Nadler office to put forward a bill which reinforce "Fair Use" in statutory law, reinforcing it's Constitutional Status as the rights of the public.
First, we need a law which explicitly makes clear that a normal retail transaction for a physical copy of any media gives possession as property of that disk to the purchaser of the disk, just like it does with a pair of shoes. Therefor, the analogy that someone picks a lock of something that they actually own can be ended both legally and philosophically. One is allowed to pick the lock of something they OWN. Since a DVD is purchased without a negotiated contract, in a simple cash transaction, the ownership of the lock of the DVD is in the hands of the disk owner.
Secondly, we need a law which explicitly gives the owners of media which contain copyrighted material, explicit "Fair Use" protection and "Reverse Engineering" protection which explicitly takes priority over any DMCA protections, or any other protections. Despite the attempt of Congress to include "Fair Use" protection in the DMCA, without which the law would not have been passed by Congress, the law was written against itself in section 1201 and Judge Kaplan is ignoring these protections in the Courtroom. As such, these "Fair Use" protections must be reinforced and made clear. It must be clear that prior authorization of the Copyright Holder is unneeded by those attempting reverse engineering or Fair Use.
Thirdly, we should empower the Copyright Office to remove Copyright protection from any individual who abuses Copyright to the detriment of Fair Use through frivolous lawsuits. COpyright should be removed from any Company which has abused it's limited license to monopoly control of Copyrighted Material by preventing the educational process or economic development through reverse engineering. Teeth need to be put into the Law to prevent abuse of power.
Lastly, we need a change in Copyright which allows for the ending of Copyright of Software and Content which is no longer available from the Copyright Holder at a fair market price. This will force Software Companies to continue to make available important business software and end the unfair forced upgrade of working products and games, or to hand over control of them to people who see a reason to do so.
More interesting from the Times this week was the Full Page IBM add in Thursdays Business Section which pronounced Linux the wave of the Future:
"How long does it take for what was once a grassroots movement to become a mainstream force?
How long till the world's fastest growing operating system becomes the worlds most popular operating system?
How long can the advocates of closed and proprietary systems hold the forces of open standards at bay?
How long till your grandmother is ordering her groceries over the Web on a system based on Linux?
Maybe she already has?"
IBM has tied a free societies social agenda to their profit margin!! Not it's a responsibility as Open Sourced users to take the issues of Open Sourced code, and the free exchange of information tot he street. WE MUST NOW START TO DEFEAT THE DMCA AND PROTECT FAIR USE!!!
Also - the article about Artist for Napstar is very important!!
You said that must of us can agree with most of what Bronfman said. I can't understand where your coming from.
The premise of Bronfman's argument is:
For all of us, "Property rights are well understood and universally accepted. You own your home. Ypu own a car. They're yours - they belong to you. They are your property. Well, your ideas belong to you too. And "intellectual property" is property - period.
Well - Bronfman evidentely doesn't consider the Founding Fathers as part of this universe, because clearly, as Rich Stallman has documented, and as the law stands, and as common sense would tell you, your thoughts are NOT your property. In this has been the basic thrust of misinformation which the powers in the information industry is trying to impose on the American public. The the fact is that legally, morally and historically, your thoughts are owned, lock stock and two smoking barrels, by the public and civilization for properity.
Legally, our founding fathers thought about giving authers of works ownership of their works. But Hamilton, Madison etc., rightfully rejected this because it is a bad idea which would threaten civilization. Instead, our founding fathers gave Congress the power to limit the natural right of proptery and freedon of speach of owners of copies, and to restrict those rights through the vehicle of a limited copyright for the public good.
Part of the Human condition is that we live in this shared abstraction called a society and a civilization. It is essential for the health of civilization and society that inforamation can be freely distributed. The Human mind itself requires civilization and society for context for the creation of new thoughts and ideas. If we are honest, we would see that humans don't ever create ANYTHING without borrowing from others thoughts as they were transposed to them.
The Declaration of Independence was based on the work of John Locke. The music of Metalica is based on the work of Jimi Hendrix, etc etc.
So all of our thoughts and ideas spawn from previous ideas and thoughts. And therefor, the fundemental theory that Human ideas can be turned into personal property is legally, morally, and intellectually incorrect.
After Bronfman's foundation premise is dismissed as being legally, intellectually, and morally wrong, everything that extrapulates from this falsehood is FURTHER FALSE.
What is bothering me, Hemos, is that you give lip service to this disinfomation campain by conceeding the first point in your opening remarks. If you think any part of the Bronfman speach is correct and justified, then your as big of a threat our civilization as Bronfman is.
Lar keeps talking about his music and says he wants the right to it's use, and considers that to be the major personal issue for him. The trouble is that he's mistaken in the first place.
Creating a work of music or any other itellectual work does not create ownership of that work. We all live in the world together, and the foundation of human society is the sharing of our thoughts and creations. What Lars owns is a COPYRIGHT license to the music he created for a limited amount of time, and with limited prilvedge to the material. He never did and never will have control of how his music is used. Fundementaly, the ownership of a copy of his music is the owner of the medium of the copy. The owner of the medium is restricted in his use of the medium only to the degree that Lars copyright license restains the owners rights... or for that matter civilizations rights. Non-comercial uses of copyrighted material, even in copying the material is essentially a Constitutional right of the owner of the material.
So this issue isn't if Lars can control how the material he creates is used, as a moral and a legal issue, Lars never had the right to dictate in the first place. That he thinks that he does shows the degree of brain washing media companies have instilled into his and others thinking.
Lar keeps talking about his music and says he wants the right to it's use, and considers that to be the major personal issue for him. The trouble is that he's mistaken in the first place.
Creating a work of music or any other itellectual work does not create ownership of that work. We all live in the world together, and the foundation of human society is the sharing of our thoughts and creations. What Lars owns is a COPYRIGHT license to the music he created for a limited amount of time, and with limited prilvedge to the material. He never did and never will have control of how his music is used. Fundementaly, the ownership of a copy of his music is the owner of the medium of the copy. The owner of the medium is restricted in his use of the medium only to the degree that Lars copyright license restains the owners rights... or for that matter civilizations rights. Non-comercial uses of copyrighted material, even in copying the material is essentially a Constitutional right of the owner of the material.
So this issue isn't if Lars can control how the material he creates is used, as a moral and a legal issue, Lars never had the right to dictate in the first place. That he thinks that he does shows the degree of brain washing media companies have instilled into his and others thinking.
Mr. ASHCROFT. Mr. President, I rise in support of the conference report on H.R. 2281, a bill to implement the World Intellectual Property Organization copyright treaties. I am pleased that the final product of the many months of negotiations has produced a bill of appropriate scope and balance, and reflects many of the priorities I established through the introduction of my own bill to implement the WIPO copyright treaties, to begin updating the Copyright Act for the digital era, and to address the potential problem of on-line servicer liability.
First, with respect to `fair use,' the conferees adopted an alternative to section 1201(a)(1) that would authorize the Librarian of Congress to selectively waive the prohibition against the act of circumvention to prevent a diminution in the availability to individual users (including institutions) of a particular category of copyrighted materials. As originally proposed by the Administration and adopted by the Senate, this section would have established a flat prohibition on the circumvention of technological protection measures to gain access to works for any purpose, and thus raised the specter of moving our Nation towards a `pay-per-use' society. Under the compromise embodied in the conference report, the Librarian of Congress would have authority to address the concerns of libraries, educational institutions, and other information consumers potentially threatened with a denial of access to categories of works in circumstances that otherwise would be lawful today. I trust that the Librarian of Congress will implement this provision in a way that will ensure information consumers may exercise their centuries-old fair use privilege to continue to gain access to copyrighted works.
