DVD Cases: Help by Commenting to Feds on DMCA

Paul Burchard writes "The Copyright office is requesting comments by Feb. 10, 2000, on how broadly to interpret the exemptions in the Digital Millennium Copyright Act (DMCA) to its provisions against circumventing copy-protection technologies. As these features of the DMCA have been cited by lawyers from both sides in the DeCSS cases, the interpretation of the exemptions appears to still be up for grabs -- your comments could make a difference." Get involved and do this now.

Help

Could someone post their letter here so those of use who are not the best writers or just don't have as much info on this case can get an idea of what should go into these comments? I'd like to help but I'm not sure exactly what would be the most effective way to do it (unless "DeCSS rules!" counts as a good comment...)

Join the EFF

You can also help a lot by giving a donation to the EFF. They are playing a big part in the legal defense for DeCSS distribution.

Important how-to note from defendant

The DVD case going on in New York is putting the DCMA to the test. We've already lost round one--the preliminary injuction was granted as all of you read.

This case has more significant ramifications than the California case that I'm involved with.

Please read the OpenDVD advocacy how-to at http://www.opendvd.org/advocacy.html [opendvd.org]

Flamers... please skip the rest of this message. We don't want your help.

The federal government is accepting comments via email at [e-mail] [mailto]. Use reason to argue why reverse engineering must be allowed for the purposes of interoperability.

The most obvious reason is that it promotes competition. It also empowers consumers.

Here's a summary of exactly what they are accepting comments on...


SUMMARY: The Copyright Office of the Library of Congress is preparing
to conduct proceedings to make recommendations in accordance with
section 1201(a)(1) of the Copyright Act, 17 U.S.C. 1201(a)(1), which
was added by the Digital Millennium Copyright Act and which provides
that the Librarian of Congress may exempt certain classes of works from
the prohibition against circumventing a technological measure that
controls access to a copyrighted work. The purpose of this rulemaking
proceeding is to determine whether there are classes of works as to
which users are, or are likely to be, adversely affected in their
ability to make noninfringing uses if they are prohibited from
circumventing such technological measures. This notice requests written
comments from all interested parties, including representatives of
copyright owners, educational institutions, libraries and archives,
scholars, researchers and members of the public, in order to elicit
information and views on whether noninfringing uses of certain classes
of works are, or are likely to be, adversely affected by such
prohibition.

Addresses to send comments to

Addresses to send comments to:

The purpose of this rulemaking proceeding is to determine whether there are classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses if they are prohibited from circumventing such technological measures. This notice requests written comments from all interested parties,

If you are going to respond by e-mail, here [mailto] is the address of the OGC.

If you are going to use snail mail, comments should be addressed to:

David O. Carson, General Counsel
Copyright GC/ I&R, PO Box 70400
Southwest Station, Washington, DC 20024.

Never knock on Death's door:

Please Please PLEASE

Show some sanity! Write reasonable and calm letters. Do NOT flame. This is not your chance to rant about the evils of Copyrights and such. Flaming and generally being a jerk will get us nowhere, in fact it will probably hurt the cause more than you can imagine.

Read the Advocacy FAQs. Proofread you letter. Get someone else (hopefully someone who disagrees with you) to read and comment on it. Having a flood of flamers attack the Copyright agency could be the worst disaster possible for the DeCSS case.

Once again. Please, show some sanity and some respect. Write well reasoned and informative letters. DO NOT FLAME.

--Nick

Re:Important how-to note from defendant

Before anyone sends e-mail to the Copyright Office, please visit the link at the top of the story. There are restrictions on the format of submissions. Namely, they must by MIME attachments of PDF, Word 7 (or earlier) or WordPerfect 7 (or earlier) files. A text e-mail may not be enough.

--

Slasdotted. Mirror here.

http://www.sharedlib.org/DMCA_RFC.txt [sharedlib.org]

Bureaucratic Policy Does Not Affect Court

I'm not sure if these comments will help as much as we might like. Federal bureaus establish guidelines as a practical way to put Federal laws into effect. The court would only pay attention to those rules if they had been in place long enough to constitute "common practice." And even then, the court could rule either that the law was bogus, or that the rules were.

