[Upd-discuss] CPSR comment concerning technological measures on copyrighted works
Andy Oram
andyo@oreilly.com
Fri, 31 Mar 2000 09:18:56 -0500 (EST)
Technological prohibitions desired by movie, music, and software
vendors appear in a number of laws and official documents, including
an international WIPO treaty on copyright. Congress, however, inserted
a regular review of such prohibitions in its 1998 copyright act. The
EFF has been encouraging people to submit comments, so I wrote one
with the help of many CPSR people. The key points are these four
suggestions, which the comment expands on:
1. Section 1201's ban on the circumvention of technological measures
should not be used to suppress the production of a competing or
alternative compatible device.
2. The Section should not prevent users who have lawfully purchased or
licensed the product from choosing a device or medium to view a
work other than ones approved by the copyrighted work's vendor.
3. The Section should not prevent users who have lawfully purchased or
licensed the product from accessing that product in new ways for
their own innovative purposes.
4. The Section should not be used to suppress the use of material for
criticism, comment, news reporting, teaching, scholarship, or
research.
This piece can be freely circulated so long as it is intact.
Andy
---
http://www.cpsr.org/cpsr/nii/cyber-rights/web/copyright_section_1201.html
[1]Andrew Oram
Member, Computer Professionals for Social Responsibility
Address:
[2]Computer Professionals for Social Responsibility
P.O. Box 717
Palo Alto, CA 94302-0717
fax (national office): 650-322-4748
telephone (Andrew Oram): 617-499-7479
email: [3]andyo@cpsr.org
Reply comment
Concerning the Copyright Office's Rulemaking on Exemptions from Prohibition on
Circumvention of Technological Measures that Control Access to Copyrighted
Works.
March 31, 2000
[4]Computer Professionals for Social Responsibility is pleased to have
the opportunity to submit this reply comment concerning the Copyright
Office's [5]Rulemaking on Exemptions from [6]Prohibition on
Circumvention of Technological Measures that Control Access to
Copyrighted Works.
Four suggestions for clarifying Section 1201
We support and affirm the comments of the [7]Electronic Frontier
Foundation, the [8]American Library Association and related
organizations, the [9]Association for Computing Machinery, the
[10]Media Laboratory at Massachusetts Institute of Technology, and the
[11]National Association of Independent Schools. We will respond to
several other [12]comments in this reply. In addition, we offer three
additional suggestions for Copyright Office rulings, which could be
positioned as clarifications of the law:
1. Section 1201's ban on the circumvention of technological measures
should not be used to suppress the production of a competing or
alternative compatible device.
2. The Section should not prevent users who have lawfully purchased or
licensed the product from choosing a device or medium to view a
work other than ones approved by the copyrighted work's vendor.
3. The Section should not prevent users who have lawfully purchased or
licensed the product from accessing that product in new ways for
their own innovative purposes.
4. The Section should not be used to suppress the use of material for
criticism, comment, news reporting, teaching, scholarship, or
research.
CPSR is a public-interest, non-profit, grassroots organization that was
founded in 1983 and currently has over 1300 members among the computing
and other professions in the United States. Our mission is to educate
the public and policy-makers concerning the appropriate use and scope
of computers and related technologies.
Our comments are relevant to question 12 of your [13]inquiry concerning
the impact of technological measures "on the ability of interested
persons to engage in criticism, comment, news reporting, teaching,
scholarship, or research," and question 13 concerning the impact of
technological measures "on the ability of interested persons to engage
in noninfringing uses" of copyright works. The comments are also
relevant in a more general sense to the questions in section D of your
request, Impact on Criticism, Comment, News Reporting, Teaching,
Scholarship, or Research, and particularly question 17 that asks how
works "are being used in ways that do not constitute copyright
infringement."
Section 1201 cited by filmmakers and recording device manufacturers to suppress
competition
In December 1999, programmers reverse-engineered the DVD (Digital Video
Disk or Digital Versatile Disk) format and posted to the Internet some
code called DeCSS that would allow developers to build devices that
could retrieve DVD content. Since this case was discussed in detail by
many comments submitted on the first round (notably the [14]M.I.T.
Media Lab and the [15]Computer & Communications Industry Association),
we will not repeat its whole history but only point out certain aspects
that illustrate the dangers of misusing Section 1201.
