Letter to my Senator
on
SSSCA Hearing
·
· Score: 2, Informative
Dear Senator Feinstein,
I am a constituent writing to you regarding the Senate Commerce, Science and Transportation Committee's hearings on 2/28/2002 regarding intellectual property protection requirements for computers and digital devices, and the draft Security Systems Standards and Certification Act (SSSCA) by Senator Hollings.
Few would argue against Hollywood's goal of preventing the distribution of reproduced copies of copyright-protected content. However adopting the proposal in the draft SSSCA would be terribly destructive because in pursuit of this goal it both forecloses digital viewing of independently created content, and takes all reasonable control away from the content purchaser. It is not my place to suggest possible alternate means of achieving their goal, however I would like to point out some of the problems in the proposal, in hopes that you will come to agree with me that significant further study is needed before the concept of any Federally mandated measure could begin to be entertained.
To understand the problems with draft SSSCA, some background facts need to be appreciated.
First, it is important to understand that the Internet to date has been a medium of free exchange of expression. Its technical architecture is fundamentally based on the assumption that getting information from sender to recipient is the goal. This assumption is so deeply-seated that if communication is ever blocked, the Internet itself seeks out another route. In this regard, the Internet is like an error-resistant Post Office, faithfully delivering messages with admirable determination. Together with nearly universal access, it is this highly democratic, forum-like characteristic that has made the technology, culture, and, yes, the business boom of the Internet possible -- marking one of America's great modern achievements.
Second, as computers have spread throughout society, the creativity of private US citizens has increasingly transpired not on paper or canvas or in the concert hall, but on the computer. People are making media, from children at school, through to neighborhood rock bands recording albums at home, to artists creating digital paintings and collage works. Digital photography, for example, is a creative medium intimately linked to the computer in the home.
Third, in the world of computers and the Internet, every creation takes the same essential form -- a file (sometimes called a 'stream') is a sequence of 1's and 0's. All digital content, whether music recording, love sonnet, or home movie, is stored on a hard drive and transmitted over the Internet as a file. Due to the nature of computers, there is no other possibility.
Let us also quickly review the essential legal nature of copyright:
1. Not all content is protected by copyright.
2. All copyrighted content may be legally used in numerous ways that its publisher would prefer not to occur.
3. Copyright is temporary, not permanent, per the US Constitution.
4. After copyright expires, works are intended to pass into the public domain for use by all citizens.
5. Because of 3, all content eventually becomes unprotected by copyright.
Now then. The draft SSSCA would change all computers -- indeed, all digital devices -- to reject all digital content that is not stamped with information telling how the publisher says it can be used. This turns the free transmission principle on its head, utterly. Rather than a medium of free communication, it would make the Internet and all the computers attached to it a place where only certain, specifically authorized, pieces of content could be found.
This is where a world of complicated problems enter the picture, and is why the draft SSSCA cannot be accepted.
There are more problems than I can list with the draft SSSCA, so let me concentrate on a 'Top 10' list of the worst ones that I can see:
1. It would end the Internet's value as a public commons for speech, since only 'authorized' speech bearing the stamp could take place there. The importance of this factor cannot be overstated, and should make the draft SSSCA an affront to any guardian of the public sphere, not to mention vulnerable to Constitutional challenge.
2. No computer (or device) would be able to play any piece of digital media lacking the stamp. This has many serious implications, the most obvious of which is that no computer or device would be able to play such common locally-created items as children's movies or animations created in school, home photographs, and so on. Only 'brand-name' entertainment would be possible. While this is a laughable scenario, close reading of the draft SSSCA would appear to require it.
3. In the proposed scheme, any hobby or volunteer art, or promotional content, created with the intention of being shared freely (e.g. not stamped) would be excluded. For example, music directly published for sharing by the artists who created it, unaffiliated with any major publisher. This is not only undemocratic and a governmental interference with free speech, it also raises serious issues of government-sanctioned market protectionism by keeping independent content away from the digital audience.
4. In the proposed scheme, the stamp becomes equivalent to permission to publish expression to the American public. This is fundamentally against the free speech principle. Speech must not require permission.
5. Requiring a stamp sounds suspicious enough, but much more so when we ask: Who issues the stamp? Will there be a cost? What should the cost be? Will all applicants be treated fairly? Since the stamp is prerequisite to -any- display on -any- computer or device, these questions are crucial. Can an entertainment industry entity be trusted with this gatekeeper duty? Is it wise or appropriate to have such a universal gatekeeper at all? How can having a designated universal gatekeeper be consistent with free speech?
6. Currently any challenges regarding the originality of a work are brought to civil court under the Copyright Act, after publication of the work. Under the SSSCA scheme, stamp denials could occur before publication. So if stamps were to be issued by the Government, there would be Constitutional questions of governmental prior restraint. Troubling questions, too, since the question of originality is frequently ambiguous, making the process vulnerable to charges of censorship under color of authority.
7. No computer (or device) would be able to allow the owner unprotected access to any piece of digital media containing the DRM stamp. This has many serious implications, including preventing wholly reasonable and otherwise legally sanctioned 'fair uses' of the content by the customer. For example, space-shifting (making an MP3 file from an album for listening while exercising) or format-shifting (copying onto a laptop computer for listening during a business trip) or making a back-up copy in case the purchased copy is ever damaged.
8. The proposed scope of 'All interactive digital devices' is indefensibly broad, not to mention the fact that it indicates a troublingly naive picture of the digital world. Despite having no way to receive files, typewriters and thermometers are digital and interactive and so could be required to implement useless and expensive content management technology. Similarly, there are any number of interactive digital devices and components not intended as media players whose technical functionality and/or cost would simply be made unfeasible by attempting to add rights-management features. So a certain quality of 'magical thinking' about how technology works and what is in fact possible is in evidence. We can be certain that the SSSCA was not drafted with the involvement of anyone who ever engineered any digital device, and this alone is reason for much further study.