Bureacratic guidelines are not law.

Since the Copyright Office hasn't even established the guidelines, they should not affect the judge's ruling. The judge might pay attention to strong public sentiment, but I believe the judge would be more likely to feel that, if the public wants the law changed (and the judge thinks the existing law is fine), then the public should vote for new representation.

The only way the comments would help is as evidence the EFF [eff.org] could use in court that DeCSS's intent is not piracy, but playback of legitimate content.

Talk on their level

Remember, these are not geeks we are talking to. Some of these people are smart (but not on computers), and others are stupid. (I also know some stupid geeks, so the score is even) You need to talk to their level.

I strongly recomend analgies that they understand. For instance, I bought a manual for my car published by one "Haynes" company. For those who don't know, this company buys a car, and takes it apart. Point out to the beurocrats that they are reverse engineering and that any decision to prohibit reverse engineering computers must also prohibit reverse this company from reverse engineering cars.

If anyone else can come up with good examples, please post them. It would be nice if /. would then find the best of the best for anouther artical, but that might be asking too much.

While e-mail is okay, snail mail is better, so spend some money on stamps.

How best to state your case

I think the best way to state your case here (supporting DVDs or any medium, we'll stick to DVDs for this message) would be to make direct use of the DMCA's wording.

First, you can attack the "effective" clause. The DMCA only prohibits circumvention of things that "effectively controls access". You can say that the DVD encryption wasn't very effective to start with, though this is not a very strong argument.

You can encourage them to add DVDs to the exemption list because circumvention is necessary in order to gain fair use priviledges of the copyrighted work without using licensed players. The absolute denial of fair use priviledges without a license (or licensed player) from the DVD consortium should not be supported by law. Nowhere in the DMCA does it restrict fair use priviledges explicitly in this way.

Note that I am not a legal expert, etc, etc. Please read as much as you can from other posters and the various advocacy howtos to make sure your message is clear and makes a real positive difference.

Please READ the link above ...

and don't send plain email. you have to send a pdf file or a word document with sufficient information about yourself.

please write good,non-flaming,sophisticated comments and stick to the point. (the css case i 'an' example, not more - it's of course a very important one, at least for us.)

key point: this isn't copy protection

...so it's not a circumvention of copy protection.

It serves no use in preventing people from illegally making DVDs, VHS recordings, or other format conversions. The bits can be copied identically onto other DVDs (with the appropriate manufacturing equipment), the video signal from a DVD viewer is sufficient to create production-quality VHS recordings, and one can video capture entire DVD movies with cheap and easily available computer hardware.

The primary purpose of this encryption was not to prevent copying, but to restrict viewing.

That means only viewing hardware produced under licence, and only in approved regions.

This is reverse engineering for the purpose of breaking the monopoly on DVD viewing devices (whether hardware or software). And the act of reverse engineering was done outside the country, so the US legality of whatever was done to produce the this tool is irrelevant, only the legality of its use and distribution.

My comments

I am not a US Citizen, so I am not going to submit directly to that email. Nevertheless, I hope that my points will to the more intelligent American Slashdot readers, for them to think and submit if they agree,

Reverse engineering should be made totally legal. By reverse engineering, I refer to that done in a clean room, out of concern and respect for trade-secret and copyright holders. Whatever it is said, copyright is important, so we should bear in mind not to undermine it. (Subject to the legal restrictions of course. My finger to those who exploit IP/copyrights for their own selfish gain. e.g. Amazon 1-click nonsense).

Why should this be. Primarily becuase we live in a unfair world, where American businesses dominate a large part of the global economy. I think Americans should look beyond their shores and not see the world as people to exploit, but as partners, where there is great chance for mutual cooperation.

