[A2k] Re: ACTA, Counterfeiting, Identity Theft and "Trusted Computing"

[Seth Johnson]

If ACTA is Palladium/TCPA enforcement, then once it's ratified you
won't have the ability to parse and process the published information
that is the fruit of copyright policy. It's parseability that disrupts
the old model, that lies under copying, whether local or distributed,
that is at the core of the impact of computing on copyright. We have
always preserved parseability by some technological and/or policy
"exception" means so far, under the DMCA and the WIPO Treaties so far,
but Palladium/"trusted computing" will eliminate that.

Copyright doesn't cover information -- it covers original expression;
this is just straight traditional copyright. But copying of static
works as a whole, in private or public, will become the subject of
copyright, as they become subject to constraints that will be
uncircumventable under "trusted computing." Which is to say, the
fact/expression dichotomy will be gone, and "copyright" will constrain
information itself, not just originality.


Seth


Seth Johnson wrote:
>
> 1) ACTA =3D Legal Backing for Palladiated Computers? . . .
>
> So I'm reading up on ACTA a bit (lots of links below), and am I wrong
> in thinking people are missing the boat?  I don't think that
> counterfeiting is just a weasel word that makes it hard to argue
> against it, and I don't think the audacity and expansiveness of the
> bits and pieces we see so far are simply attributable to the influence
> of corporate players on the negotiations.  When I read this stuff I
> get the distinct impression that the reason for the audacity and
> arrogance is that it's an enabling framework for a global
> technological solution for content control.  It seems to me to be
> about providing legal backing for "trusted computing" by regulating
> the counterfeiting of encryption/authentication keys.  Does this makes
> sense to anyone?
>
> We need to anticipate this and put out significantly new kinds of
> messages if this is the case.  It's going to be easier to start
> priming the Senate with the right messages before ACTA comes out, than
> it will be once we get hit with it.  "Trusted computing" could be very
> compelling and hard to counter -- so it seems to me that ownership of
> real computers that are under the control of their owners is
> important.  I would also say we need to stress more the freedom of
> factual elements within expressive works and perhaps a "right to
> parse" that correlates with that.  The fact/expression analysis is
> more effective these days now that the maximalist view of copyright
> has been rejoindered for many years and we do see significant inroads
> in that respect.
>
> 2) Identity Theft hearing tomorrow . . .
>
> Tomorrow, Marc Rotenberg will be testifying at the following hearing.
> It seems to me it would be quite good if those testifying could make a
> point of raising concerns about "identity theft" in connection with
> the notion of anti-counterfeiting.
>
> "Identity Theft: A Victims Bill of Rights."
> this Wednesday at 2:00, Rayburn 2154
>
> > http://oversight.house.gov/documents/20090612130759.pdf
>
> (House Committee on Oversight and Government Reform,
> Information Policy, Census and National Archives Subcommittee)
>
> One could warn that this issue should not be confused with copyright,
> which relates to public interest concerns and cannot be reduced to a
> private interest calculus, and legislation in the areas of identity
> theft or counterfeiting can be misused to provided legal backing for
> technological measures that create computers that are not under the
> control of their owners.
>
> 3) Anti-Counterfeiting Bills and "Trusted Computing?" . . .
>
> Here's an article by Declan McCullagh from 2002 about an
> anti-counterfeiting bill introduced by Biden.  It seems quite clear
> that the counterfeiting in question is counterfeiting of keys, not of
> works.  Perhaps this would include the "outsiders' keys" that would be
> baked into the motherboards of palladiated computers and used to
> monitor and validate everything you do, as well as watermarks and
> holographic authentication keys.
>
> Declan McCullagh on Biden Anti-Counterfeiting Bill (2002):
> > http://news.cnet.com/2010-1071-946732.html
>
> Why would we not figure that the Anti-Counterfeiting Trade Agreement
> would be taking up the same thrust?
>
> 4) Suggestive ACTA Language? . . .
>
> Aside from the consistent combining of the terms counterfeiting and