9. The required access control mechanism would survive the copyright's expiration, therefore none of this content will be able to pass into the public domain. This allows publishers to cheat the public out of the Constitutional 'copyright bargain' by hoarding the work after having already harvested the financial benefits of selling it.
10. The draft SSSCA has a bad synergy with the Digital Millennium Copyright Act. The DMCA criminalizes the existence and possession of any measure allowing circumvention of access control technologies, irrespective of copyright validity or infringing intent. This cements two of the above SSSCA problems: content that will never pass into the public domain, and content that cannot be reasonably re-used by the legitimate customer. Also, like the DMCA, the penalties are unnecessarily draconian ($500,000/5 years imprisonment), are redundant to the penalties available under the Copyright Act for intentional infringement, do not require an intent to infringe. The SSSCA penalties would also appear to be wholly redundant to the DMCA.
Given all the serious problems listed above, it is extremely distressing that the Committee has entertained the draft SSSCA at all. Please, I would ask you to consider the matter of the SSSCA carefully, and I would urge you to call for further study and a more reasonable, less destructive proposal before further discussion of any possible legislation in this area.
I manage Technical Publications for small platform-agnostic music/audio SW technology company known for a browesr plug-in, but also established in the mobile world. My group does all the documents that the outside world (licensees, end users) see describing our products and how to use them:
End User Guides for GUI music editor apps
API References for our technology licensees (incl. Overview, How To Use, Method References, techNotes, etc.)
Quasi-marketing stuff like data sheets/specs/books
All these document types (and more, actually) can be delivered in plain HTML, HTML with a JavaScript viewer system, PDF, and we can even go to film for old-fashioned printing. (You, as in 'on paper, from a printing press'?) The output not only looks great, and conforms to the company's overall style/graphic identuty, it even looks consistent in all the output formats.
How do we do this? We build all our documents in FrameMaker, which does all the output except the HTML, which is done in the companion product WebWorks Publisher (WWP) from Quadralay. (Yes, I'm a Dmitry booster, and I do suffer from Adobe-user guilt in this regard, however my feelings are deeply mixed since as a denizen of the tech pubs ghetto I find FrameMaker is a solace to my otherwise tool-impoverished people...)
But it's not just the products you use -- your practices matter at least as much. Just as in good program design, good document design is matter of deciding on a set of elements and then using just the elements -- no jerry-rigging, no kludges -- to build the whole. With FrameMaker, the elements come from a template containing Paragraph and Character formats. In WWP you create a corresponding template with the HTML tags you want for the corresponding Para and Char formats, designed to reproduce (perhaps with the help of CSS style sheets) the look of the FrameMaker formats. Once you take into account all the included illustration and book part files, every document is a lot like a SW project with lots of hieracrchically dependent parts that all need to synchronize. Think of the output formats as 'build targets. ' Just like with coding, if you follow your own rules it all works out quite nicely.
Is this a lot of work to set up the first time? Yes indeed, but this is how the big kids do it.
Could a coder use FrameMaker to do documentation? Possibly, if it were the right person, though this would be more likely to work well if a tech pubs person were to set the templates up for the coder. However with FrameMaker at $800 a seat this approach is probably too spendy for most sizeable shops. This system works better with a smaller number of dedicated tech pubs people serving a larger number of coders.
Is there an easier way to automatically produce the same level of quality across a similar range of output formats? Not that you can achieve without tripling your tech pubs staff and tools budget.
Can you automatically turn a.h file into an API Reference? Depends how good you are with Perl. I have a tool of my own that turns a.h file into a formatted, cross-referenced, TOC'd FrameMaker file, but it doesn't pull source code comments into the FrameMaker document. Not because it couldn't -- it could, if that's what you want to do -- but because frankly in my experience most of that stuff needs to be so totally restructuired and rewritten anyway that it's almost always easier to just read the function signature and start writing. (With the source open in a separate editor window, of course.)
(Sometimes we rewrite source code comments too, but since we aren't publishing the source code in multiple formats, that just happens in BBEdit or CodeWarrior.)
Which brings me to a secondary comment on the article title "Developers: Writing Documentation" -- While I agree that all developers should certainly document their work, I wouldn't necessarily agree that what they write should automatically be used as the product documentation that the outside world is given. Because the talent of being able to communicate about technology is not the same talent as being able to create technology. It seems a comparatively small fraction of people get to have both talents. (And of those, a comparatively small fraction will admit they can do the one they enjoy less!)
It seems that everyone believe that "fair use" is a right. In fact, it is not a right but it's really a exclusion from prosecution. What this means is that if you use legally licenced copyrighted material (music, book, software, etc..) in a "fair use" manner, you cannot be prosecuted for violation of copyright. This does not mean that if you purchase a CD, you have the inalienable right to make a backup copy. There is a subtle but distinct difference.
That depends, as a well-known personage once said, infamously, on what the definition of the word 'is' is. Kindly look to the meaning behind the form.
It's true that the fair use statute currently is in the form of an affirmative defense that may, depending on the circumstances, be available to some defendents in civil copyright infringement lawsuits. (See 17 USC section 107, 1988 ed. and Supp. IV.). But that's just the form of the law, not its essence.
The reason for the law (see legislative history, read Jessica Litman) was to codify a thread of case law decisions that had clarified the bounds of permissible uses of otherwise copyright-protected works. These decisions were necessary because the laws defining protection for copyrighted works were vague on the point, as was the clause in the Constitution that authorized the very existence of Federal copyright law. And the essence of these decisions and Section 107 was -- before the onset of technically and commercially feasible copy protection -- that the copyrightholder's rights to control copyright-protected content ended with the exclusive rights enumerated in copyright law (make and distribute multiple copies; for performable works, public performance, etc.).