Second, the conferees made an important contribution by clarifying the `no mandate' provision of the bill. Because the conference report is silent, I thought that I should explain this provision in some detail. As my colleagues may recall, I had been very concerned that S. 2037 could be interpreted as a mandate on product manufacturers to design products so as to affirmatively respond to or accommodate technological protection measures that copyright owners might use to deny access to or the copying of their works. To address this potential problem, I authored an amendment providing that nothing in the bill required that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product
I'm sending this email out to you about the The Digital Millennium Copyright Act, Public Law 105-304 (1998), which added a new Chapter 12 to title 17 United States Code.
This Act by Congress needs to be dramatically altered to ensure that the fair use rights given to US citizens under the Constitution are better protected, and to ensure that everyone in America has the right to innovate and participate fairly in commerce.
Without going through the complete details of the the entire act, fundamentally, this law was passed by congress in response to the increasing concern by various traditional broadcast and media corporations
that the limit license provided by copyrightis becoming harder to protect in the digital environment. The trouble with the act is that it has no respect for the constitutional balance between the rights of holders of copyright licenses and the rights of
the public. The rights of free speech and property, which are constitutional guaranteed to all individuals, have been made secondary to the protection of the privilege of copyright, which is a limited license granted to a individuals as congress sees fit for the purposes of encouraging practical sciences. In fact, this point is made clear in the legislative history of the DMCA as Congress as claimed the constitutionality of the DMCA under COngresses empowerment under the commerce cause, not the copyright clause. The trouble is that Congress has used it's powers under one clause of the Constitution to eliminate the publics rights under the Bill of Rights.
While the DMCA is Constitutionally questionable, it is morally repugnant since it reduces the publics ability to participate in commerce and public life. Both individual free speech and individual property rights, as guaranteed under the "Fair Use" doctrine, have been absolved by the DMCA to consumers of information. And, of course, we are all information consumers.
both free speech and property of people who consume information. And of course we are all consumers of information.
As Law Professor Yochai Benkler of NYU, an expert of Inforamation Law, was quoted as saying, "If the judge finds for the plaintiff (in a case involving the DMCA in NY), and the decision isn't knocked down on appeal it will create an environment that's closed like nothing we've ever seen before....Say you want to criticize the liberal leanings of Hollywood, or criticize the sexist movie of this or that, You need to be able to quote little pieces of the movie. You can do that under the copyright law, because that's fair use, but using DVDs lawfully as the [film association] reads the law, you can't do that. This really extinguishes user privilege to an unprecedented degree."
(For more information see :http://www.villagevoice.com/issues/0018/howe.shtm l)
The DMCA, as it is currently written and interpreted by the Federal District Court of NY, under Judge Lewis Kaplan, (See the transcript at http://www.2600.org/news/2000/0121-files/0121-tran s.html ) is being interpreted so strictly as to undermine the protections that were written into it for protecting reverse engineering and fair use. The law states that if a copyrighted material is available in digital format (and what is not going to be available in digital format in the future), that an electronic access device can be used to regulate access to that material in order to prevent piracy of the material.
The trouble with the law is largely 3 fold:
A - The law tramples on fair use and property rights. B - The law is stifling innovation. C - The Law is stifling free speech and is a direct threat to the kind of discourse necessary for a free society.
In the first case, up until now, the Supreme Court has drawn a line between the limited rights of a copyright holder to material, and the protections of speech and property of owners of the actual media in which material is publish on. For example, an owner of a record is allowed to copy music to cassette tape for personal use. The owner of a book has the right to quote parts of the book, as I did here, even to photocopy it for a personal archive or a report. The DMCA prevents these activities when the printed text or the audio track is on a DMCA protected digital format. As an example, in the case of the new DVD media, the purchase of the DVD does not give the owner of the disk the right to use it as they see fit. For example, they may only be allowed to view the disk on a computer running Microsoft Windows, or a computer using a specifically permitted software or other authorized device.
This arrangement places a choke hold on what information can and can not be viewed and removes freedom of choice and fair use. You can not copy any segment of the information, anotate it, or print it out. As things are currently, for example, a standard American DVD can not legally be seen on the Linux Operating System, the second largest operating system in current use in the US. In response to not being able to view DVD's on Linux, Linux developers created a program to access the DVD for viewing. The developers posted the program on the internet. In response, the Movie industry brought suit in NY and in California. Judge Kaplan in NY has said in his ruling that EVEN UNDER THE CONDITION that the program was developed for use under Linux, and was protected under the reverse engineering clause of the DMCA, that this would not protect the developer of the program from arrest, or the web masters who post the program on the internet from prosecution under the DMCA.
As it is, the developer is a 16 year old boy and both the boy and his father were arrested in Norway, where they live. If he lived in America, the boy would be considered a felon under the DMCA.
In the second case, if Judge Kaplan's ruling is to stand, and if congress does not strengthen the rights of developers to reverse engineer DMCA hardware and software for inter-operability with new hardware and software, then the impact on the US economy will be devastating. The Linux operating system, for example, was created by a graduate student who had an open platform in the IBM Personal Computer clone. Without the ability to have this open platform, the Linux operating system, in addition to nearly every other internet based piece of software, could never have come into existence. The DMCA is a dagger at the heart of Linux, and other new technologies like it, and to the internet itself. If any part of the PC which is copyrighted (which is almost the entire platform), the DMCA today would prevent the exploration of the hardware and the firmware, and more to the point, would, with new technology make it illegal just to access the computers insides without pre-authorization by the copyright holders of the technology.
In short, under today's legal system, thanks to the DMCA, the internet itself, which is largely driving today's economy, would never have come into existence because the protocols which run the networking would be protected and closed through means of DMCA devices.
In the third case, the DMCA is stifling free speech today, and will have an increasingly devastating effect on free speech in the future. The news outlet at http://slashdot.org has received notice from Microsoft Corp. to remove information posted on the web site in discussing Microsoft business practices, because they claim, not that the information itself was copyrighted, but because it was protected under the DMCA. The copyright itself would not have given Microsoft protection because the material was being discussed in the context of a of a conversation of it's unfair business practices. So they needed to invoke the DMCA. Microsoft is bypassing the fair use doctrine which protects individuals and news media by invoking the DMCA. (see http://nylug.org/list-archives/NYLUG-TALK/2000-05/ msg00159.html for a copy of the Letter sent by Microsoft to the publisher of slashdot) This threat is larger than the recent spat between Time-Warner and Disney over channel seven/WABC. In that case, the NY Times has ardently come out in support of protecting the freedom of speech by the press. In this case, there would no longer BE ANY PRESS except for news disseminated through approved channels under DMCA protection. Both creators and consumers of information would be censored through the control of access to the public.
Barring any potential perceived monetary risk which media companies think up, and especially in light of the fact that no evidence exists that digital media has cost companies a single penny from copyright infringement, I must ask that the Congressmen take the lead in protecting individual property and fair use rights, freedom to innovate and share in our prosperity, and freedom of speech. This is the trinity of a great and free society. Congress is empowered to protect and enhance these activities. But Congress has stumbled because it seems to lack a real understanding of the issues, and how technology works.
I want you to lobby and to present a bill to repeal the DMCA, or at least, pass an amendment reaffirming the rights of every individual, in relationship to copyrighted and exchanged information, to their historical guarantees which have, until now, served this great nation so well.
________________________________ Other Sourses of Information:
http://www.nytimes.com/library/opinion/safire/0504 00safi.html http://www.villagevoice.com/issues/0018/howe.shtml http://slashdot.org Must Read-->http://noframes.linuxjournal.com/articles/c urrents/016.html
After spending a good part of 3 days reviewing the Tapes of the east coast hearings on the DMCA, I think that a number of problems can be outlined in the attempt to hurdle fair use of copyrighted materials for Open Source development, and in the rest of the world.
First of all, being there and at these sort of hearings is very important. The Library Associations had presented a dozen or so testimonies. As a result, through the testimony that the libraries gave, they shaped the framework and the context of the hearings that for the rest of the testimonies.