> piracy, these phrases from the US Trade Representative's documents
> seem to me to particularly signal a counterfeiting policy relating to
> encryption/authentication keys:
>
> "The objective of the ACTA negotiations is to negotiate a new,
> state-of-the art agreement to combat counterfeiting and piracy."
>
> "measures to ensure that infringing goods are not released into free
> circulation without the right holder=92s permission, and possible
> exceptions;"
>
> "capacity of competent authorities to require right holders to provide
> a reasonable security or equivalent assurance sufficient to protect
> the defendant and to prevent abuse"
>
> Similar cues seem to me to be apparent throughout the various released
> or leaked documents.
>
> Seth
>
> (Many links below)
>
> ---
>
> Pirate This, Go to Jail:
> > http://news.cnet.com/2010-1071-946732.html
>
> By Declan McCullagh
>
> July 29, 2002 4:00 AM PDT
>
> WASHINGTON--Sen. Joseph Biden has become one of the newest field
> marshals in Congress' intellectual property wars.
>
> After the 59-year old Delaware Democrat took over the Foreign
> Relations committee last year, the software and entertainment
> industries enlisted him in their anti-piracy struggles. That prompted
> Biden to convene a hearing where he denounced copyright thievery in
> stentorian tones. "Windows XP was available for illegal use on the
> streets of Moscow two months before it was released in the U.S. by
> Microsoft," Biden said. "Every episode of "Seinfeld" is now available
> to download free to anyone with access to the Internet."
>
> At the hearing in February, Biden released a 52-page report written by
> his aides and titled: "Theft of American Intellectual Property:
> Fighting Crime Abroad and At Home." One section devoted to counterfeit
> products expressed the worry that "counterfeiters flood markets with
> their underpriced products and steal a great deal of revenue."
>
> A few weeks later, Biden introduced a bill titled the
> "Anticounterfeiting Amendments of 2002." It originally targeted the
> kind of large-scale pirates who manufacture fake Windows holograms,
> but in a little-noticed move this month before being sent to the
> Senate floor, the proposed legislation was rewritten to encompass
> technology used in digital rights management.
>
> Biden's new bill would make it a federal felony to try and trick
> certain types of devices into playing your music or running your
> computer program. Breaking this law--even if it's to share music by
> your own garage band--could land you in prison for up to five years.
> And that's not counting the civil penalties of up to $25,000 per
> offense.
>
> Biden's new bill would make it a federal felony to try and trick
> certain types of devices into playing your music or running your
> computer program.
>
> "Say I've got an MP3 collection and I buy a new nifty player from
> Microsoft that only plays watermarked content, and I forge the
> watermark to allow my legal MP3 collection to play," says Jessica
> Litman, who teaches intellectual property law at Wayne State
> University. "It is certainly the case that if I pass that around, I
> could be trafficking (in violation of the law)."
>
> Biden's proposed additions to copyright law come as Congress is under
> increasing pressure. In the last few weeks, Hollywood and the music
> industry have stepped up their demands for more authority to curtail
> digital piracy, backing a new bill to allow hacking of peer-to-peer
> networks, trying to limit Americans' rights to record TV and radio
> broadcasts, and predicting even more legislation in the next few
> months.
>
> Then there's Microsoft's Palladium approach and the separate Trusted
> Computing Platform Alliance (TCPA) project, both of which anticipate
> the embedding of special security chips in PCs. Since Biden's bill
> prohibits "illicit authentication features" attached to software, it
> could become unlawful to distribute software that would run on a
> Palladium-outfitted computer without Microsoft's permission.
>
> It's not clear why Biden made the changes during the July 18 vote in
> the Senate Judiciary committee, and a spokesman did not respond to a
> request for comment on Friday. Biden's original bill covered only
> "physical features" such as holograms or special boxes used to certify
> software, CDs, or DVDs as authentic. The revised version, however,
> covers "any feature" used to guarantee authenticity.
>
> Merely creating a fake watermark or digital signature would not be