-Anything- else a citizen (''user," if you like) could figure out how to do with the work that didn't run afoul of the particular rights reserved to the copyrightholder was considered a 'fair' use of the work. So where the law was silent, the presumption was in favor of the citizen. And there was a de facto guarantee that when the copyright term expired, the work would enter the public domain where it could be used by anyone for any purpose, because it could be accessed by anyone and the copyrightholder's exclusive rights would no longer exist. A sensible system that worked to benefit both society as a whole and those in the business of publishing new works.
But now two things have happened to foul all that up: the copyright term extension statutes (producing de facto permanent copyright protection), and the onset of technical access protection in for-sale copies of works, synergized by the DMCA statute (making the content inaccessible after the copyright term expires, preventing use).
The current fair use law bluelarva cites evolved in reaction to the old regime, not the new one, and the active controversy (thank you, EFF!) as to the legitimacy of the new regime is based in large measure on the fact that the abstract principle of fair use -- which I think can clearly be seen as a package of citizens' (or consumers') rights counterbalancing the rights of copyright holders -- has been left out. And that means the tower of the new regime is built on
sand, Constitutionally speaking (certain bad court decisions to the contrary).
Note that bluelarva's interpretation of fair use would seem to make the same assumption as the new regime, namely that where the law is silent, it is the rights of the copyrightholder -- not the citizen (==the public at large) that should be favored. * s i g h *
So... I think maybe the playing field's still a little too unsettled to declare definitively that fair use is not a right. Time may yet show us otherwise.
Senator Feinstein sent me a form response (see below) to my DMCA letter, and I find it unsatisfactory in the extreme. So I sat down to write her back, and thought some of you might find the result worth reading.
Dear Senator Feinstein,
First, thank you for considering the Digital Millennium Copyright Act issue important enough to develop a response for it.
When I first wrote you, I implored you to become active in seeking appropriate adjustments to address the worst excesses of the DMCA. I am sorry to say that I have been hoping for a more substantial reply than the one I received.
Yes, everyone agrees that a digital economy requires legal protections. But in any effort there is always the question of how much is enough, how much is too much, and what is lost by doing too much. News developments since I first wrote you make it more and more clear every day that the DMCA went too far, and, now that criminal enforcement has begun, that it is beginning to trounce the legitimate activity and normal relations of the technology ecosystem, is chilling public speech, and is distorting markets. Russian grad student Dmitry Sklyarov is facing 25 years in a US prison, plus a $2.5 million fine for writing a computer program in another country. I'm sure you're aware that today the Russian government issued a warning to Russian computer technologists that they should not travel to the US because they risk imprisonment! Encryption researchers have begun to resort to anonymity when publishing their results, even in other countries. The situation is quite drastic, global in scope, and I must say requires closer examination and more action than your reply would indicate you plan to take.
The constitutional copyright mandate is for Congress to provide laws to ensure adequate compensation for creators to bring new works forth -- not to guarantee every possible compensation for every imaginable use of every copy of every work. You analogize intellectual property rights to physical property rights, but any copyright scholar will tell you that intellectual property rights have never entailed the same kind of rights as physical property rights, and for good public policy reasons (see for example the writings of Jefferson). I should be able to listen to the CDs I buy on my computer and in my car without paying again. I should be able to watch a DVD I buy in England when I get home without paying again. I should be able to watch a DVD I buy on my computer, even if it's a Linux computer without a CSS player. I should be able to back up my e-books without having to pay again. When the DMCA went too far, I lost those rights. I also lost my ability to protect myself against the objectionable practices of the copyright industries, whose interests are, after all, different from mine as a consumer. If I were to try to regain my rights, simply by using my ordinary computer industry skills, I could go to prison for 5 years per each copied item. This is not piracy. This is not bootlegging. This is not mass duplication. Let those stay illegal. This is basic consumer rights.
To my mind, the most egregious aspect of the DMCA is that by criminalizing the circumvention of access control technologies even for media that the consumer has bought and paid for (and no matter how flimsy the protection), the Act requires the American people's own government to act against them, as enforcer of the copyright industries' purely self-serving business initiative to get them to pay for every movie, program, song, and book over and over and over again -- ultimately, to pay for every single access. Imagine your home library with a coin-operated lock on every book. That is our future if the DMCA is not amended.
So I respectfully ask you again, at a minimum, to clarify your position as to whether you will help to adjust the areas where the DMCA is clearly excessive, or whether you will oppose such efforts. I would like to think that you can appreciate the gravity of the situation, and the depth of the discontent of your technically-minded constituents, and will act in the people's interest.
In considering this question, please don't accept at face value the copyright industry's self-serving assertion that only perfect protection will prevent economic collapse in movies, music, publishing, and software. In the DMCA, America traded away the rights of consumers and the free speech rights of technologists in order to achieve a 'perfect protection' scenario by inventing draconian criminal penalties for otherwise ordinary and accepted activities. But cryptographers know very well that perfect protection is impossible, and always a red herring. 'Pretty Good Protection' -- meaning relying on ordinary civil copyright protection, and reserving draconian criminal penalties only for those who mass-distribute copies that could replace sales -- is good enough to keep the copyright industries in business, and just as profitable as they have been, without requiring us to trounce consumer rights and throw our brightest programmers and researchers into prison.
I know that the studio heads in Hollywood are your constituents, but please keep in mind that you also represent the young technologists who work in Silicon Valley. Please, reconsider adjusting the anti-circumvention aspects of the DMCA.
Sincerely,
--- Snogwozzle
Bay Area, California
Dear Mr. Snogwozzle:
Thank you for writing to me about the Digital Millennium
Copyright Act.
I have always believed that the protection of intellectual
property rights is as important as the protection of any other
property right. Moreover, the protection of intellectual property is
vital to a flourishing economy -- particularly in California.
America's music, movie, and software industries are second to
none, and we export far more intellectual property than we import.
This is good for employment, and good for consumers.
Without strong copyright protections, the incentive to
innovate would be diminished. In fact, this issue was so important
to the Founding Fathers that the ability of Congress to protect
copyrights is actually written into our Constitution itself.