Fortunately, Open Source and Libraries largely dovetail their needsin terms of copyright. But there exists important differences between theneeds of Libraries and Open Source developers. Concessions that Libraries obtain, may well not be extended to the public at large. We need to also bring this same level of lobbying to the Government if we want our individual rights to survive, let alone Linux or FreeBSD.
Secondly, the largest problem I see is in the definition of words. Repeatedly, proponents of access control talked about the rights of property owners, and described copyright holders as property right owners, and such were expecting certain rights. They then went on to describe "Fair Use", on the other hand, as a doctrine and privilege.
This axiom was never sufficiently challenged, and is of course, essentially wrong.
Copyright is indeed the privilege and Congress can remove all copyright tomorrow if they so desired. Fair Use, on the other hand, is the constitutional right of individuals, and nothing can be done to remove "Fair Use".
For example, your rights can not be given away by contract. I would not be able to sign an agreement preventing my freedom of speech or assigning it to another. Similarly, I can not give away my right to property, to have due process, etc. These are guarantees. But a copyright can be sold - straight out.
Clearly, the Fair Use doctrine was created by the courts to define the property rights of individuals over material aquired under copyright. Therefore, "Fair Use" is not a privilege at all, nor can I agree to give it away in a click through license.
There have been comparisons made that a person using a legally acquired work and hacking through access controls to use the material in a way protected under the Fair Use doctrine is the same as a person breaking and entering into a home/business to make Fair Use of a book in a store. Nevertheless, this is clearly invalid at the core premise. In fact, the limitation of Fair Use of a material legally purchased by an individual is comparable to Time Warner breaking into my home and stealing my VCR because I lent a my copy of the Titanic to my Grandmother.
Secondly, the panel at the copyright office really does not take the Open Source community seriously. They find us an amusing group of little consequence.
Thirdly, many people purjured themselves at the hearings. This is especially true with Time Warner who said that there is a legal license of Linux to play DVD's currently. Yet in fact, Creative Labs told me that the Movie Industry threatened them if they released another open soured driver for their current DVD player.
A fourth point is that the DMCA definitely created a dangerous precedent, which Congress was completely aware of, and said so in the Legislative History
of the DMCA. It is repeated in the text. When Congress could not resolve the constitutional issue of Fair Use with Access control they passed the issue to the Copyright Office. In order to get the statute passed, they left the Fair Use problem to the Copyright Office to solve. And yet many people told the Office they had no right to address that issue, which was clearly intentionally left to them in the first place because Congress could not resolve the problem itself.
So a great Constitutional issue has been passed by Congress to the Copyright Office. I'm not sure if Congress actually has the power to do this. But the thrust of the Copyright Office is to not do anything to destroy the law totally of its bite. The problem is that Access Control is incompatible with the Rights of Property and free Speech granted to individuals under the Constitution (what is generally being called Fair Use doctrine) One completely destroys the other as a practicle matter. This puts the Copyright office in a position of making rules to prevent access control from destroying the Bill of Rights and clauses within the
Constitution which protect individuals from Government or private interests. I do not think the copyright office can do this even if it wanted to. And therefor the entire law might be unconstitutional. Either way, the Office needs to be urged to make sweeping classes of material exempt from the DMCA because to do so otherwise would be unconstitutional.
Fifth - a major weak point in many of the arguments was a lack of examples of harm by the DMCA. Well, the DVD control is one, the destruction of Audio Digital Tape another (prior to the DMCA), the Steven King e-book is a third, being unable to scan past advertisments is a fourth etc, etc,etc
We need the people in California to be prepared with cases of this, and the Comments to Testimony coming up after the hearing should detail these abuses. Bring a DVD if you need to!
The argument was repeatedly made by media industry that they will guarantee us certain rights because it is in their interest to do so and can therefore be trusted to protect Americans rights to property and speech. This argument must be attacked vigorously.
First, Industry does not give us "Fair Use" rights - the Constitution guarantees it to the public. Secondly, the concessions they are making,
they have no real control of. For example, they claimed to allow people
to RIP CDs for personal use. This is something they clearly have no control over and had tried to stop when they killed the Digital Audio Tape format. Also, as made clear by the WABC cable spat, they have proven that they can not be trusted to protect the interests of the public. In fact, if they did so, they would be in conflict with their responsibility to stock holders. By definition, businesses serve their own purposes. In addition, Congress has granted the responsibilty of protecting of our rights to a private enterprise, which if not unconstitutional, is still morally corrupt.
Secondly, Industry has a track record of impeding the rights of the Public in matters of Fair Use. Valentiani, who represented the Movie industry flat out compared access of a video media to buying a ticket at
a movie theater. He directly linked access of a legally acquired copy of material to the fee for view model of seeing a performance at a theater. Congress went to great pains to prevent this in the DMCA, but without Fair Use protections, industry has said on record that it wants a pay per view license and the end of Fair Use.
Slashdot Mirror
While it's amazing how many of these "It's the Law" posts are flat out wrong, it shouldn't suprise anyone. Many of them are posted by people paid to put out disinformation. In fact, the entire article is an example of disinformation.
If you create something and then intentionally remove it from the market to bring out something else, which will be forced on users, this is the very definition of Copyright Abuse!! It's immoral, and it's NOT legally defendable.
It's exactly want the Founding Fathers tried to prevent in regards to making sure Copyright was NOT an unlimited property right. And this is the most important point...obtaining a Copyright on a work of art does not create property!! See Fair Use for a further education.
That would be correct - NO Just because they have a copyright, once it is put into distribution, it is NOT their right to control the material any longer. Intentionally removing it from the market and then preventing the distribution is an obstruction of constitutionally guaranteed fair use. The IS an abandoment concept to copyright.
Oh Please...That was the worse discussion on Copyright I've ever seen. What was the purpose of the Chart on Piracy Loses - which in of itself is Bogus. Copyright does not create property - it's a limited license.
I agree with you whole heartedly and posted nearly the same message last time.
It is not enough to get a victory under freedom of the press (or even code as speech). The ruling that Free Software, and for that matter the American Public, needs is for the Judge to rule that the provisions of the DMCA can not overrule the right of reverse engineering or fair use because these are constitutional guarantees...every bit as important as a Free Press. He needs to set the DMCA right, and to interpret this vague law under it's correct interpetation. Kaplan is essentially reading this law wrong! Fair USe is protect4ed under the DMCA and if it wasn't, it would be unconstitutional in it's whole.
Oh - That's rich, but I thought it was true.
The record companies actually PAY the Radio stations to play their records. In addition, did you read the section where she says that under current law, Musicians never have copyright of the material they create!! So the whole argument that the Copyright law protects the Artists is, as we actually knew, just untrue when the facts of current business law is examined.
Ruben
----------------------------------------
I also think Metallica is being given too much grief. It's anti-artist, for one thing. An artist speaks up and the artist gets squashed: Sharecropping. Don't get above your station, kid. It's not piracy when kids swap music over the Internet using Napster or Gnutella or Freenet or iMesh or beaming their CDs into a My.MP3.com or MyPlay.com music locker. It's piracy when those guys that run those companies make side deals with the cartel lawyers and label heads so that they can be "the labels' friend," and not the artists'.
Recording artists have essentially been giving their music away for free under the old system, so new technology that exposes our music to a larger audience can only be a good thing. Why aren't these companies working with us to create some peace? There were a billion music downloads last year, but music sales are up. Where's the evidence that downloads hurt business? Downloads are creating more demand.
Why aren't record companies embracing this great opportunity? Why aren't they trying to talk to the kids passing compilations around to learn what they like? Why is the RIAA suing the companies that are stimulating this new demand? What's the point of going after people swapping cruddy-sounding MP3s? Cash! Cash they have no intention of passing onto us, the writers of their profits.
You also bring up a good point. One of the MAJOR troubles of the DMCA is that everyone who was involved in voting for it got a piece of legal code added. There were all kinds of expectations of how it would work, and various Congressional leaders who pushed for the Bill and altered it in the concilation Commitee which dovetailed the Houses version with the Senates version, and the individual comitees in the house and senate, all had different ideas about what certain clauses would do to protect and enhance Copyright and Fair Use.
