FBI to employ Torture: Civil Rights out the window

Saturday, October 27, 2001 · **doubles**

-----BEGIN PGP SIGNED MESSAGE-----

		      Mad as Hell about the DMCA
			 By "Beale Screamer"

This document is intended as a position paper on copyright and the
abuses the copyright system has undergone, especially with the
introduction and abuse of the notorious Digital Millennium Copyright
Act (DMCA).  This document is originally distributed with software
that in fact clearly violates the DMCA, and so this gives background
on why I would write this software.  I hope that anyone who uses this
software reads the "README" and "LICENSE" files in the same
distribution, and respects my wishes as to how the software should be
used.  I do not want to create massive copyright infringement, but
rather hope to give people the tools to regain the rights that have
existed for centuries with respect to copyright, and are now in danger
of being taken away in a most uncompromising manner.

Copyright has always been intended as a balancing act between the
rights of authors/publishers and the rights of consumers.  Technical
advances are making it possible for publishers to take away
technically what they would have a hard time justifying legally or
morally.  And unfortunately, in a misguided attempt to address
copyright issues in the digital age, the U.S. government has given
legal backing to the technical means through the DMCA, outlawing
attempts at circumventing these technical protections.  In effect,
this gives publishers full and complete control over copyright issues,
without the annoyance of actually having to go through the usual
legislative debate and judicial review.  As a shock to no one, the
publishing industry (particularly the MPAA and RIAA) have used the
DMCA as a bludgeon to attack anyone who suggests that consumers and
citizens have rights too.  I hope people take my civil disobedience as
an opportunity to send a message to publishers.  To borrow words from
Howard Beale in the movie "Network," just yell to the publishers "I'm
mad as hell, and I'm not going to take this anymore!"

DISCLAIMER

I am neither a lawyer nor a copyright expert, so my personal opinions
are really those of an "interested outsider."  I have done extensive
reading on the basis and history copyright, as well as following the
most visible current legal cases regarding the application of
copyright and the DMCA.  But clearly no one should take any of the
information or ideas of this document as legal advice or precedent!  I
*am* an expert on the technical issues involved, and plan on being a
thorn in the side of the publishers until they adopt a more reasoned
and reasonable approach.  The current climate regarding these issues
leaves me little choice except to remain anonymous.  I don't intend on
being a martyr, or on spending the next decade of my life defending
myself in legal proceedings.

HISTORY OF COPYRIGHT

The history of copyright has been written many times, but a good,
brief account is available from the Association of Research 
Libraries [1].  For the past several centuries, copyright law has 
tried to balance the rights of consumers with incentives to authors
and publishers for promoting their work.  It is quite explicit in the
intent of copyright that in the sale of a copyrighted work, "once
purchased the copyright owner does not control the use of the work" [1].
Lawrence Lessig, a Stanford law professor and expert on these issues,
echoed this observation in an interview when he pointed out that "The
traditional idea of fair use - and the law has been extremely vague in
defining this - is that the copyright owners do not have the right to
perfectly control how you use their copyrighted material" [3].

However, the situation today with the DMCA is precisely the opposite
of this intent: the use of the DMCA often does not have to do with
limiting copying or distribution, but rather with restricting the use
of the copyrighted work.  The violation of this intent was described,
among many other places, in quote taken from a New York Times article
in which they wrote "In the past, when a company published a book, the
fair use rights of readers limited its control over the work. But if
the same company issues a book today and encrypts it, its control over
readers is far greater -- in fact, almost unlimited -- unless there is
a right of access to the material."

The DeCSS case is a particularly flagrant example of this: the DeCSS
code does not have any effect on DVD pirates, who can simply copy a
full disk as-is.  The entire purpose of using CSS by DVD publishers
seems to be to restrict how the material is used!  The purpose of
DeCSS was to allow legitimately purchased DVDs to be played on Linux,
a system that at the time did not support DVD playback.  It is
abundantly clear that this is 100% OK with respect to copyright;
however, it violates the DMCA, since the *use* of the material is in a
manner inconsistent with what the publisher desired.

The erosion of the reader's/listener's rights has been a steady process
for many, many years.  The limited time granted for copyrights has
been repeatedly lengthened, and now is a totally preposterous 70 years
past the death of the author.  While the "limited time" is no longer
terribly limited, the introduction of the DMCA goes even farther in
this extreme by allowing publishers to have an infinite-time monopoly
on a work: they can simply put technological protection measures on a
work, and the DMCA makes removing those measures a crime even when the
work is no longer covered by copyright!