The Digital Millennium Copyright Act was Congress'
attempt to address the issue of copyright protection in a new,
digital age. As new technologies have developed over the past few
years, it has become increasingly difficult to protect intellectual
property from illegal copying and distribution. It is a delicate
balance, to be sure -- nobody wants to restrict the development of
new and exciting technologies, but we must work to prevent the
creation of perfect, digital copies of copyrighted works which can
be illegally distributed throughout the world.
Please be assured that I understand your concerns, and I
will keep your views in mind.
If you have other questions or comments, please do not
hesitate to write to me again, or contact my Washington, D.C. staff
at (202) 224-3841.
Copying copyrighted information is not stealing.... Copyright infringement is a more accurate term, though far less emotive.
If I see this mistake repeated even once more, I'll pop.
Copying copyrighted information is not always copyright infringement. Only illegally copying copyrighted information is copyright infringement.
Whatever one thinks the proper scope of fair use should be, room for fair use is always there, and fair use exceptions always limit the enforceability of the copyrightholder's monopoly on copy-making -- so that (under the copyright fair use statues, albeit not under the DMCA) some forms of copying not approved by the copyright holder can always be legal.
I hear all this crap about protecting the little guy, well that's fine and good. But the little guys interests needs to be balanced against the interests of society at large (and the legal claims of, what is in economic terms, the real majority).
Ignoring Napster for the moment: Fair use rights belong to US citizens, whereas the copyrights to which you refer belong to corporations. US citizens interested in time-shifting, space-shifting, and sampling that music outnumber the corporations distributing it by a ratio of millions to one. Your term 'society at large' means by definition the numeric majority, so you can't be both in favor of their interests and against the interests of 'the little guy' at the same time -- oxymoron.
The (often rather extreme) profitability of those few corporations does not in any sense give their interests the legitimacy implied by your term 'real majority'. In a democracy, every citizen's interests deserves the same consideration. If we were to follow your line of reasonsing then the more money you have, the more votes you'd get. That's the best definition of 'corruption' I've ever seen.
Good post, but it misses my point. I think there's no question distributing AEBR in the US is in violation of the DMCA anticircumvention section (which is exactly why DMCA is a bad law urgently needing adjustment). The point is, to use that law against Dmitry, the DOJ have to show that Dmitry actually did what the law prohibits. Since Dmitry did not AFAIK actually distribute AEBR in the US, this is impossible.
Dmitry is listed as _the_ copyright holder for the application. This means he has to approve of it's distribution. His company did market the software in the US at one point. Therefore, Dmitry implicitly approved of distributing a "circumvention device" (AEBPR) in the US, where is an illegal product.
There are some questionable assumptions in there that I think many observers are making (e.g. if the copyright text says Dmitry, then Dmitry must have controlled distribution, and must have had a deal to make money from the sales, and that's the same thing as distributing the software -- all dubious). Let's deconstruct that 'His company' part. Elcomsoft is Dmitry's employer, not an agent or instrument doing his bidding. Of course Dmitry knew AEBR was being sold in the US, and evidently did not prevent that (who knows, maybe the company even did it against his wishes), but in any event Dmitry was not the one selling AEBR in the US, Elcomsoft was. Despite what parents tell children, 'implicitly approving' of an illegal act is not the same as actually doing the thing. (IANAL, but am led to believe that if DOJ wanted to prosecute Dmitry for that, it would require a different cause of action, not a DMA charge, along the lines of 'conspiracy' or 'aiding and abetting' -- is that even available on a foreign national?) Dmitry, again, is a separate legal entity from Elcomsoft. Everything depends on the extent to which the DOJ can prove, as a matter of law, that Dmitry the foreign individual has criminal liability for the deeds of Elcomsoft the foreign corporation.
The complaint completely glosses over the difference betwen Dmitry and Elcomsoft, and doesn't assert that Dmitry himself has distributed AEBR in the US at all.
So my original point holds: If US distribution of AEBR is an act of Elcomsoft, and Dmitry as an employee has no criminal liability for Elcomsoft's actions, then the prosecution is still fatally flawed, Dmitry goes free, and there is no test case. Copyright notices notwithstanding.
Here's a point I haven't seen examined yet. IANAL, but I don't see how Dmitry can be charged with violating DMCA anti-circumvention (DMCA-AC hereinafter). Here's why:
Premise: As I understand DMCA-AC, what's forbidden is 'creation and trafficking' in anticircumvention tools, with geographic scope limited to the US.
Analysis: While Dmitry created (or created a lot of) Advanced eBook Processor (AEBPR), he created it in Russia, not the US; and he has not personally 'trafficked' in it within the US - there is no DMCA cause of action against Dmitry. It was Elcomsoft that sold AEBR in the US, which -is- actionable under DMCA-AC. Despite employment by Elcomsoft, Dmitry the person is distinct from Elcomsoft the corporation and not criminally liable for the deeds of Elcomsoft.
Conclusion: For the prosecution to be successful, the US Attorney must show either:
a) that Dmitry individually has 'trafficked' in AEBPR, separately from Elcomsoft's sales of AEBR in the US, or
b) that Dmitry as an employee of Elcomsoft has criminal liability for Elcomsoft's actions in 'trafficking' in AEBR.
I don't see how either a) or b) can be proven, as there are no signs that Dmitry has personally distributed AEBR in the US, and no signs that Dmitry is an owner or officer of Elcomsoft -- just an ordinary employee. (If I were Dmitry's boss, or an Elcomsoft owner, I wouldn't be hanging around the US, though.)
If the above is factually correct, then the prosecution's only hope is to find relevant US law, precedent, or theories under which an ordinary employee of a corporation can be held to have criminal liability for the actions of the corporation. More specifically, the precedent or theory would have to pertain to the situation in which both the corporation and the employee are foreign nationals.
If there is no such law, precedent, or theory, the case ultimately fails, and therefore the US Attorney would likely decline to indict.