The DMCA is one of the poorest written peices of legistlation ever to come out of Western Civilization, in addition to it being largely unconstitutional.
It would not have been passed if key members of Congress who voted for it had the ability to see the assualt on Fair Use that it created.
New Yorkers for Fair Use
No - that's not like broadcasting on a Radio. Radio Stations are businesses which exploit the work for profit. Sharing is allowed for free with no comercial benifit. Ruben
Why can't I make them publically available as long as I don't sell them.
Ruben
You make some great points, but a few things to be looked at.
First, I think that the Constitutional provissions of Freedom of the Press and Freedom of speech can not be superceded by any act of Congress, including the DMCA. This is why I beleive Kaplan is looking at the Freedom of Speech issue and wondering if the Horse is out of the Barn.
If Corly (Pronounced Goldstien
Ultimately, while the DMCA tries to define Reverse Engineering, and Fair Use, it's not really the last word on these issues since they are Constitutional Doctrin. But even still, the DMCA, which can be seen in it entirety in the link provided, gives us the following contradictory passages!!!
------------------------------
(f ) REVERSE ENGINEERING.-(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained
the right to use a copy of a computer program may circumvent
a technological measure that effectively controls access to a particu-
lar portion of that program for the sole purpose of identifying
and analyzing those elements of the program that are necessary
to achieve interoperability of an independently created computer
program with other programs, and that have not previously been
H. R. 2281-8
readily available to the person engaging in the circumvention, to
the extent any such acts of identification and analysis do not
constitute infringement under this title.
``(2) Notwithstanding the provisions of subsections (a)(2) and
(b), a person may develop and employ technological means to cir-
cumvent a technological measure, or to circumvent protection
afforded by a technological measure, in order to enable the identi-
fication and analysis under paragraph (1), or for the purpose of
enabling interoperability of an independently created computer pro-
gram with other programs, if such means are necessary to achieve
such interoperability, to the extent that doing so does not constitute
infringement under this title.
``(3) The information acquired through the acts permitted under
paragraph (1), and the means permitted under paragraph (2), may
be made available to others if the person referred to in paragraph
(1) or (2), as the case may be, provides such information or means
solely for the purpose of enabling interoperability of an independ-
ently created computer program with other programs, and to the
extent that doing so does not constitute infringement under this
title or violate applicable law other than this section.
``(4) For purposes of this subsection, the term `interoperability'
means the ability of computer programs to exchange information,
and of such programs mutually to use the information which has
been exchanged.
_______________________________
Congress added this because it would not withstand a Court Case otherwise. Likely the issue of Fair Use. Without Fair Use provissions, the DMCA would be struck down as Consonstitutional in the Cradle. Part of what these Law Suites are about is the MPAA trying to redefine Fair Use in the eye of the public. Where Fair use was the right to make archival Copies, they are say - no - it isn't.
But the DMCA is clear even in it's text that is can not over rule FAIR USE......
______________________________________________
(c) OTHER RIGHTS, ETC., NOT AFFECTED.-(1) Nothing in this
section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title.
______________________________________________
The mechanism of Copyright Office review is some quack idea to try to save this insane act from Court Review death. If the DMCA is an impedence to Fair Use, it should become a dead letter. Therefor the REAL battle is over the definition of Fair Use. That is the issue this case, if decided upon Freedom of Speech/the Press, threatens to circumvent, at least for another day.
analysis and understanding is that we are so
passionate about the issue of being able to create free software
to play DVD's, and the threat of the DMCA to the continued development
of free software, that we are overlooking the specifics of this
particular case.
In the case against Corey, we have a situation where the prosecution
is saying that Corey is trafficking in an illegal software program
that violates the DMCA. The defense, on the other hand, has been
arguing that Corey is a JOURNALIST!!! and that the links to the
DeCSS program is a protection of the 1st Amendment, protected
Free Speech and an issue of Freedom of the Press.
In this light, actually, the issue of the DMCA is actually a side
show altogether. The real issue is can the court suppress the
Press from reporting the location and contents of DeCSS,
regardless of any violation of the DMCA.
In consideration of THIS question, Kaplan is asking if the Horse is
out of the Barn, Is DeCSS publicly available knowledge which is
newsworthy and therefor afforded protection. This is indeed a
fair point of view in regards to this specific case. Does it
really matter if 2600.com publishes the link, as opposed to
the NY Times?
Probably not.
However, such a ruling does not answer the fundamental question
of the legality of the DMCA or it's use as a legal means to
repress reverse engineering or forms of freedom of speech more
specific the "Fair Use" doctrine.
On the other hand, if Kaplan rules that DeCSS is a form of
speech protected under the 1st amendment, regardless of it
being an instruction kit to descramble the CSS algorthim or
not, then the issue of the Horse being out of the Barn is
irrelevant. Free Speech is assumed to be permitted, horse, barn
or entire farm notwithstanding!
In any event, a ruling in favor of Corey under this logic may not
be what's in the best interest of Free Software, or for that matter,
the public's welfare. Ideally, Kaplan would examine the facts and rule
that the property rights of the writers of the DeCSS permits them to
reverse engineer the CSS encryption scheme, and their rights to
freedom of speech permits them to distribute the code
as they see fit. He would rule this is permissible under the DMCA
and in line with previous Constitutional Ruling of the Supreme Court,
or he would rule that the DMCA is unconstitutional because it's
enforcement would violate the civil rights guaranteed every citizen
to their property and their freedom of speech. Then he would
rule that because the software was legally developed for a legal
purpose, that the MPAA's arguments for a permanent injunction
has no basis in the law, DMCA notwithstanding.
Baring a ruling similar to this, the MPAA might loose this battle, and
not appeal, thereby sidestepping the major issues which argue that the
DMCA is either unenforcible as the MPAA wishes it to be,
or unconstitutional. And in the long run, that would be very bad
for the public and Free Software.
Bet the Farm on it!!
New Yorkers for Fair Use
I'm also tired of Judges who refuse to do their jobs, like Judge Kaplan, and profess to have knowledge that they don't. Kaplan's behavior on the Bench seems to merit his impeachment.
I'm also tired of Judges and Lawyers who can't count past the Number 2 and trolls which represent the MPAA.
---And I am tired of people who are not lawyers not understanding laws, especially one as simple and direct as this one. I've posted this before but obviously it didn't penetrate into some people's skulls so I'll tear it down # by #.--
--- 1) Your first sentence is correct - your second sentence is what YOU think it should be. But it's not and go whine to congress. Currently it's illegal to circumvent CSS no matter what you believe or want to think it should be. DeCSS circumvents CSS - that's exactly what the authors of the program say it does, that's what the defense stipulated to in court that it does, that is what every single expert on the stand has said it does. Please don't continue to pretend to be ignorant to it's true function. --
Actually, nearly every Lawyer I have spoken too disagrees with your assessment.
To quote The Village Voice
"If the judge finds for the plaintiff, and the decision isn't knocked down on appeal," says Yochai Benkler, a professor of information law at New York University, "it will create an environment that's closed like nothing we've ever seen before."
Since I work for NYU, I called Benkler. I asked him about Kaplan's decision that even if the DeCSS was created for reverse engineering purposes, even then the DMCA would not permit the posting of a LINK to the DeCSS code. It seems completely incompatible with the plain meaning of the reverse engineering clause in section 1201 of the DMCA and the Fair Use clause. It is his opinion that Judge Kaplan is making a major stretch in claiming that while the DMCA is so poorly written that it directly stands in conflict of itself, that reverse engineering is OK for an individual user, but that dissemination of the Code would be a violation. It is also his opinion that the DMCA will not stand a review by the Supreme Court if Judge Kaplan's ruling is a correct interpretation of the act.