We will argue that the suppression of reverse-engineered code is more
likely to harm competition and innovation than the rights of copyright
holders. We note especially that this invocation of Section 1201 is
unfair not only to competitors, but to lawful users, whose right of
fair use should allow them to play the DVD on any device. In place of a
special exemption for playing DVDs on Linux, as requested by the
Computer & Communications Industry Association, we offer more generally
the first and second suggestions at the beginning of this comment.
Devices for making unauthorized videos from DVDs existed long before
DeCSS, undermining the argument that its "primary purpose" was to
facilitate unauthorized copying. Rather, the people who showed interest
in the software were those developing new software to play DVDs on the
Linux operating system, which is currently unsupported by any licensed
DVD manufacturer.
Thus, reverse engineering, a classic technique of software development
which is generally protected by law, was used in this case for exactly
the purpose that is protected under Section 1201(f) of the DMCA: "to
achieve interoperability of an independently developed computer
program." The courts unfortunately did not honor this exemption when
upholding the claim in the DVD Copy Control Association's complaint
that the program "enables users to illegally pirate DVD videos." The
DVDCCA and other organizations representing filmmakers and recording
device manufacturers have carried on a broad campaign since then to
expunge the software from Internet sites worldwide.
Because the decryption program was implemented purely in software, it
raises a basic conceptual problem with Section 1201. The "primary
purpose" language has some meaning in relation to physical devices,
because their application is usually fairly fixed. Software, however,
is far more malleable; a technique defined for one application may
prove equally useful in a completely different application. If
manufacturers start to apply the "primary purpose" argument to
software, the clause's scope becomes arbitrarily large and a huge range
of useful technologies can be prosecuted under it. While we have no
particular language to recommend to the Copyright Office, given that
the "primary purpose" clause is in the law, we hope both the Copyright
Office and the courts seek solutions to this problem. We will take up
the problem again in the next section of our comment.
Without public debate, manufacturers of new media and devices have
decided to undermine the rights of first sale and fair use. For
instance, Sony Computer Entertainment America's [16]comments claim that
"Access to copyrighted Playstation(R) games is permitted only through use
of the access control coding in the PlayStation(R) console and the CD-ROM
that embodies the videogame." Along the same lines, the Motion Picture
Association of America's [17]comments state, "Access controls embodied
in the work itself also commonly function in tandem with the hardware
used to access the work, so that a work may be made accessible on a
specific machine, or a specified category of machines." Aside from some
unsubstantial claims that technological control measures serve
customers (such as by preventing the sale of games in a country where
the language used is not widely spoken) Sony claims to need these
measures to prevent games from being copied. In other words, they wish
to avoid the burden of finding and bringing violators to court as
regular publishers in traditional media must do.
We believe that the convenience of the Sony Corporation and motion
picture studios--who have ample resources for tracking down and
prosecuting copyright infringers the traditional way--should not be
allowed to outweigh the damage caused by the effective abrogation of
customers' traditional rights, including the effects of such abrogation
on innovative uses of artistic and information materials and on the
availability of competing or compatible products.
Time Warner's [18]comments compare the circumvention of technological
measures to stealing a book from a store. Leaving aside the difference
between making a copy of a book and stealing a book, overcoming
technological measures in the cases presented in this comment is more
like choosing to underline passages in a book with a pencil. The law
should not back up the insertion of digital techniques whose effect is
equivalent to making it impossible for the customer to use a pencil on
a work, or techniques whose effect is equivalent to forcing a customer
to buy a particular stylus for the task, perhaps one that uses only a
special ink that vanishes after a few hours. Historically, while strict
licenses have been upheld for multiple site licenses purchased by large
organizations, courts in cases involving mass-market software have
ruled that users still maintain traditional rights such as first sale
and fair use.
Emerging dangers that may involve Section 1201
Some recent legal cases, while they do not directly involve Section
1201, raise dangers that the Copyright Office may find it timely to
address. It is all too likely that Section 1201 will be involved in
such cases in the future, with the effects of suppressing comment and
criticism of consumer products, or of punishing customers for
exercising the traditional rights of fair use and first sale.
Several incidents involving legal threats (not all of which were
actually pursued in court) involve a fairly frequent practice among
advocates of free speech wishing to document arbitrariness and
incompetence in software filters that claim to block computers from
accessing Web sites inappropriate for children. Though software filters
have been installed by numerous institutions such as public libraries
and public schools, in addition to individual consumers, the actual
sites being blocked are rarely known to any customers. The activities
of the free speech advocates remedy that situation by publishing lists
of blocked sites. A perusal of these lists demonstrate the value of the
critics' activity, due to the high incidence of incorrect and biased
decisions found in software filtering products.