If the DOJ is looking for a way to make this case go away, either to avoid embarrassment or to avoid taking to trial a case with the potential to nullify DMCA-AC, this would do it for them.
In any event, there may not be any DMCA-AC test case here -- the charge may be flawed, and if so it should not have been brought in the first place, and will be dismissed.
Slashdot Mirror
Dear Senator Feinstein,
I am a constituent writing to you regarding the Senate Commerce, Science and Transportation Committee's hearings on 2/28/2002 regarding intellectual property protection requirements for computers and digital devices, and the draft Security Systems Standards and Certification Act (SSSCA) by Senator Hollings.
Few would argue against Hollywood's goal of preventing the distribution of reproduced copies of copyright-protected content. However adopting the proposal in the draft SSSCA would be terribly destructive because in pursuit of this goal it both forecloses digital viewing of independently created content, and takes all reasonable control away from the content purchaser. It is not my place to suggest possible alternate means of achieving their goal, however I would like to point out some of the problems in the proposal, in hopes that you will come to agree with me that significant further study is needed before the concept of any Federally mandated measure could begin to be entertained.
To understand the problems with draft SSSCA, some background facts need to be appreciated.
First, it is important to understand that the Internet to date has been a medium of free exchange of expression. Its technical architecture is fundamentally based on the assumption that getting information from sender to recipient is the goal. This assumption is so deeply-seated that if communication is ever blocked, the Internet itself seeks out another route. In this regard, the Internet is like an error-resistant Post Office, faithfully delivering messages with admirable determination. Together with nearly universal access, it is this highly democratic, forum-like characteristic that has made the technology, culture, and, yes, the business boom of the Internet possible -- marking one of America's great modern achievements.
Second, as computers have spread throughout society, the creativity of private US citizens has increasingly transpired not on paper or canvas or in the concert hall, but on the computer. People are making media, from children at school, through to neighborhood rock bands recording albums at home, to artists creating digital paintings and collage works. Digital photography, for example, is a creative medium intimately linked to the computer in the home.
Third, in the world of computers and the Internet, every creation takes the same essential form -- a file (sometimes called a 'stream') is a sequence of 1's and 0's. All digital content, whether music recording, love sonnet, or home movie, is stored on a hard drive and transmitted over the Internet as a file. Due to the nature of computers, there is no other possibility.
Let us also quickly review the essential legal nature of copyright:
1. Not all content is protected by copyright.
2. All copyrighted content may be legally used in numerous ways that its publisher would prefer not to occur.
3. Copyright is temporary, not permanent, per the US Constitution.
4. After copyright expires, works are intended to pass into the public domain for use by all citizens.
5. Because of 3, all content eventually becomes unprotected by copyright.
Now then. The draft SSSCA would change all computers -- indeed, all digital devices -- to reject all digital content that is not stamped with information telling how the publisher says it can be used. This turns the free transmission principle on its head, utterly. Rather than a medium of free communication, it would make the Internet and all the computers attached to it a place where only certain, specifically authorized, pieces of content could be found.
This is where a world of complicated problems enter the picture, and is why the draft SSSCA cannot be accepted.
There are more problems than I can list with the draft SSSCA, so let me concentrate on a 'Top 10' list of the worst ones that I can see:
1. It would end the Internet's value as a public commons for speech, since only 'authorized' speech bearing the stamp could take place there. The importance of this factor cannot be overstated, and should make the draft SSSCA an affront to any guardian of the public sphere, not to mention vulnerable to Constitutional challenge.
2. No computer (or device) would be able to play any piece of digital media lacking the stamp. This has many serious implications, the most obvious of which is that no computer or device would be able to play such common locally-created items as children's movies or animations created in school, home photographs, and so on. Only 'brand-name' entertainment would be possible. While this is a laughable scenario, close reading of the draft SSSCA would appear to require it.
3. In the proposed scheme, any hobby or volunteer art, or promotional content, created with the intention of being shared freely (e.g. not stamped) would be excluded. For example, music directly published for sharing by the artists who created it, unaffiliated with any major publisher. This is not only undemocratic and a governmental interference with free speech, it also raises serious issues of government-sanctioned market protectionism by keeping independent content away from the digital audience.
4. In the proposed scheme, the stamp becomes equivalent to permission to publish expression to the American public. This is fundamentally against the free speech principle. Speech must not require permission.
5. Requiring a stamp sounds suspicious enough, but much more so when we ask: Who issues the stamp? Will there be a cost? What should the cost be? Will all applicants be treated fairly? Since the stamp is prerequisite to -any- display on -any- computer or device, these questions are crucial. Can an entertainment industry entity be trusted with this gatekeeper duty? Is it wise or appropriate to have such a universal gatekeeper at all? How can having a designated universal gatekeeper be consistent with free speech?
6. Currently any challenges regarding the originality of a work are brought to civil court under the Copyright Act, after publication of the work. Under the SSSCA scheme, stamp denials could occur before publication. So if stamps were to be issued by the Government, there would be Constitutional questions of governmental prior restraint. Troubling questions, too, since the question of originality is frequently ambiguous, making the process vulnerable to charges of censorship under color of authority.
7. No computer (or device) would be able to allow the owner unprotected access to any piece of digital media containing the DRM stamp. This has many serious implications, including preventing wholly reasonable and otherwise legally sanctioned 'fair uses' of the content by the customer. For example, space-shifting (making an MP3 file from an album for listening while exercising) or format-shifting (copying onto a laptop computer for listening during a business trip) or making a back-up copy in case the purchased copy is ever damaged.
8. The proposed scope of 'All interactive digital devices' is indefensibly broad, not to mention the fact that it indicates a troublingly naive picture of the digital world. Despite having no way to receive files, typewriters and thermometers are digital and interactive and so could be required to implement useless and expensive content management technology. Similarly, there are any number of interactive digital devices and components not intended as media players whose technical functionality and/or cost would simply be made unfeasible by attempting to add rights-management features. So a certain quality of 'magical thinking' about how technology works and what is in fact possible is in evidence. We can be certain that the SSSCA was not drafted with the involvement of anyone who ever engineered any digital device, and this alone is reason for much further study.