--- 2) Reverse engineering has some very narrow criteria. And perhaps DeCSS meet these. Do you suggest that every single person using DeCSS uses it for the educational value reverse engineering provides. AND you conveniently forget that even reverse engineering still does not allow you to simple ignore existing copyright protections.---
Reverse engineering has nothing to do with education. Educational copying of copyrighted material is a Fair Use as determined by the Supreme Court and legislated into the copyright code under section 107 of the Copyright Law. Reverse Engineering, by definition, is a protected right which anyone can partake of without permission of the designer of the original device. This is obvious and is considered Prima Faca evidence. Compact did not have IBM's permission to reverse engineer the PC.
--The copyright holder still maintains control over access to his material and no matter HOW you got to the material (unencrypted movie file) the copyright owner STILL owns it and can dictate (like it or not) how and by whom it's accessed. This is not a valid exception and case law supports this. --
Legally speaking - this whole statement is just wrong. First of all, Copyright holders NEVER have the right to maintain control over access to works no matter HOW they distribute the material. The only thing a Copyright holder owns is a license to a limited commercial monopoly of a work. They can not prevent anyone who obtains a copy to limit when they view it, how they view, and with whom they view it with, who they sell their copy to, or how they view it. I think you just made this up.
-- 3) Too bad copying entire movies is not even remotely "fair use" --
Actually - making a copy of a work for personal use, educational purposes, archival purposes, and even to give away for FREE is exactly what Fair Use doctrine is as developed as the Supreme Courts response to abuses of Copyright which inhibited Constitutionally guaranteed civil rights to Property and Freedom of Speech. It was later legislated directly into the Copyright Statute which can be read at New Yorkers for Fair Use.
--too bad that no one is using DeCSS to critique a small sample of a movie. Too bad that there is no need to use DeCSS to perform "fair use" and that it could be performed by other means and so fair use is not an excuse for circumvention. AND, even if fair use was the honest intention - that still does not override the prohibition on circumvention. You must learn how to read law.--
What's too bad is that you fail to understand what your reading in the Law. A purchaser of a Disk does not enter into any contract with the Copyright Owner, or licensing agreement. They can do anything with the disk that is guaranteed under the Constitution as part of their civil rights to ownership of property. This right of property is a guarantee of the Constitution. Copyright does not extinguish an individuals right to his property. He can therefor do what ever he wishes to the disk aside from commercially exploiting it, which is reserved for the Copyright Owner. The Copyright Owner of the material has a limited license from the Government. The Disk owner is the property owner and is not limited by any licenses.
--4) While DeCSS, the source code of that program, is protected as free speech. There is NOTHING in free speech which gives license to violate copyrights.--
This is not the question in front of the court. The question in front of the court is if there is ANYTHING in Copyright which can limit Free Speech. If the Code is Free Speech, it is protected under the Constitution. Copyright can not prevent Free Speech, and that is part of the definition of The Fair Use Doctrine.
-- Again, precidence and the preponderence of case law demonstrates this. Do some research instead of regurgitating EFF BS--
Again - I think you made this up..
--- 5) You sound like an MS hater. This case has nothing to do with antitrust or misuse of copyright and you'll find that neither of those lame defenses was even attempted, even by this lame defense team. ---
Right.... and you are what??? A Troll?
--Copyright owners are free to decide how their IP is distributed and by whom and how it's viewed. Get a grip - stop pulling terms that don't apply outta yer butt! ---
Actually - they are NOT, which is why the DMCA is likely to be struck down by the Supreme Court.
Test
Put it this way....even with non copyrighted material, you have a the right to fair use of your property and freedom of speech. The government can limit your property to a certain degree, but it needs constitutionally sound reasons to do so. Fair Use is your civil rights. Anytime copyright conflicts with Fair Use, Copyright looses - and there is a slew of Court Cases upholding this.
Copyright is by definition limited. Property rights is by definition unlimited. The government must justify limiting your property rights, or your freedom of speech.
As such, the DMCA was passed by Congress, not under the authority of the Copyright clasue of the constitution, but under the COMMERCE claus. In the end, I'm fairly certain that it will be struck down in the Supreme Court because Congress doesn't have the power in the Constitution to use either the Copyright Clause OR the Commerce Claus to limit the Constitutional Guarantees of Fair Use.
The purpose of creating a seperate act which specifically reinenforces "Fair Use", is two fold:
A - To prevent the chance (however slim) that the DMCA is upheld similarly to the Tawdy Court's ruling in Dred Scott which declared "Negro's" non-human and property...
B- To end the COST of defending Fair Use by running every damn case to the Supreme Court.
I don't trust the Court ENOUGH, nor do I want to keep wasting money and time defending myself against morally unethical companies like Time-Warner (the company which invented the Sub-liminal Ad) who have inexhaustable pockets of income.
We should also include a provision where the Copyright Office can remove the Copyright of any company which uses it's Copyright in an abusive manner, to obstruct the flow of the information needed for citizens to participate as equals in society and government, which creates too high of a ceiling for fair education, which endangers free speech, or uses copyrights to prevent economic advancement or fair compitition.
Ruben Safir
New Yorker for Fair Use
One of the things we can do to fight off this law suit it too slashdot Congress to pass a bill assuring Fair Use. The MPAA is on a media blitz and confussing people about the basics of information, culture and copyright. What we need is to get Congress to pass a NEW LAW which guarantees Fair Use over the provisions of any other Copyright Law. We can wait for the Supreme Court to uphold Fair Use, but we can also demand from Congross these protections as well, and then undermine the Court Case entirely.
Orin Hatch is already upset with the degree the DMCA underminded Fair Use. We can HELP him fix his mistake. www.NYFAIRUSE.org is one organization which is trying to do just this.
It seems that quite a bit of coverage of the DVD trail is taking hold in
the media. I even saw an article on this in the NY Post, although it
failed to mention the protest.
We got fairly lucky on the Protest because I ran into Jerrold Nadler,
who is the Congressman for the Upper West Side and Boro Park in
Brooklyn. He may be the Representative of many of you in Manhattan. I
used to live in his district, but I no longer do.
We need to now strike a legislative dialog with Nadler. To me, he's one
of the best representatives in the state. He's usually informed, bright
and and unafraid to take a position.
We need to start a legislative movement to protect Fair Use. Clearly,
the provisions in the DMCA of 1998 designed to protect "Fair Use" and
property rights are being run roughshod by the Kaplan Court. Most
importantly, this quote by the MPAA is offensive. It is reported by
CNET at
http://news.cnet.com/news/0-1005-200-2274970.html
"DeCSS is simply the 'lock pick' in the high-tech crime of breaking into
another person's digital property," the MPAA said in a statement
posted on its Web site. "The First Amendment (the legal right to free
speech) provides no protection for such conduct."
We need Congress to pass a law and for Nadler office to put forward a
bill which reinforce "Fair Use" in statutory law, reinforcing it's
Constitutional Status as the rights of the public.
First, we need a law which explicitly makes clear that a normal retail
transaction for a physical copy of any media gives possession
as property of that disk to the purchaser of the disk, just like it
does with a pair of shoes. Therefor, the analogy that someone picks a
lock of something that they actually own can be ended both legally and
philosophically. One is allowed to pick the lock of something they
OWN. Since a DVD is purchased without a negotiated contract, in a
simple cash transaction, the ownership of the lock of the DVD is in the
hands of the disk owner.
Secondly, we need a law which explicitly gives the owners of media which
contain copyrighted material, explicit "Fair Use" protection and
"Reverse Engineering" protection which explicitly takes priority over
any DMCA protections, or any other protections. Despite the attempt of
Congress to include "Fair Use" protection in the DMCA, without which the
law would not have been passed by Congress, the law was written against
itself in section 1201 and Judge Kaplan is ignoring these protections in
the Courtroom. As such, these "Fair Use" protections must be reinforced
and made clear. It must be clear that prior authorization of the
Copyright Holder is unneeded by those attempting reverse engineering or
Fair Use.
