Beware of the DMCA!

The Digital Millennium Copyright Act (DMCA) is an excellent example of the United States’ continued behavior of unfairly subsidizing special interest groups: Lawyers. Oh, sure, it was created because of lobbing from “Big Media” and software companies, but it’s the lawyers who are going to be the only winners in the end.

Among other things, the DMCA makes it illegal to circumvent copy protection systems protecting copyrighted works — music, video, software, etc. This gives unprecedented rights to copyright holders at the expensive of consumers’ “fair use” rights.

Under this law, the ability to copy the material for backup purposes is no longer guaranteed. Legally you can still do it, but only if the copyright holder lets you. The right to “time dilate” also becomes up to the copyright holder — is the cable-TV subscriber allowed to record a show now, and watch it later? Imagine buying a DVD video but only being able to watch it twice?

There are a number of examples of this law being used against legitimate fair use, and even academic research. The first involves a program called DeCSS, which was created in order to unlock DVD discs for archiving and playback on non-Windows operating systems.

The Motion Picture Association of America (MPAA) quickly started suing anyone who hosted or even linked to the DeCSS code, citing the DMCA. Several people became involved distributing the code around the Internet, with others creating different versions of the code.

Even academics became interested: Dr. David Touretzky started a “Gallery of CSS Descramblers” (search for it), trying to demonstrating that code is an expression of speech. Some of the smaller versions are available on T-shirts.

Another example making the head-lines currently is the case of Dmitry Sklyarov, a Russian programmer and researcher. He was visiting the United States to give a presentation on how all the e-book systems use extremely weak copy protection. Dmitry is the author of a program which breaks eBook copy protection called the Advanced eBook Processor, published by his employer, ElcomSoft.

After his presentation (at DefCon, a well known crackers convention), Dmitry was arrested, charged under the DMCA, and held for 21 days before being released on 50,000 bail. ElcomSoft, was also charged. If found guilty, Dmitry could face fines of over $2 million and 25 years in prison. ElcomSoft faces fines of up to $2.5 million.

While not the only examples, they illustrate the problem with this new law nicely. While both DeCSS and the eBook Processor can be used for piracy, they also have perfectly legitimate uses. Previously, thanks to the “Sony Decision”, the law sided with fair use. That’s no longer the case.

And the second case also demonstrates that non-US citizens need be concerned about this law as well. Without meaning to go over the top, there may soon be software regularly used by non-US citizens to back up their media. Such software might be a problem if carried into the US on a lap-top.

On the other hand, with continued pressure to normalize the world’s laws (through the World Intellectual Property Organization (WIPO) treaties, among others), it is more likely we’ll soon find ourselves under similar laws ourselves. In fact, Ottawa is beginning work on DMCA-style revisions to our own copyright laws.

The software industry mostly gave up on copy protection over a decade ago because it didn’t stop piracy, but annoyed legitimate users. It doesn’t work because it will always be defeated, eventually. No scheme thus far deployed has ever survived large scale deployment unbroken. Making it illegal will just add a profit incentive.

Legitimate users, on the other hand, will suffer, losing the ability to control their own material. Backing it up as they wish, or converting it into different formats for particular needs — CDs into MP3s for office and mobile listening, for example. Or, in the case of the eBook Processor, allowing blind users to have their computer read the contents aloud.

Few expect the DMCA to survive the inevitable court challenges to it — may aspects of it are likely unconstitutional. Dr. Edward Felton, who was blocked from publishing research on watermarking technology, is suing on exactly this matter.

But, as with most things legal, it will take years to settle out. Oh well, at least it’s all billable time, to someone…

Published in the Victoria Business Examiner.

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