9. The required access control mechanism would survive the copyright's expiration, therefore none of this content will be able to pass into the public domain. This allows publishers to cheat the public out of the Constitutional 'copyright bargain' by hoarding the work after having already harvested the financial benefits of selling it.
10. The draft SSSCA has a bad synergy with the Digital Millennium Copyright Act. The DMCA criminalizes the existence and possession of any measure allowing circumvention of access control technologies, irrespective of copyright validity or infringing intent. This cements two of the above SSSCA problems: content that will never pass into the public domain, and content that cannot be reasonably re-used by the legitimate customer. Also, like the DMCA, the penalties are unnecessarily draconian ($500,000/5 years imprisonment), are redundant to the penalties available under the Copyright Act for intentional infringement, do not require an intent to infringe. The SSSCA penalties would also appear to be wholly redundant to the DMCA.
Given all the serious problems listed above, it is extremely distressing that the Committee has entertained the draft SSSCA at all. Please, I would ask you to consider the matter of the SSSCA carefully, and I would urge you to call for further study and a more reasonable, less destructive proposal before further discussion of any possible legislation in this area.
Sincerely,
-- SnogwozzleI manage Technical Publications for small platform-agnostic music/audio SW technology company known for a browesr plug-in, but also established in the mobile world. My group does all the documents that the outside world (licensees, end users) see describing our products and how to use them:
All these document types (and more, actually) can be delivered in plain HTML, HTML with a JavaScript viewer system, PDF, and we can even go to film for old-fashioned printing. (You, as in 'on paper, from a printing press'?) The output not only looks great, and conforms to the company's overall style/graphic identuty, it even looks consistent in all the output formats.
How do we do this? We build all our documents in FrameMaker, which does all the output except the HTML, which is done in the companion product WebWorks Publisher (WWP) from Quadralay. (Yes, I'm a Dmitry booster, and I do suffer from Adobe-user guilt in this regard, however my feelings are deeply mixed since as a denizen of the tech pubs ghetto I find FrameMaker is a solace to my otherwise tool-impoverished people...)
But it's not just the products you use -- your practices matter at least as much. Just as in good program design, good document design is matter of deciding on a set of elements and then using just the elements -- no jerry-rigging, no kludges -- to build the whole. With FrameMaker, the elements come from a template containing Paragraph and Character formats. In WWP you create a corresponding template with the HTML tags you want for the corresponding Para and Char formats, designed to reproduce (perhaps with the help of CSS style sheets) the look of the FrameMaker formats. Once you take into account all the included illustration and book part files, every document is a lot like a SW project with lots of hieracrchically dependent parts that all need to synchronize. Think of the output formats as 'build targets. ' Just like with coding, if you follow your own rules it all works out quite nicely.
Is this a lot of work to set up the first time? Yes indeed, but this is how the big kids do it.
Could a coder use FrameMaker to do documentation? Possibly, if it were the right person, though this would be more likely to work well if a tech pubs person were to set the templates up for the coder. However with FrameMaker at $800 a seat this approach is probably too spendy for most sizeable shops. This system works better with a smaller number of dedicated tech pubs people serving a larger number of coders.
Is there an easier way to automatically produce the same level of quality across a similar range of output formats? Not that you can achieve without tripling your tech pubs staff and tools budget.
Can you automatically turn a .h file into an API Reference? Depends how good you are with Perl. I have a tool of my own that turns a .h file into a formatted, cross-referenced, TOC'd FrameMaker file, but it doesn't pull source code comments into the FrameMaker document. Not because it couldn't -- it could, if that's what you want to do -- but because frankly in my experience most of that stuff needs to be so totally restructuired and rewritten anyway that it's almost always easier to just read the function signature and start writing. (With the source open in a separate editor window, of course.)
(Sometimes we rewrite source code comments too, but since we aren't publishing the source code in multiple formats, that just happens in BBEdit or CodeWarrior.)
Which brings me to a secondary comment on the article title "Developers: Writing Documentation" -- While I agree that all developers should certainly document their work, I wouldn't necessarily agree that what they write should automatically be used as the product documentation that the outside world is given. Because the talent of being able to communicate about technology is not the same talent as being able to create technology. It seems a comparatively small fraction of people get to have both talents. (And of those, a comparatively small fraction will admit they can do the one they enjoy less!)
That depends, as a well-known personage once said, infamously, on what the definition of the word 'is' is. Kindly look to the meaning behind the form.
It's true that the fair use statute currently is in the form of an affirmative defense that may, depending on the circumstances, be available to some defendents in civil copyright infringement lawsuits. (See 17 USC section 107, 1988 ed. and Supp. IV.). But that's just the form of the law, not its essence.
The reason for the law (see legislative history, read Jessica Litman) was to codify a thread of case law decisions that had clarified the bounds of permissible uses of otherwise copyright-protected works. These decisions were necessary because the laws defining protection for copyrighted works were vague on the point, as was the clause in the Constitution that authorized the very existence of Federal copyright law. And the essence of these decisions and Section 107 was -- before the onset of technically and commercially feasible copy protection -- that the copyrightholder's rights to control copyright-protected content ended with the exclusive rights enumerated in copyright law (make and distribute multiple copies; for performable works, public performance, etc.).
-Anything- else a citizen (''user," if you like) could figure out how to do with the work that didn't run afoul of the particular rights reserved to the copyrightholder was considered a 'fair' use of the work. So where the law was silent, the presumption was in favor of the citizen. And there was a de facto guarantee that when the copyright term expired, the work would enter the public domain where it could be used by anyone for any purpose, because it could be accessed by anyone and the copyrightholder's exclusive rights would no longer exist. A sensible system that worked to benefit both society as a whole and those in the business of publishing new works.