Thirdly, we should empower the Copyright Office to remove Copyright
protection from any individual who abuses Copyright to the detriment of
Fair Use through frivolous lawsuits. COpyright should be removed from
any Company which has abused it's limited license to monopoly control of
Copyrighted Material by preventing the educational process or economic
development through reverse engineering. Teeth need to be put into the
Law to prevent abuse of power.
Lastly, we need a change in Copyright which allows for the ending of
Copyright of Software and Content which is no longer available from the
Copyright Holder at a fair market price. This will force Software
Companies to continue to make available important business software and
end the unfair forced upgrade of working products and games, or to hand
over control of them to people who see a reason to do so.
http://www.nyfairuse.org
--
Ruben I Safir
It seems that quite a bit of coverage of the DVD trail is taking hold in
the media. I even saw an article on this in the NY Post, although it
failed to mention the protest.
We got fairly lucky on the Protest because I ran into Jerrold Nadler,
who is the Congressman for the Upper West Side and Boro Park in
Brooklyn. He may be the Representative of many of you in Manhattan. I
used to live in his district, but I no longer do.
We need to now strike a legislative dialog with Nadler. To me, he's one
of the best representatives in the state. He's usually informed, bright
and and unafraid to take a position.
We need to start a legislative movement to protect Fair Use. Clearly,
the provisions in the DMCA of 1998 designed to protect "Fair Use" and
property rights are being run roughshod by the Kaplan Court. Most
importantly, this quote by the MPAA is offensive. It is reported by
CNET at
http://news.cnet.com/news/0-1005-200-2274970.html
"DeCSS is simply the 'lock pick' in the high-tech crime of breaking into
another person's digital property," the MPAA said in a statement
posted on its Web site. "The First Amendment (the legal right to free
speech) provides no protection for such conduct."
We need Congress to pass a law and for Nadler office to put forward a
bill which reinforce "Fair Use" in statutory law, reinforcing it's
Constitutional Status as the rights of the public.
First, we need a law which explicitly makes clear that a normal retail
transaction for a physical copy of any media gives possession
as property of that disk to the purchaser of the disk, just like it
does with a pair of shoes. Therefor, the analogy that someone picks a
lock of something that they actually own can be ended both legally and
philosophically. One is allowed to pick the lock of something they
OWN. Since a DVD is purchased without a negotiated contract, in a
simple cash transaction, the ownership of the lock of the DVD is in the
hands of the disk owner.
Secondly, we need a law which explicitly gives the owners of media which
contain copyrighted material, explicit "Fair Use" protection and
"Reverse Engineering" protection which explicitly takes priority over
any DMCA protections, or any other protections. Despite the attempt of
Congress to include "Fair Use" protection in the DMCA, without which the
law would not have been passed by Congress, the law was written against
itself in section 1201 and Judge Kaplan is ignoring these protections in
the Courtroom. As such, these "Fair Use" protections must be reinforced
and made clear. It must be clear that prior authorization of the
Copyright Holder is unneeded by those attempting reverse engineering or
Fair Use.
Thirdly, we should empower the Copyright Office to remove Copyright
protection from any individual who abuses Copyright to the detriment of
Fair Use through frivolous lawsuits. COpyright should be removed from
any Company which has abused it's limited license to monopoly control of
Copyrighted Material by preventing the educational process or economic
development through reverse engineering. Teeth need to be put into the
Law to prevent abuse of power.
Lastly, we need a change in Copyright which allows for the ending of
Copyright of Software and Content which is no longer available from the
Copyright Holder at a fair market price. This will force Software
Companies to continue to make available important business software and
end the unfair forced upgrade of working products and games, or to hand
over control of them to people who see a reason to do so.
http://www.nyfairuse.org
--
Ruben I Safir
More interesting from the Times this week was the Full Page IBM add in Thursdays Business Section which pronounced Linux the wave of the Future:
u nday/061100biz-music-foege.html
.... again
"How long does it take for what was once a grassroots movement to become
a mainstream force?
How long till the world's fastest growing operating system becomes the
worlds most popular operating system?
How long can the advocates of closed and proprietary systems hold the
forces of open standards at bay?
How long till your grandmother is ordering her groceries over the Web on
a system based on Linux?
Maybe she already has?"
IBM has tied a free societies social agenda to their profit margin!!
Not it's a responsibility as Open Sourced users to take the issues of
Open Sourced code, and the free exchange of information tot he street.
WE MUST NOW START TO DEFEAT THE DMCA AND PROTECT FAIR
USE!!!
Also - the article about Artist for Napstar is very important!!
http://partners.nytimes.com/library/financial/s
This little baby shows how musicains are right now destributing music for FREE over the internet and RASIING sales of CD's in the Process!!!!
Like Duh!!! Exposure creates sales!!! Who would of thunk it!!!
Hemos
You said that must of us can agree with most of what Bronfman said. I can't understand where your coming from.
The premise of Bronfman's argument is:
For all of us, "Property rights are well understood and universally accepted. You own your home. Ypu own a car. They're yours - they belong to you. They are your property. Well, your ideas belong to you too. And "intellectual property" is property - period.
Well - Bronfman evidentely doesn't consider the Founding Fathers as part of this universe, because clearly, as Rich Stallman has documented, and as the law stands, and as common sense would tell you, your thoughts are NOT your property. In this has been the basic thrust of misinformation which the powers in the information industry is trying to impose on the American public. The the fact is that legally, morally and historically, your thoughts are owned, lock stock and two smoking barrels, by the public and civilization for properity.
Legally, our founding fathers thought about giving authers of works ownership of their works. But Hamilton, Madison etc., rightfully rejected this because it is a bad idea which would threaten civilization. Instead, our founding fathers gave Congress the power to limit the natural right of proptery and freedon of speach of owners of copies, and to restrict those rights through the vehicle of a limited copyright for the public good.
Part of the Human condition is that we live in this shared abstraction called a society and a civilization. It is essential for the health of civilization and society that inforamation can be freely distributed. The Human mind itself requires civilization and society for context for the creation of new thoughts and ideas. If we are honest, we would see that humans don't ever create ANYTHING without borrowing from others thoughts as they were transposed to them.
The Declaration of Independence was based on the work of John Locke. The music of Metalica is based on the work of Jimi Hendrix, etc etc.
So all of our thoughts and ideas spawn from previous ideas and thoughts. And therefor, the fundemental theory that Human ideas can be turned into personal property is legally, morally, and intellectually incorrect.
After Bronfman's foundation premise is dismissed as being legally, intellectually, and morally wrong, everything that extrapulates from this falsehood is FURTHER FALSE.
What is bothering me, Hemos, is that you give lip service to this disinfomation campain by conceeding the first point in your opening remarks. If you think any part of the Bronfman speach is correct and justified, then your as big of a threat our civilization as Bronfman is.
Ruben
Lar keeps talking about his music and says he wants the right to it's use, and considers that to be the major personal issue for him. The
trouble is that he's mistaken in the first place.
Creating a work of music or any other itellectual work does not create ownership of that work. We all live in the world together, and the
foundation of human society is the sharing of our thoughts and creations. What Lars owns is a COPYRIGHT license to the music he created
for a limited amount of time, and with limited prilvedge to the material. He never did and never will have control of how his music is used.
Fundementaly, the ownership of a copy of his music is the owner of the medium of the copy. The owner of the medium is restricted in his use
of the medium only to the degree that Lars copyright license restains the owners rights... or for that matter civilizations rights. Non-comercial
uses of copyrighted material, even in copying the material is essentially a Constitutional right of the owner of the material.
So this issue isn't if Lars can control how the material he creates is used, as a moral and a legal issue, Lars never had the right to dictate in the
first place. That he thinks that he does shows the degree of brain washing media companies have instilled into his and others thinking.
Lar keeps talking about his music and says he wants the right to it's use, and considers that to be the major personal issue for him. The trouble is that he's mistaken in the first place.