The best treatment I've seen of these issues is an excerpt from Siva
Vaidhyanathan's book "Copyrights and Copywrongs: The Rise of
Intellectual Property and How it Threatens Creativity" that was
published on msnbc.com [2]. If the bulk of the book is as good as the
excerpt, this will be an outstanding book, and I take the liberty of
quoting quite a bit from this work here.  As an overall background to
copyright, Vaidhyanathan begins with the following:

    Copyright, when well balanced, encourages the production and
    distribution of the raw material of democracy. But after more than
    200 years of legal evolution and technological revolution,
    American copyright no longer offers strong democratic
    safeguards. It is out of balance. And our founders - especially
    Thomas Jefferson - would not be pleased.

    Copyright was created as a policy that balanced the interests of
    authors, publishers, and readers. It was not intended to be a
    restrictive property right.

I have to agree that the founders would not be pleased with what is
happening today.  Vaidhyanathan quotes the following passage from
Thomas Jefferson regarding copyright: "It's peculiar character, too,
is that no one possesses the less, because every other possesses the
whole of it. He who receives an idea from me, receives instruction
himself without lessening mine; as he who lights his taper at mine,
receives light without darkening me."

One of the big successes of publishers such as the RIAA and MPAA has
been a steady erosion and public brain-washing regarding the point of
copyright.  A simple but effective measure has been the modification
of terminology that is used for copyright violations: they speak of
people "stealing intellectual property" or "theft of copyrighted
music" in the trading of MP3s.  The wide-scale copying ala Napster
clearly is copyright violation, but "theft"?  The definition of
something being "stolen" means that it is taken from the rightful
owner - and the owner no longer has possession of that item.  As
Jefferson observed several centuries ago, this simply doesn't apply to
the types of material that are copyrighted.  Making a copy of an item
doesn't in any way remove that item from the original possessor, so
"theft" is clearly an inaccurate terminology.  However, the
publishers' insistence on using that word, and the public's acceptance
of it, means that a much more negative light is cast on an action
that, while wrong, is nowhere near the severity of a true "theft."

The use of terms "theft" and "intellectual property" cleverly casts
copyright issues as being "property" issues, although Jefferson and
other founding fathers explicitly did not accept the idea of writings
as property.  Remember: just because the publishers want you to think
of recordings and music as property does not make it so!

One final quote from Vaidhyanathan, this time talking directly about
the DMCA:

    This law has one major provision that upends more than 200 years
    of democratic copyright law. It forbids the "cracking" of
    electronic gates that protect works - even those portions of works
    that might be in the public domain or subject to fair use. It puts
    the power to regulate copying in the hands of engineers and the
    companies that employ them.

The last sentence is vital: the regulatory role regarding copyright
has now been fully turned over to the publishers and technology
producers.  Congress has explicitly written itself out of the loop on
such regulatory issues, and has thrown the balance between publishers
and citizens entirely to the control of the publishers.  The citizens
have lost their voice in these matters, and unless Congress acts to
drastically change the DMCA and reassert the consumer side of the
balance, we simply will have no say in what rights the publishers
deign to allow us to have.

HOW THINGS SHOULD BE

Any Digital Rights Management (DRM) scheme has two sides: on the one
hand, the most obvious use is to take away the rights of the consumer.
On the other hand, it can in fact be used to give the consumer *more*
possibilities than existed before.  I think the idea of limited time,
full-length previews, or time-limited Internet-based rentals is
excellent.  If DRM was *only* used for this, in order to give us more
options than we previously had, I would not have taken the effort to
break the scheme.  What is bad is the use of DRM to restrict the
traditional form of music sale.  When I buy a piece of music (not rent
it, and not preview it), I expect (and demand!) my traditional fair
use rights to the material.  I should be able to take that content,
copy it onto all my computers at home, my laptop, my portable MP3
player, ...  basically anything I use to listen to the music that I
have purchased.  I can't do this at all with Microsoft's DRM scheme.
Ideally, I would see two types of sales: limited, clearly spelled-out
licenses for rentals and previews, and traditional sales, where the
content is not protected, and ideally is provided in an open,
non-proprietary format.  As long as publishers insist on removing our
rights in a traditional sale, we will continue to fight back with
technical and legal measures.

To complicate matters in the specific case of Microsoft's DRM version
2 technology, not only are licenses applied, but there doesn't seem to
be a clear way to even see what your license really enforces.  A
technically skilled person who knows how the scheme works can look
through the binary license file, find the ACTION strings, and figure
out what restrictions the license imposes, but the overwhelming
majority of people simply will have no idea what license they have
purchased.  If a publisher decided to hide a 5 year expiration date in
the license, for whatever reason, the average consumer would have no
way of knowing this.  And after 5 years, your license would go away,
and there would be nothing you could do about it.