But now two things have happened to foul all that up: the copyright term extension statutes (producing de facto permanent copyright protection), and the onset of technical access protection in for-sale copies of works, synergized by the DMCA statute (making the content inaccessible after the copyright term expires, preventing use).
The current fair use law bluelarva cites evolved in reaction to the old regime, not the new one, and the active controversy (thank you, EFF!) as to the legitimacy of the new regime is based in large measure on the fact that the abstract principle of fair use -- which I think can clearly be seen as a package of citizens' (or consumers') rights counterbalancing the rights of copyright holders -- has been left out. And that means the tower of the new regime is built on sand, Constitutionally speaking (certain bad court decisions to the contrary).
Note that bluelarva's interpretation of fair use would seem to make the same assumption as the new regime, namely that where the law is silent, it is the rights of the copyrightholder -- not the citizen (==the public at large) that should be favored. * s i g h *
So... I think maybe the playing field's still a little too unsettled to declare definitively that fair use is not a right. Time may yet show us otherwise.
Senator Feinstein sent me a form response (see below) to my DMCA letter, and I find it unsatisfactory in the extreme. So I sat down to write her back, and thought some of you might find the result worth reading.
Dear Senator Feinstein,
First, thank you for considering the Digital Millennium Copyright Act issue important enough to develop a response for it.
When I first wrote you, I implored you to become active in seeking appropriate adjustments to address the worst excesses of the DMCA. I am sorry to say that I have been hoping for a more substantial reply than the one I received.
Yes, everyone agrees that a digital economy requires legal protections. But in any effort there is always the question of how much is enough, how much is too much, and what is lost by doing too much. News developments since I first wrote you make it more and more clear every day that the DMCA went too far, and, now that criminal enforcement has begun, that it is beginning to trounce the legitimate activity and normal relations of the technology ecosystem, is chilling public speech, and is distorting markets. Russian grad student Dmitry Sklyarov is facing 25 years in a US prison, plus a $2.5 million fine for writing a computer program in another country. I'm sure you're aware that today the Russian government issued a warning to Russian computer technologists that they should not travel to the US because they risk imprisonment! Encryption researchers have begun to resort to anonymity when publishing their results, even in other countries. The situation is quite drastic, global in scope, and I must say requires closer examination and more action than your reply would indicate you plan to take.
The constitutional copyright mandate is for Congress to provide laws to ensure adequate compensation for creators to bring new works forth -- not to guarantee every possible compensation for every imaginable use of every copy of every work. You analogize intellectual property rights to physical property rights, but any copyright scholar will tell you that intellectual property rights have never entailed the same kind of rights as physical property rights, and for good public policy reasons (see for example the writings of Jefferson). I should be able to listen to the CDs I buy on my computer and in my car without paying again. I should be able to watch a DVD I buy in England when I get home without paying again. I should be able to watch a DVD I buy on my computer, even if it's a Linux computer without a CSS player. I should be able to back up my e-books without having to pay again. When the DMCA went too far, I lost those rights. I also lost my ability to protect myself against the objectionable practices of the copyright industries, whose interests are, after all, different from mine as a consumer. If I were to try to regain my rights, simply by using my ordinary computer industry skills, I could go to prison for 5 years per each copied item. This is not piracy. This is not bootlegging. This is not mass duplication. Let those stay illegal. This is basic consumer rights.
To my mind, the most egregious aspect of the DMCA is that by criminalizing the circumvention of access control technologies even for media that the consumer has bought and paid for (and no matter how flimsy the protection), the Act requires the American people's own government to act against them, as enforcer of the copyright industries' purely self-serving business initiative to get them to pay for every movie, program, song, and book over and over and over again -- ultimately, to pay for every single access. Imagine your home library with a coin-operated lock on every book. That is our future if the DMCA is not amended.
So I respectfully ask you again, at a minimum, to clarify your position as to whether you will help to adjust the areas where the DMCA is clearly excessive, or whether you will oppose such efforts. I would like to think that you can appreciate the gravity of the situation, and the depth of the discontent of your technically-minded constituents, and will act in the people's interest.
In considering this question, please don't accept at face value the copyright industry's self-serving assertion that only perfect protection will prevent economic collapse in movies, music, publishing, and software. In the DMCA, America traded away the rights of consumers and the free speech rights of technologists in order to achieve a 'perfect protection' scenario by inventing draconian criminal penalties for otherwise ordinary and accepted activities. But cryptographers know very well that perfect protection is impossible, and always a red herring. 'Pretty Good Protection' -- meaning relying on ordinary civil copyright protection, and reserving draconian criminal penalties only for those who mass-distribute copies that could replace sales -- is good enough to keep the copyright industries in business, and just as profitable as they have been, without requiring us to trounce consumer rights and throw our brightest programmers and researchers into prison.
I know that the studio heads in Hollywood are your constituents, but please keep in mind that you also represent the young technologists who work in Silicon Valley. Please, reconsider adjusting the anti-circumvention aspects of the DMCA.
Sincerely,
--- Snogwozzle
Bay Area, California
Dear Mr. Snogwozzle:
Thank you for writing to me about the Digital Millennium
Copyright Act.
I have always believed that the protection of intellectual
property rights is as important as the protection of any other
property right. Moreover, the protection of intellectual property is
vital to a flourishing economy -- particularly in California.
America's music, movie, and software industries are second to
none, and we export far more intellectual property than we import.
This is good for employment, and good for consumers.
Without strong copyright protections, the incentive to
innovate would be diminished. In fact, this issue was so important
to the Founding Fathers that the ability of Congress to protect
copyrights is actually written into our Constitution itself.
The Digital Millennium Copyright Act was Congress'
attempt to address the issue of copyright protection in a new,
digital age. As new technologies have developed over the past few
years, it has become increasingly difficult to protect intellectual
property from illegal copying and distribution. It is a delicate
balance, to be sure -- nobody wants to restrict the development of
new and exciting technologies, but we must work to prevent the
creation of perfect, digital copies of copyrighted works which can
be illegally distributed throughout the world.