Sometimes the critics obtain the lists of blocked sites through reverse
engineering. The endeavor of the free speech advocates is squarely in
the public interest and fails cleanly into categories of news
reporting, product reviews, and criticism.
(We will not comment any further on the clause concerning reverse
engineering in Section 1201, because in this section of the comment we
are not discussing the development of compatible works. Similarly, we
will not comment on the part of Section 1201 dealing with encryption,
because that section was drawn up to protect computer science research
in the field of encryption rather than the use of encryption for other
ends.)
Rather than deal with questions by customers and external critics, some
companies making software filters resort to various legal actions,
often invoking copyright, to punish whistle-blowers and suppress
further distribution of the uncovered materials. We are concerned that
copyright is being invoked on material that is not distributed for
public view, but exists only as an internal database, and we are
worried that Section 1201 may be used in the future as a weapon for
suppressing information and debate on issues affecting consumers and
the general public. In relation to the Copyright Office request's
question 23 ("what criteria should be used in determining what is a
`class' of copyright works") we offer the brief reminder that
publishing selected facts from a database, without copying the form or
expression, is not subject to copyright.
Imagine that a company loses a lawsuit for a faulty product that caused
deaths or severe damage, but manages to have the court records sealed
as part of the settlement. Imagine further that they have to report
some details about the case in an annual report. When the report is
distributed through standard channels, an enraged shareholder can
legally pass it to a reporter and the reporter can quote it. But in the
future, a company may choose to email the report, lightly encrypted,
and claim a violation of its "technological self-help protection
measures" when the truth hits the newsstands. The Copyright Office can
do a great deal to restore copyright law to its intent--that of
protecting copyrights--by making the third and fourth rulings we asked
for at the beginning of this comment.
The widely-publicized [19]lawsuit by the Recording Industry Association
of America against [20]Napster does not involve Section 1201. But since
the case involves technology used for infringement rather than the act
of infringement, its implications are worth considering in relation to
Section 1201.
Napster is simply a combination of a directory service (a kind of
software distributed by such major corporations as Microsoft, Netscape,
and Novell) and a file transfer protocol (a kind of software that was
the first application ever invented on the Internet; even the World
Wide Web is based on a HTTP, a file transfer protocol of moderate
sophistication). A challenge to Napster, based simply on the proclivity
of its users to breach copyright, is a challenge to the basic
technologies on which the Internet is based. Almost any Internet
protocol and product, new or old, could be used for copyright
violations; here again the "primary purpose" language of Section 1201
presents dangers to innovation.
We do not challenge the doctrine that copyright should apply to online
works, just as it has applied to works in traditional media. Nor do we
deny that widespread copying takes place, online as elsewhere. But we
object to the misuse of copyright law to remove traditional consumer
and research rights. If not reigned in by the Copyright Office and
other branches of government, the cases discussed in this comment could
lead to a safe haven for exploitative hoarders of information and
culture.
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[21]Back to Cyber Rights home page.
References
1. http://www.oreilly.com/~andyo/
2. http://www.cpsr.org/
3. mailto:andyo@cpsr.org
4. http://www.cpsr.org/
5. http://lcweb.loc.gov/copyright/1201/anticirc.html
6. http://www.loc.gov/copyright/1201/1201a1text.html
7. http://www.eff.org/ip/DMCA/20000217_eff_dmca_comments.html
8. http://lcweb.loc.gov/copyright/1201/comments/162.pdf
9. http://lcweb.loc.gov/copyright/1201/comments/171.pdf
10. http://lcweb.loc.gov/copyright/1201/comments/185.pdf
11. http://lcweb.loc.gov/copyright/1201/comments/032.pdf
12. http://lcweb.loc.gov/copyright/1201/comments/
13. http://lcweb.loc.gov/copyright/fedreg/64fr66139.pdf
14. http://lcweb.loc.gov/copyright/1201/comments/185.pdf
15. http://lcweb.loc.gov/copyright/1201/comments/224.pdf
16. http://lcweb.loc.gov/copyright/1201/comments/190.pdf
17. http://lcweb.loc.gov/copyright/1201/comments/209.pdf
18. http://lcweb.loc.gov/copyright/1201/comments/043.pdf
19. http://www.riaa.com/piracy/press/031300.htm
20. http://www.napster.com/
21. http://www.cpsr.org/cpsr/nii/cyber-rights/index.html