The point is that DMCA goes both ways. The US should not always assume that they will continue to be dominant players in all sectors of the economy. Neither should they wish to (It is unfair - no nation should have that great a burden to bear. :-) )

Today, someone in Norway reverse enginneers American technology, producing DeCSS. Someday, the tables are going to reversed. Is the US going to be a hypocritical and laughed at by the rest of the world when it decides to break their own laws?

Like it or not, the DMCA is going to be piece of international law. It is inevitable as we move towards a global, integrated economy. It is necessary and essential that the US sets a good example now, by upholding the principle of reverse engineering. For the reasons of competition, innovation and interoperability.

It might be look like that today, industries represented by the MPAA are getting the wrong end of the stick. But things will change. These businesses do not, and will not take the long-sighted view. They are short-sighted. They want to hold on to their dinosaur like hegemony. They want to extend it. The government of the US cannot allow itself to become subservient to these corporations.

Personally, I have always believed that the greatness of a country is measured by how well it treats firstly, its own people and then next other small countries. Get your act together!

Simple Letters won't cut it.

You must answer some or all of the questions posed in the request for comments for your letter to have any effect. Also, the questions will help focus your letters on the issues that are relevent to this situation. Here are the questions::


5. Specific Questions

The Office seeks comment on the following specific questions.
Persons submitting comments need not address all questions, but are
encouraged to respond to those as to which they have particular
knowledge or information. Persons submitting comments are encouraged to
submit concrete evidence, examples and data supporting their responses
to these questions. Such submissions will carry greater weight than
unsupported allegations and predictions.
In response to each question, persons submitting comments are
requested to distinguish between (a) their response with respect to the
current state of affairs, and (b) their response with respect to the
state of affairs that is likely to exist during the period between
October 28, 2000 and October 28, 2003. For example, in responding to
Question No. 3, persons submitting comments are requested to state (a)
what technological measures that effectively control access to
copyrighted works exist today, and (b) what new technological measures
that effectively control access to copyrighted works are likely to be
introduced between October 28, 2000 and October 28, 2003. In discussing
the state of affairs that is likely to exist during the period between
October 28, 2000 and October 28, 2003, persons submitting comments
should explain the basis for their projections.

A. Technological Measures

1. What technological measures that effectively control access to
copyrighted works exist today?
2. Do different technological measures have different effects on
the ability of users to make noninfringing uses? Can and should the
Librarian take account of those different effects in determining
whether to exempt any classes of works from the anticircumvention
provisions of section 1201? If so, how? In determining what constitutes
a class of works?

B. Availability of Works

3. How has the use of technological measures that effectively
control access to copyrighted works affected the availability of such
works to persons who are or desire to be lawful users of such works?
4. Are there specific works or classes of works that, because of
the implementation of such technological measures, have become
unavailable to persons who desire to be lawful users of such works? If
so, identify those works or classes of works and explain how they have
become unavailable.
5. Are there specific works or classes of works which, because of
the implementation of such technological measures, have become less
available to persons who desire to be lawful users of such works? If
so, identify those works or classes of works, explain the ways in which
they have become less available, and explain whether those works or
classes of works are also available in other formats to which such
technological measures have not been applied.
6. If there are works that are available both in formats to which
technological measures have been applied and in formats to which
technological measures have not been applied, to what extent can the
works in the latter formats substitute for the works in the formats to
which technological measures have been applied?
7. Are there works or classes of works that are available only
electronically and only in formats to which such technological measures
have been applied? If so, what are they?