> illegal, but "trafficking" in it or redistributing the file would. In
> addition to criminal penalties, the bill permits a company whose
> watermark or digital signature was used to sue for damages "of not
> less than $2,500 or not more than $25,000, as the court considers
> appropriate."
>
> Biden's anti-counterfeiting bill has broad support in the Senate,
> where it now awaits what's expected to be an overwhelmingly positive
> floor vote. Its sponsors include key Democrats and Republicans,
> including Senate Commerce chairman Fritz Hollings, D-S.C., Senate
> Judiciary chairman Patrick Leahy, D-Vt., and Orrin Hatch, R-Utah, the
> top GOPer on the Judiciary committee.
>
> "The bill has been put on a fast track to enactment, and there
> currently appears to be little likelihood of a public debate similar
> to the one surrounding Senator Hollings' digital rights management
> proposal," says Stewart Baker, an attorney at Steptoe and Johnson who
> specializes in technology law. Baker is talking about Hollings' plan
> to forcibly implant copy-protection technology into nearly every PC
> and electronics device, an idea that's backed by Walt Disney but has
> been savaged by programmers and technology firms.
>
> "It is possible, for example, that the bill allows criminal
> prosecutions as well as private suits against anyone who uses a black
> Magic Marker to disable copy protection features built into some
> recent music CDs," Baker says. "At $25,000 a CD, that could be a very
> expensive experiment."
>
> There is a similar bill in the House of Representatives, titled the
> Intellectual Property Protection Act of 2002. But that version is akin
> to Biden's original bill and covers only "physical authentication
> features."
>
> Some lawyers who specialize in copyright law say they have no problem
> even with Biden's revised legislation.
>
> "I think this is filling in the gaps for intellectual property owners
> and keeping pace with technological change," says Megan Gray, a
> litigator in Washington DC who represents trademark and copyright
> owners. "It's entirely appropriate."
>
> Consumers soon will be offered more and more hardware devices that
> rely on electronic watermarks, digital signatures, or other
> cryptographic means to thwart piracy and improve security.
>
> Gray believes that forging a digital watermark or signature should be
> just as unlawful as forging a physical watermark or signature. "It's
> like taking a T-shirt that you've put a design on and then attaching a
> Disney hologram or the NBA championship hologram, distributing it, and
> giving people the impression that it's an authorized apparel item from
> the NBA or Disney," Gray says. "That's a deceptive practice that we
> have a long history of banning."
>
> While it's unclear what Biden hopes to accomplish with his new bill,
> it is clear that it's forward-looking: Consumers soon will be offered
> more and more hardware devices that rely on electronic watermarks,
> digital signatures, or other cryptographic means to thwart piracy and
> improve security.
>
> "The world is moving toward closed digital rights management systems
> where you may need approval to run programs," says David Wagner, an
> assistant professor of computer science at the University of
> California at Berkeley. "Both Palladium and TCPA incorporate features
> that would restrict what applications you could run."
>
> Microsoft originally applauded Biden's bill when it covered only
> physical counterfeiting, saying in a press release in April that it
> closes "a significant gap in federal protection of copyrighted works
> including software." Current federal law covers only "counterfeit
> labels," not physical holograms or other packaging material.
>
> But Microsoft indicated on Friday that it had problems with Biden's
> revisions. "Those issues, from our perspective, highlight the reason
> why we support the legislation as it was originally written," said
> spokesman Jon Murchinson.
>
> Filling a gap in the DMCA?
>
> Dan Burk, who teaches intellectual property law at the University of
> Minnesota, says that Biden may have revised his bill to pick up where
> the controversial 1998 Digital Millennium Copyright Act (DMCA) left
> off.
>
> Burk says that if Biden's proposal were to become law, it would be "a
> real problem" for researchers working on steganography, a technique
> used to conceal information in computer files. "This bill doesn't say
> 'digital watermark' but the language about numbers, codes, and symbols
