[CrackMonkey] [email@example.com: Re: [firstname.lastname@example.org: cba outline]]
Peter A. Peterson II
pedro at tastytronic.net
Wed Feb 20 08:20:09 PST 2002
This was our outline, complete with coments from Seth. THe actual
conversation basically leapt right over reverse-engineering, but
that's the way the ball crumbled.
----- Forwarded message from Seth David Schoen <schoen at loyalty.org> -----
It sounds great!
I personally prefer "copy control" to Nick's suggestion "copy
restriction", although I also use "copy restriction".
Peter A. Peterson II writes:
> Nate Riffe and I are giving a talk to the Chicago Gar Assoc. tomorrow,
> (haha, that's BAR assoc.), about the DMCA. At their lunches, they get
> people "from the community" to give their perspectives on issues that
> are pertinent to the law community. Pretty cool.
> Anyway, it's supposedly pretty informal, so it's not like we have to
> put togheter a "case" or something like that, but we want to be
> coherent and show the inherently flawed nature of the DMCA.
> Here is our outline, and here are the links to the articles we are
> We'd appreciate your thoughts and comments. Sorry about the crappy
> ----- Forwarded message from "Peter A. Peterson II" <pedro at tastytronic.net> -----
> Date: Mon, 18 Feb 2002 15:01:24 -0600
> From: "Peter A. Peterson II" <pedro at tastytronic.net>
> To: Nate Riffe <inkblot at tastytronic.net>
> Subject: cba outline
> User-Agent: Mutt/1.3.20i
> X-pw: reindeer flotilla
> * Introduce ourselves
> * read "The Right to Read" by rms
A great piece!
> * overview of dmitry (were we going to make this up?)
> + focus on the dmca's part in that
> * segue in to practical ramifications -- "my CDs"
> - NMM, SDS, this refers to how i listen to my cds as mp3s and oggs at
> work although i don't share them with people. this is currently
> legal as fair use, but in the case of copy protected cds, would be
> a felony under the DMCA.
Tricky issue about fair use: some say fair use is a right and others
say fair use is just a "defense" (to defend yourself if you're accused
of copyright infringment). But it is true that your action is a fair
use and would be prevented by technology and then the technology would
be protected by law.
> * discuss DMCA in the light of these issues
> + neutrality of tools
> - important to relate this to my cd issue -- there are practical,
> everyday uses for these tools that are legal.
> + importance of reverse engineering
> - utilizing your fair use rights
> - education -- problem solving, taking apart radios
> - it may break patent laws, but then... duh!
> - improving security through constant legal scrutiny
> - poor security schemes should be eliminated, not just made
> illegal to scrutinize.
> - safety (if it can be broken, it will)
> - historically, companies (in all areas) are not good at being
> their own watchdog -- security scrutiny keeps companies like
> this honest and producing good security, or facing the facts.
> - customers whose data is held in an insecure format is open to
> compromise, and people are unable to circumvent, or show the
> flaws in teh security model. Imagine if Dateline could run a
> story about Ford Explorers, but not tell you what was actually
> wrong, or if Ford issues a recall, but didn't (and wouldn't)
> say why!
> - if it can be broken, it will be. And if it is criminal for law
> abiding citizens to scrutinize the security, only crooks will
> do it.
> + Fair Use
> - we are granted fair use rights to material that we buy (or things
> that we choose to excerpt) without getting the prior approval of
> the copyright holder. (See CD example). The DMCA effectively
> eliminates "Fair Use" by only allowing you to do what is
> expressely permitted by the product. In the case of copy
> protected CDs, you may ONLY play them. In the case of DVDs, you
> may only play them in a DVD player from your "region" (i.e.,
> British DVDs will not work in America, American DVDs will not
> work in Japan, etc.) Circumventing this "copy protection" (which
> you might also call "use protection") is a felony under the DMCA.
You might not want to say "a felony" because that applies to criminal
offenses (see below) and most DMCA threats if you aren't making money
"without getting the prior approval of the copyright holder" -- and
even if the copyright holder strongly disapproves. Campbell v.
Acuff-Rose (parody case). Many people, even lawyers, don't realize
this: fair use protects you (_in some specific situations_) where you
want to make a use _that a copyright holder actually explicitly
refuses to permit_. Parody is a great source of examples on this.
Instead of "eliminates fair use", how about "eliminates fair uses
which are dependent on technology" or something? The point in some
recent court cases has been that fair use still exists but the
technology may prevent you from making particular fair uses, and you
don't have any recourse even if you were willing to fix/develop the
technology yourself. Statements of movie studio reps that there is no
"right" to make fair use "in the most technologically modern way";
they are very serious about the idea that it is acceptible if
technology completely forbids some uses which would have been legal
> - Copyright and Patent law ALREADY exist. If I pirate copies of a
> CD or of software, I'm already breaking the law. If I reverse
> engineer something and produce a similar product, I may be
> breaking patent law. The law already exists.