Please be assured that I understand your concerns, and I
will keep your views in mind.
If you have other questions or comments, please do not
hesitate to write to me again, or contact my Washington, D.C. staff
at (202) 224-3841.
Sincerely yours,
Dianne Feinstein
United States Senator
Copying copyrighted information is not stealing. ... Copyright infringement is a more accurate term, though far less emotive.
If I see this mistake repeated even once more, I'll pop.
Copying copyrighted information is not always copyright infringement. Only illegally copying copyrighted information is copyright infringement.
Whatever one thinks the proper scope of fair use should be, room for fair use is always there, and fair use exceptions always limit the enforceability of the copyrightholder's monopoly on copy-making -- so that (under the copyright fair use statues, albeit not under the DMCA) some forms of copying not approved by the copyright holder can always be legal.
I hear all this crap about protecting the little guy, well that's fine and good. But the little guys interests needs to be balanced against the interests of society at large (and the legal claims of, what is in economic terms, the real majority).
Ignoring Napster for the moment:
Fair use rights belong to US citizens, whereas the copyrights to which you refer belong to corporations. US citizens interested in time-shifting, space-shifting, and sampling that music outnumber the corporations distributing it by a ratio of millions to one. Your term 'society at large' means by definition the numeric majority, so you can't be both in favor of their interests and against the interests of 'the little guy' at the same time -- oxymoron.
The (often rather extreme) profitability of those few corporations does not in any sense give their interests the legitimacy implied by your term 'real majority'. In a democracy, every citizen's interests deserves the same consideration. If we were to follow your line of reasonsing then the more money you have, the more votes you'd get. That's the best definition of 'corruption' I've ever seen.
Good post, but it misses my point. I think there's no question distributing AEBR in the US is in violation of the DMCA anticircumvention section (which is exactly why DMCA is a bad law urgently needing adjustment). The point is, to use that law against Dmitry, the DOJ have to show that Dmitry actually did what the law prohibits. Since Dmitry did not AFAIK actually distribute AEBR in the US, this is impossible.
Dmitry is listed as _the_ copyright holder for the application. This means he has to approve of it's distribution. His company did market the software in the US at one point. Therefore, Dmitry implicitly approved of distributing a "circumvention device" (AEBPR) in the US, where is an illegal product.
There are some questionable assumptions in there that I think many observers are making (e.g. if the copyright text says Dmitry, then Dmitry must have controlled distribution, and must have had a deal to make money from the sales, and that's the same thing as distributing the software -- all dubious). Let's deconstruct that 'His company' part. Elcomsoft is Dmitry's employer, not an agent or instrument doing his bidding. Of course Dmitry knew AEBR was being sold in the US, and evidently did not prevent that (who knows, maybe the company even did it against his wishes), but in any event Dmitry was not the one selling AEBR in the US, Elcomsoft was. Despite what parents tell children, 'implicitly approving' of an illegal act is not the same as actually doing the thing. (IANAL, but am led to believe that if DOJ wanted to prosecute Dmitry for that, it would require a different cause of action, not a DMA charge, along the lines of 'conspiracy' or 'aiding and abetting' -- is that even available on a foreign national?) Dmitry, again, is a separate legal entity from Elcomsoft. Everything depends on the extent to which the DOJ can prove, as a matter of law, that Dmitry the foreign individual has criminal liability for the deeds of Elcomsoft the foreign corporation.
The complaint completely glosses over the difference betwen Dmitry and Elcomsoft, and doesn't assert that Dmitry himself has distributed AEBR in the US at all. So my original point holds: If US distribution of AEBR is an act of Elcomsoft, and Dmitry as an employee has no criminal liability for Elcomsoft's actions, then the prosecution is still fatally flawed, Dmitry goes free, and there is no test case. Copyright notices notwithstanding.
Here's a point I haven't seen examined yet. IANAL, but I don't see how Dmitry can be charged with violating DMCA anti-circumvention (DMCA-AC hereinafter). Here's why:
Premise: As I understand DMCA-AC, what's forbidden is 'creation and trafficking' in anticircumvention tools, with geographic scope limited to the US.
Analysis: While Dmitry created (or created a lot of) Advanced eBook Processor (AEBPR), he created it in Russia, not the US; and he has not personally 'trafficked' in it within the US - there is no DMCA cause of action against Dmitry. It was Elcomsoft that sold AEBR in the US, which -is- actionable under DMCA-AC. Despite employment by Elcomsoft, Dmitry the person is distinct from Elcomsoft the corporation and not criminally liable for the deeds of Elcomsoft.
Conclusion: For the prosecution to be successful, the US Attorney must show either:
a) that Dmitry individually has 'trafficked' in AEBPR, separately from Elcomsoft's sales of AEBR in the US, or
b) that Dmitry as an employee of Elcomsoft has criminal liability for Elcomsoft's actions in 'trafficking' in AEBR.
I don't see how either a) or b) can be proven, as there are no signs that Dmitry has personally distributed AEBR in the US, and no signs that Dmitry is an owner or officer of Elcomsoft -- just an ordinary employee. (If I were Dmitry's boss, or an Elcomsoft owner, I wouldn't be hanging around the US, though.)
If the above is factually correct, then the prosecution's only hope is to find relevant US law, precedent, or theories under which an ordinary employee of a corporation can be held to have criminal liability for the actions of the corporation. More specifically, the precedent or theory would have to pertain to the situation in which both the corporation and the employee are foreign nationals.
If there is no such law, precedent, or theory, the case ultimately fails, and therefore the US Attorney would likely decline to indict.
If the DOJ is looking for a way to make this case go away, either to avoid embarrassment or to avoid taking to trial a case with the potential to nullify DMCA-AC, this would do it for them.
In any event, there may not be any DMCA-AC test case here -- the charge may be flawed, and if so it should not have been brought in the first place, and will be dismissed.
Actual lawyers please comment?