Creating a work of music or any other itellectual work does not create ownership of that work. We all live in the world together, and the foundation of human society is the sharing of our thoughts and creations. What Lars owns is a COPYRIGHT license to the music he created for a limited amount of time, and with limited prilvedge to the material. He never did and never will have control of how his music is used. Fundementaly, the ownership of a copy of his music is the owner of the medium of the copy. The owner of the medium is restricted in his use of the medium only to the degree that Lars copyright license restains the owners rights... or for that matter civilizations rights. Non-comercial uses of copyrighted material, even in copying the material is essentially a Constitutional right of the owner of the material.
So this issue isn't if Lars can control how the material he creates is used, as a moral and a legal issue, Lars never had the right to dictate in the first place. That he thinks that he does shows the degree of brain washing media companies have instilled into his and others thinking.
Mr. ASHCROFT. Mr. President, I rise in support of the conference report on
H.R. 2281, a bill to implement the World Intellectual Property Organization
copyright treaties. I am pleased that the final product of the many months
of negotiations has produced a bill of appropriate scope and balance, and
reflects many of the priorities I established through the introduction of
my own bill to implement the WIPO copyright treaties, to begin updating the
Copyright Act for the digital era, and to address the potential problem of
on-line servicer liability.
First, with respect to `fair use,' the conferees adopted an alternative to
section 1201(a)(1) that would authorize the Librarian of Congress to
selectively waive the prohibition against the act of circumvention to
prevent a diminution in the availability to individual users (including
institutions) of a particular category of copyrighted materials. As
originally proposed by the Administration and adopted by the Senate, this
section would have established a flat prohibition on the circumvention of
technological protection measures to gain access to works for any purpose,
and thus raised the specter of moving our Nation towards a `pay-per-use'
society. Under the compromise embodied in the conference report, the
Librarian of Congress would have authority to address the concerns of
libraries, educational institutions, and other information consumers
potentially threatened with a denial of access to categories of works in
circumstances that otherwise would be lawful today. I trust that the
Librarian of Congress will implement this provision in a way that will
ensure information consumers may exercise their centuries-old fair use
privilege to continue to gain access to copyrighted works.
Second, the conferees made an important contribution by clarifying the `no
mandate' provision of the bill. Because the conference report is silent, I
thought that I should explain this provision in some detail. As my
colleagues may recall, I had been very concerned that S. 2037 could be
interpreted as a mandate on product manufacturers to design products so as
to affirmatively respond to or accommodate technological protection
measures that copyright owners might use to deny access to or the copying
of their works. To address this potential problem, I authored an amendment
providing that nothing in the bill required that the design of, or design
and selection of parts and components for, a consumer electronics,
telecommunications, or computing product
http://www.hrrc.org/senflr.html
Greeting Congressmen
:http://www.villagevoice.com/issues/0018/howe.shtm l)
n s.html ) is being
/ msg00159.html for a
4 00safi.html l c urrents/016.html
I'm sending this email out to you about the The Digital Millennium
Copyright Act, Public Law 105-304 (1998), which added a new Chapter 12
to
title 17 United States Code.
This Act by Congress needs to be dramatically altered to ensure that
the
fair use rights given to US citizens under the Constitution are better
protected, and to ensure that everyone in America has the right to
innovate and participate fairly in commerce.
Without going through the complete details of the the entire act,
fundamentally, this law was passed by congress in response to the
increasing concern by various traditional broadcast and media
corporations
that the limit license provided by copyrightis becoming
harder to protect in the digital environment. The trouble with the act
is that it has no respect for the constitutional balance between the
rights of holders of copyright licenses and the rights of
the public. The rights of free speech and property, which are
constitutional guaranteed to all individuals, have been made secondary
to the protection of the privilege of copyright, which is a limited
license granted to a individuals as congress sees fit for the purposes
of encouraging practical sciences. In fact, this point is made clear in
the legislative history of the DMCA as Congress as claimed the
constitutionality of the DMCA under COngresses empowerment under the
commerce cause, not the copyright clause. The trouble is that Congress
has used it's powers under one clause of the Constitution to eliminate
the publics rights under the Bill of Rights.
While the DMCA is Constitutionally questionable, it is morally repugnant
since it reduces the publics ability to participate in commerce and
public life.
Both individual free speech and individual property rights, as
guaranteed under the "Fair Use" doctrine, have been absolved by the DMCA
to consumers of information. And, of course, we are all information
consumers.
both free speech
and property of people who consume information. And of course we are
all consumers of information.
As Law Professor Yochai Benkler of NYU, an expert of Inforamation Law,
was quoted as saying, "If the judge finds for the plaintiff (in a case
involving the DMCA in NY), and the decision isn't knocked down on
appeal
it will create an environment that's closed like nothing we've ever
seen
before....Say you want to criticize the liberal leanings of Hollywood,
or criticize the sexist movie of this or that, You need to be able to
quote little pieces of the movie. You can do that under the copyright
law, because that's fair use, but using DVDs lawfully as the [film
association] reads the law, you can't do that. This really extinguishes
user privilege to an unprecedented degree."
(For more information see
The DMCA, as it is currently written and interpreted by the Federal
District Court of NY, under Judge Lewis Kaplan, (See the transcript at
http://www.2600.org/news/2000/0121-files/0121-tra
interpreted so strictly as to undermine the protections that were
written into it for protecting reverse engineering and fair use.
The law states that if a copyrighted material is available in digital
format (and what is not going to be available in digital format in the
future), that an electronic access device can be used to regulate
access
to that material in order to prevent piracy of the material.
The trouble with the law is largely 3 fold:
A - The law tramples on fair use and property rights.
B - The law is stifling innovation.
C - The Law is stifling free speech and is a direct threat to the kind
of discourse necessary for a free society.
In the first case, up until now, the Supreme Court has drawn a line
between the limited rights of a copyright holder to material, and the
protections of speech and property of owners of the actual media in
which material is publish on. For example, an owner of a record is
allowed to copy music to cassette tape for personal use. The owner of
a
book has the right to quote parts of the book, as I did here, even to
photocopy it for a personal archive or a report. The DMCA prevents
these activities when the printed text or the audio track is on a DMCA
protected digital format. As an example, in the case of the new DVD
media, the purchase of the DVD does not give the owner of the disk the
right to use it as they see fit. For example, they may only be
allowed to view the disk on a computer running Microsoft Windows, or a
computer using a specifically permitted software or other authorized
device.
This arrangement places a choke hold on what information can
and can not be viewed and removes freedom of choice and fair use. You
can not copy any segment of the information, anotate it, or print it
out. As things are currently, for example, a standard American DVD can
not legally be seen on the Linux Operating
System, the second largest operating system in current use in the
US. In response to not being able to view DVD's on Linux, Linux
developers created a program to access the DVD for viewing.
The developers posted the program on the internet. In response, the
Movie
industry brought suit in NY and in California. Judge Kaplan in NY has
said in his ruling that EVEN UNDER THE CONDITION that the program was
developed for use under Linux, and was protected under the reverse
engineering clause of the DMCA, that this would not protect the
developer of the program from arrest, or the web masters who post the
program on the internet from prosecution under the DMCA.
As it is, the developer is a 16 year old boy and both the boy and his
father were arrested in Norway, where they live. If he lived in
America, the boy would be considered a felon under the DMCA.
In the second case, if Judge Kaplan's ruling is to stand, and if
congress
does not strengthen the rights of developers to reverse engineer DMCA
hardware and software for inter-operability with new hardware and
software, then the impact on the US economy will be devastating. The
Linux operating system, for example, was created by a graduate student
who had an open platform in the IBM Personal Computer clone. Without
the ability to have this open platform, the Linux operating system, in
addition to nearly every other internet based piece of software, could
never have come into existence. The DMCA is a dagger at the heart of
Linux, and other new technologies like it, and to the internet itself.
If any part of the PC which is copyrighted (which is almost the entire
platform), the DMCA today would prevent the exploration of the hardware
and the firmware, and more to the point, would, with new technology
make
it
illegal just to access the computers insides without
pre-authorization by the copyright holders of the technology.