> - The DMCA creates the crime of "circumvention", which in many
> cases is central to exercising your fair use rights because of
> the restrictions that content producers have built into their
> products. (read booshay)
> - if we have time, we may want to touch on "click on" licenses and
> the like, which further restrict rights. (Especially free speech
> in the case of the NA "no reviews" deal in NY.)
> * possible further discussion of dvds (but you'll see I worked it in
> there under fair use)
> * we may want to highlight sections of the templetons thing to read,
> or of Rick Booshay's article as well. It seems to me to be honest to
> admit that PIRACY is a legitimate fear of the content producers. But
> it is not a justification to restrict our rights to the products we
It's Rick Boucher (U.S. Representative); I've heard it pronounced
"bouch er". People may have (mis?)interpreted it as French or
Things to be aware of:
DMCA passed in 1998, most provisions in force in 2000 (if I remember
correctly); first litigation in 2000 (Streambox, 2600, some others);
so far no courts found it unconstitutional, though some cases settled
out of court or dismissed on procedural grounds.
17 USC 1201(a) act of circumvention (illegal to circumvent)
17 USC 1201(b) tools/trafficking (illegal to traffic in circ.
There are other things in the DMCA; 1201(a)/(b) are the
"anti-circumvention provisions" (by far the most controversial part)
of that law.
There are some exceptions _but they are only exceptions to 1201(a) and
not to 1201(b)_; there are no exceptions to 1201(b) which means that
you can't use anyone else's software/product to exercise any rights
you might have under the DMCA.
There is civil liability (fine/injunction) for noncommercial
violations, criminal liability (jail time) only for "commercial"
violations (parallel to pre-LaMacchia rules for copyright
DMCA was supposed to implement a pair of WIPO treaties; some debate
about whether Congress had to go as far as it did, whether the
treaties should have been ratified at all, and finally whether the
implementing legislation, even if required, is constitutional.
"Code is speech" issue -- do you want to get into that? "The DMCA is
not only bad but also unconstitutional because of the way it burdens
speech." Publishers of software now being censored and punished.
Long, intricate history of EFF and other litigation over this issue.
Some courts: no code is speech. Others: source code is speech, object
code is not. Others: all code is speech. Within the latter two,
there is disagreement about appropriate level of scrutiny for
This is a fertile area in which there is lots of stuff available; many
court cases (one succeeded in having Federal regulations thrown out
because they restrained publication of software and infringed
cryptographer's free speech rights; upheld on appeal but appellate
(9th Circuit) opinion withdrawn after factual situation changed)
and law review articles and so on. There is lots of material for
anyone who wants to read in this area... hot "speech/conduct",
"speech/functionality" debate. Unfortunately, many people don't
realize that programmers can actually read programs (my bias); they
have been taught to see programs as "products" or "machines" rather
than as texts. (If programs were not texts, why would they be
copyrightable? Machines are not. ... argument presented in one of
the 2600 briefs, copyrightability of software suggests that it is
expressive, creative work -- what other copyrightable material does
not receive strong first amendment protection?)
Other good stuff: the issue that copy controls can translate into
monopolies on producing hardware/software and therefore copyright
holders get to dictate technology design decisions, or enforce their
policy choices about things _which were not previously their right
to regulate under copyright law_, e.g. preventing resale, restricting
private performance, etc., etc. DVD region codes are a great example:
not independently legally binding on consumers under U.S. law
(probably) but with a technology monopoly, they get to enforce that
policy against us using the technology. Making your own technology or
eliminating that restriction (not copying at all) is now considered a
A recent objection from a scholar: the new "circumvention" crime has
become almost entirely decoupled from the "control of (some)" copying
goal of copyright law. "Circumvention" is very broad and sweeps over
all kinds of activities which have no infringing purpose (but might
still be disliked by copyright holders _if they are presented with
Reform proposal from Boucher (alluded to, not proposed in Congress),
EFF, others: "circumvention" should only be illegal _if it is done
in order to commit actual copyright infringement_ and not if it is
done for other purposes. Also, eliminate the devices rules so that
technology is not regulated. People who crack copy controls in order
to infringe copyrights may then be punished but "innocent
circumventors" are protected (pre-2000 status quo).
Good background: Lessig, _Code and Other Laws of Cyberspace_, _The
Future of Ideas_ (Lawrence Lessig, former Harvard now Stanford Law
professor), discusses broad implications of ways technology regulates
things (policies/values built into technologies, distinct from
individuals' legal rights and duties)...
Seth David Schoen <schoen at loyalty.org> | Reading is a right, not a feature!
http://www.loyalty.org/~schoen/ | -- Kathryn Myronuk
----- End forwarded message -----
"Sure I want to be the biggest telecom company in the world,
but it's just a commodity. I want to be able to form opinion.
By controlling the pipe, you can eventually get control of
the content." -- IDT chairman Howard Jonas
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