Laws passed by the government should not simply do corporate bidding.
Congress is supposed to be there to protect *our* rights, but
unfortunately, money talks, and that seems to be the basis of the
DMCA.  Even with legal issues put aside, technology has the ability to
take away our rights, especially if cryptographic "secure hardware"
gets incorporated into devices.  The government should be using its
power to *limit* that, not enhance it!  In other words, the government
should be passing laws that guarantee that the citizens retain their
fair use rights, *regardless* of what the technology allows.  And laws
should somehow (escrowed keys for corporations, perhaps!?)  be in a
position to guarantee that technical measures expire at the same time
the copyright does, forcing the work into the public domain as has
been happened historically.  And finally, if the technology is used
for new services, laws should ensure that the technology should be
designed in such a way that full disclosure of license restrictions is
made to the consumers.

I'm not sure I hold out much hope of this happening.  The publishers
will certainly fight strongly against it.  But until such changes are
made, expect to see me and others like me doing acts of civil
disobedience in order to salvage what we can out of this travesty.

CURRENT ABUSES

The DMCA has been used in a reprehensible fashion in at least 3 cases:
the DeCSS case, the case of Edward Felton, and the case of Dmitri
Sklyarov.  The DeCSS case was mentioned above, where the MPAA used the
DMCA as a weapon to attack a tool whose primary use is to make legal
use of legally obtained material (DVDs).  However, since the
particular use is not sanctioned by the MPAA, they used the DMCA to
criminalize what would otherwise have been a perfectly legal use.

Increasing the level of appalling behavior, the SDMI Foundation
threatened to sue Professor Edward Felton for disclosing an attack on
several of the SDMI audio watermarking technologies, even though the
attacks were performed at the specific invitation of the SDMI
Foundation!  By participating in the SDMI challenge, and rejecting any
claims to the cash prizes offered, the challenge announcement clearly
allowed Felton to retain rights to publish details of his work.  In
the DeCSS case, Judge Kaplan decided that DeCSS could be suppressed,
despite first amendment concerns, because computer code was not
allowed the same rights as English prose.  This seems to contradict
the decision in the Bernstein case that source code is protected
speech, but this is just one of the many decisions Kaplan made in this
case that were very poorly thought-out.  Kaplan decided that code
wasn't protected speech, so Felton's paper carefully avoided including
any code, and stuck to straight English descriptions.  Even so, the
SDMI Foundation, in its initial threats to sue Felton and his research
group, was somehow trying to make the argument that English
descriptions are no longer protected speech.  This is clearly absurd,
and the RIAA and SDMI Foundation have apparently understood this and
backed off in their initial threats, now going so far as to claim they
never intended to sue.  However, their actions with Professor Felton
are clearly at odds with their later revised history of events.

Finally, the case of Dmitri Sklyrov is perhaps the most appalling of
all.  Among its other problems, the DMCA has taken what has
traditionally been a civil matter (copyright issues) and criminalized
certain actions.  Dmitri Sklyrov wrote a program that removes
protections from Adobe e-books, restoring traditional fair-use rights
to e-book owners.  Furthermore, he wrote this program in Russia, where
it is not illegal.  His company (and I don't believe there are any
claims that he did this personally) distributed his unlocking software
from a U.S. website, and on the basis of this Sklyrov was arrested
when he made a trip to the U.S.  Sklyrov has actually spent time in
jail on these extremely flimsy grounds, and faces a criminal
prosecution in the matter.  Despite the fact that Adobe has
subsequently said it doesn't wish for Sklyarov to be prosecuted, the
government is continuing in its case.  This is apparently the reward
that the government gives for people who stand up for their fair use
rights under copyright law, and is the primary reason I'm remaining
anonymous.

FUTURE

What does the future hold?  Hopefully, the government will start
acting to protect citizen's rights instead of corporate interests.  If
this doesn't happen, expect to see many of the current DRM schemes
being very publicly broken as an act of protest.  I will stay quiet
for a while, until any publicity of this current work dies down, but
there are many, many others out there that have the ability to do
precisely what I've done, and are in fact doing so right now.
Remember: "We're mad as hell, and we're not going to take this any
more!"

REFERENCES

[1]  http://www.arl.org/info/frn/copy/timeline.html

[2]  http://www.msnbc.com/news/594462.asp?cp1=1

[3]  http://www.openp2p.com/pub/a/p2p/2001/01/30/lessig.html

-----BEGIN PGP SIGNATURE-----
Version: 2.6.2

iQCVAwUBO5qtwJCr1f2GXCalAQEXOQP/Qh6toTxTXqOmbxx4HD0xpIRRRS+9YWqi
UO9rtZ4FXlnTpHYfy8//C6sGRlHbRIU19+ChgZ6psWwHId2KdYYSDdfwOTJsGA6C
AdeA2uwG1I72lyqGNKOGm2B3GIKOLrWIFAU4ZDD8EE/Hkq0dtDHrLTjng5iAiv2y
6D0mZsQypr8=
=cZyW
-----END PGP SIGNATURE-----