> may be broad enough to cover steganography, which suggests that it was
> altered in an attempt to plug a hole left in the original DMCA," Burk
> says.
>
> Biden might revise his proposal before it's sent to the Senate floor
> for a vote, and the bill is not guaranteed to be enacted into law this
> year. There's a simple reason for that: Congress only has about four
> or five weeks left before it's scheduled to adjourn so politicians can
> go home and campaign before the November elections.
>
> But in an environment where politicos are more worried about
> campaigning against copyright thieves than about carefully weighing
> the impact that new laws have on technology, don't expect caution to
> prevail. "Copyrights mean nothing if government authorities fail to
> enforce the protections they provide intellectual property owners,"
> Biden said in April. "The criminal code has not kept up with the
> counterfeiting operations of today's high-tech pirates, and it's time
> to make sure that it does."
>
> Biography
>
> Declan McCullagh is CNET News.com's chief political correspondent. He
> spent more than a decade in Washington, D.C., chronicling the busy
> intersection between technology and politics. Previously, he was the
> Washington bureau chief for Wired News, and a reporter for Time.com,
> Time magazine and HotWired. McCullagh has taught journalism at
> American University and been an adjunct professor at Case Western
> University.
>
> ---
>
> James Love/KEI, June 15: Damages, Injunctions and Transparency key
> issues in ACTA negotiations
> > http://www.keionline.org/blogs/2009/06/15/thoughts-acta-negotiations/
>
> June 12: Joint Statement: Anti-Counterfeiting Trade Agreement
> Continuing
> > http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/=
press-release-communique.aspx
>
> June 12: Ambassador Ron Kirk Announces Plan to Move Forward With the
> Negotiation of the Anti-Counterfeiting Trade Agreement (ACTA)
> > http://www.ustr.gov/about-us/press-office/press-releases/2009/june/amba=
ssador-ron-kirk-announces-plan-move-forward-negot
>
> Michael Geist: U.S. Report Says ACTA Deal Gaining Steam
> > http://www.michaelgeist.ca/content/view/2978/125/
>
> Michael Geist: Is ACTA the New WIPO?
> > http://www.michaelgeist.ca/content/view/2318/125/
>
> ---
>
> Some Released/Leaked/Discovered Documents:
>
> US Trade Representative on ACTA
>
> > http://www.ustr.gov/trade-topics/intellectual-property/anti-counterfeit=
ing-trade-agreement-acta
> > http://www.ustr.gov/about-us/press-office/press-releases/2009/april/-of=
fice-us-trade-representative-releases-summary-an-0
>
> Summary of Key Elements Under Discussion
> > http://www.ustr.gov/sites/default/files/uploads/factsheets/2009/asset_u=
pload_file917_15546.pdf
>
> Intellectual Property Rights Experts Group
> > http://www.apec.org/apec/apec_groups/committee_on_trade/intellectual_pr=
operty.html
>
> ---
>
> Proposed US ACTA multi-lateral intellectual property trade agreement
> (2007)
> > http://wikileaks.org/wiki/G-8_plurilateral_intellectual_property_trade_=
agreement_discussion_paper
>
> Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement
> > http://file.sunshinepress.org:54445/acta-proposal-2007.pdf
>
> Business Perspective on Border Measures and Civil Enforcement
> > http://www.ipjustice.org/wp/wp-content/uploads/acta-brief-enforcement-2=
008.pdf
>
> ---
>
> Information/Action Pages on ACTA:
>
> > http://ipjustice.org/wp/campaigns/acta/
> > http://www.eff.org/issues/acta
> > http://www.fsf.org/campaigns/acta/
>
> EFF Statement
> > http://www.eff.org/files/filenode/acta/EFF_ACTA_submission_032108_0.pdf
>
> IP Justice White Paper
> > http://ipjustice.org/wp/2008/03/25/ipj-white-paper-acta-2008/
>
> Coalition Statement
> > http://www.ipjustice.org/wp/wp-content/uploads/Coalition_ACTA_Comments_=
USTR_Sept2008.pdf
>
> DFAIT's Consultation
> > http://www.michaelgeist.ca/content/view/2898/125/
>
> CIPPIC Statement
> > http://www.cippic.ca/uploads/CIPPIC_LT_DFAIT-ACTA-30%20April%2008.pdf

--

RIAA is the RISK!  Our NET is P2P!
http://www.nyfairuse.org/action/ftc

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://realmeasures.dyndns.org/cc

I reserve no rights restricting copying, modification or distribution
of this incidentally recorded communication.  Original authorship
should be attributed reasonably, but only so far as such an
expectation might hold for usual practice in ordinary social discourse
to which one holds no claim of exclusive rights.