In short, under today's legal system, thanks to the DMCA, the internet
itself, which is largely driving today's economy, would never have come
into existence because the protocols which run the networking would be
protected and closed through means of DMCA devices.
In the third case, the DMCA is stifling free speech today, and will
have
an increasingly devastating effect on free speech in the future. The
news
outlet at http://slashdot.org has received notice from Microsoft Corp.
to
remove information posted on the web site in discussing Microsoft
business
practices, because they claim, not that the information itself
was copyrighted, but because it was protected under the DMCA. The
copyright itself would not have given Microsoft protection because the
material was being discussed in the context of a of a conversation of
it's unfair business practices. So they needed to invoke the DMCA.
Microsoft is bypassing the fair use doctrine which protects individuals
and news media by invoking the DMCA. (see
http://nylug.org/list-archives/NYLUG-TALK/2000-05
copy of the Letter sent by Microsoft to the publisher of slashdot)
This threat is larger than the recent spat between Time-Warner and
Disney over channel seven/WABC. In that case, the NY
Times has ardently come out in support of protecting the freedom of
speech
by the press. In this case, there would no longer BE ANY PRESS except
for
news disseminated through approved channels under DMCA protection. Both
creators and consumers of information would be censored through the
control of access to the public.
Barring any potential perceived monetary risk which media companies
think up, and especially in light of the fact that no evidence exists
that digital media has cost companies a single penny from copyright
infringement,
I must ask that the Congressmen take the lead in protecting individual
property and fair use rights, freedom to innovate and share in our
prosperity, and freedom of speech. This is the trinity of a great
and free society. Congress is empowered to protect and enhance these
activities. But Congress has stumbled because it seems to lack a real
understanding of the issues, and how technology works.
I want you to lobby and to present a bill to repeal the DMCA, or at
least, pass an amendment reaffirming the rights of every individual, in
relationship to copyrighted and exchanged information, to their
historical guarantees which have, until now, served this great nation
so
well.
________________________________
Other Sourses of Information:
http://www.nytimes.com/library/opinion/safire/050
http://www.villagevoice.com/issues/0018/howe.shtm
http://slashdot.org
Must Read-->http://noframes.linuxjournal.com/articles/
--
Ruben I Safir
ruben@sruben.dental.nyu.edu
ruben@wynn.noSppam.com
Perl Notes:
http://www.wynn.com/jewish/perl_course
http://www.brooklynonline.com
Manager of Intranet Development NYU College of Dentistry
Resume: http://www.wynn.com/jewish/resume.html
After spending a good part of 3 days reviewing the Tapes of the east
,etc
coast hearings on the DMCA, I think that a number of problems can be
outlined in the attempt to hurdle fair use of copyrighted materials
for Open Source development, and in the rest of the world.
First of all, being there and at these sort of hearings is very
important. The Library Associations had presented a dozen
or so testimonies. As a result, through the testimony that the libraries gave, they shaped the framework and the context of the hearings that for the rest of the testimonies.
Fortunately, Open Source and Libraries largely dovetail their needsin terms of copyright. But there exists important differences between
theneeds of Libraries and Open Source developers. Concessions that Libraries obtain, may well not be extended to the public at large. We need to also bring this same level of lobbying to the Government if we want our individual rights to survive, let alone Linux or FreeBSD.
Secondly, the largest problem I see is in the definition of words. Repeatedly, proponents of access control talked about the rights of
property owners, and described copyright holders as property right owners, and such were expecting certain rights. They then went on to describe "Fair Use", on the other hand, as a doctrine and
privilege.
This axiom was never sufficiently challenged, and is of course, essentially wrong.
Copyright is indeed the privilege and Congress can remove all copyright tomorrow if they so desired. Fair Use, on the other hand, is the constitutional right of individuals, and nothing can be done to remove "Fair Use".
For example, your rights can not be given away by contract. I would not be able to sign an agreement preventing my freedom of speech or assigning it to another. Similarly, I can not give away my right to property, to have due process,
etc. These are guarantees. But a copyright can be sold - straight out.
Clearly, the Fair Use doctrine was created by the courts to define the property rights of individuals over material aquired under copyright. Therefore, "Fair Use" is not a privilege at all, nor can I agree to give it away in a click through license.
There have been comparisons made that a person using a legally acquired work and
hacking through access controls to use the material in a way protected under the Fair Use doctrine is the same as a person breaking and entering into a home/business to make Fair Use of a book in a store. Nevertheless, this is clearly invalid at the core premise. In fact, the limitation of Fair Use of a
material legally purchased by an individual is comparable to Time Warner breaking into my home and stealing my VCR because I lent a my copy of the Titanic to my Grandmother.
Secondly, the panel at the copyright office really does not take the Open Source community seriously. They find us an amusing group of little consequence.
Thirdly, many people purjured themselves at the hearings. This is especially true with
Time Warner who said that there is a legal license of Linux to play DVD's currently. Yet in fact, Creative Labs told me that the Movie Industry
threatened them if they released another open soured driver for their current DVD player.
A fourth point is that the DMCA definitely created a dangerous precedent, which
Congress was completely aware of, and said so in the Legislative History
of the DMCA. It is repeated in the text. When Congress could not resolve the constitutional issue of Fair Use with Access control they passed the issue to the Copyright Office. In order to get the statute passed, they left the Fair Use problem to the Copyright Office to solve. And yet many people told the Office they had no right to address that issue, which was clearly intentionally left to them in the first place because Congress could not resolve the problem itself.
So a great Constitutional issue has been passed by Congress to the Copyright Office. I'm not sure if Congress actually has the power to do this. But the thrust of the Copyright Office is to not do anything to destroy the law totally of its bite. The problem is that Access Control is incompatible with the Rights of Property and free Speech granted to individuals under the Constitution (what is generally being called Fair
Use doctrine) One completely destroys the other as a practicle matter. This puts the Copyright office in a position of making rules to prevent
access control from destroying the Bill of Rights and clauses within the
Constitution which protect
individuals from Government or private interests. I do not think the copyright office can do this even if it wanted to. And therefor the entire law might be unconstitutional. Either way, the Office needs to be urged to make sweeping classes of material exempt from the DMCA because to do so otherwise would be unconstitutional.
Fifth - a major weak point in many of the arguments was a lack of examples of harm by the DMCA. Well, the DVD control is one, the destruction of Audio Digital Tape another (prior to the DMCA), the Steven King e-book is a third, being unable to scan past advertisments is a fourth etc, etc
We need the people in California to be prepared with cases of this, and the Comments to Testimony coming up after the hearing should detail these abuses. Bring a DVD if you need to!
The argument was repeatedly made by media industry that they will guarantee us certain rights because it is in their interest to do so and can therefore
be trusted to protect Americans rights to property and speech. This argument must be attacked vigorously.
First, Industry does not give us "Fair Use" rights - the Constitution guarantees it to the public. Secondly, the concessions they are making,
they have no real control of. For example, they claimed to allow people
to RIP CDs for personal use. This is something they clearly have no control over and had tried to stop when they killed the Digital Audio
Tape format. Also, as made clear by the WABC cable spat, they have proven that they can not be trusted to protect the interests of the
public. In fact, if they did so, they would be in conflict with their responsibility to stock holders. By definition, businesses serve their
own purposes. In addition, Congress has granted the responsibilty of protecting of our rights to a private enterprise, which if not unconstitutional, is still morally corrupt.
Secondly, Industry has a track record of impeding the rights of the Public in matters of Fair Use. Valentiani, who represented the Movie industry flat out compared access of a video media to buying a ticket at
a movie theater. He directly linked access of a legally acquired copy of material to the fee for view model of seeing a performance at a theater. Congress went to great pains to prevent this in the DMCA, but without Fair Use protections, industry has said on record that it wants a pay per view license and the end of Fair Use.