C. Availability of Works for Nonprofit Archival, Preservation, and
Educational Purposes

8. Has the use of technological measures that effectively control
access to copyrighted works affected the availability of such works for
nonprofit archival purposes? If so, how? Are there specific works or
classes of works that have been affected in this respect? If so,
identify them, explain how they have been affected, and explain whether
those works or classes of works are also available in other formats to
which such technological measures have not been applied.
9. Has the use of technological measures that effectively control
access to copyrighted works created problems with respect to the
preservation of such works? If so, how? Are there specific works or
classes of works that have been affected in this respect? If so,
identify them and explain how they have been affected.
10. Has the use of technological measures that effectively control
access to copyrighted works affected the availability of such works for
nonprofit educational purposes? If so, how? Are there specific works or
classes of works that have been affected in this respect? If so,
identify them, explain how they have been affected, and explain whether
those works or classes of works are also available in other formats to
which such technological measures have not been applied.
11. For purposes of this rulemaking, in classifying works that are
to be exempted from the prohibition against circumvention of
technological measures that control access, should any classes of works
be defined, in part, based on whether the works are being used for
nonprofit archival, preservation, and/or educational purposes? (E.g.,
``new broadcasts'' may not be an exempted class of works, but ``news
broadcasts used in the course of face-to-face teaching activities of a
nonprofit educational institution, in a classroom or similar place of
instruction,'' may be an exempted class.) Explain why or why not.

D. Impact on Criticism, Comment, News Reporting, Teaching, Scholarship,
or Research

12. What impact has the use of technological measures that
effectively control access to copyrighted works had on the ability of
interested persons to engage in criticism, comment, news

[[Page 66143]]

reporting, teaching, scholarship, or research?
13. What impact has the use of technological measures that
effectively control access to copyrighted works had on the ability of
interested persons to engage in noninfringing uses of such works,
including fair use and activities permitted by exemptions prescribed by
law?
14. Are there specific works or classes of works with respect to
which the ability of interested persons to engage in criticism,
comment, news reporting, teaching, scholarship, or research has been
hindered because of the implementation of such technological measures?
If so, identify them, explain how such activities have been hindered,
and explain whether those works or classes of works are also available
in other formats to which such technological measures have not been
applied.
15. Are there specific works or classes of works with respect to
which the ability of interested persons to engage in noninfringing uses
has been hindered because of the implementation of such technological
measures? If so, identify them, explain how such activities have been
hindered, and explain whether those works or classes of works are also
available in other formats to which such technological measures have
not been applied.
16. For purposes of this rulemaking, in classifying works that are
to be exempted from the prohibition against circumvention of
technological measures that control access, should any classes of works
be defined, in part, based on whether the works are being used for
purposes of criticism, comment, news reporting, teaching, scholarship,
or research? Explain why or why not.
17. For purposes of this rulemaking, in classifying works that are
to be exempted from the prohibition against circumvention of
technological measures that control access, should any classes of works
be defined, in part, based on whether the works are being used in ways
that do not constitute copyright infringement, e.g., as fair use or in
a manner permitted by exemptions prescribed by law? Explain why or why
not.

E. Effect of Circumvention on the Market for or Value of Copyrighted
Works

18. In what ways can technological measures that effectively
control access to copyrighted works be circumvented? How widespread is
such circumvention?
19. Has such circumvention (or the likelihood of circumvention) had
any impact on the price of copyrighted works? Please explain.
20. Has such circumvention (or the likelihood of circumvention) had
any impact on the availability of copyrighted works? In particular
formats or in all formats? Please explain.
21. Has such circumvention had any other impact on the marketing of
copyrighted works? If so, please explain the impact and which works or
classes of works have been affected.
22. Do the answers to any of these questions relating to the effect
of circumvention on the market for or value of copyrighted works depend
upon the class of work? Please explain.

F. Other Factors and Questions

23. For purposes of this rulemaking, what criteria should be used
in determining what is a ``class'' of copyrighted works?
24. With respect to any adverse effect on use of or access to
copyrighted works that has been identified in response to any of the
preceding questions, is there an explanation for the adverse effect
other than the presence of technological measures that effectively
control access to copyrighted works?
25. Has the use of technological measures that effectively control
access to copyrighted works resulted in making copyrighted works more
widely available? Please explain.
26. Has the use of technological measures that effectively control
access to copyrighted works resulted in facilitating lawful uses of
copyrighted works?
27. Are there other factors that should be taken into account? If
so, please identify and address those factors.
28. What other comments, if any, do you have?
29. Do you wish to testify at a hearing to be conducted by the
Copyright Office in connection with this rulemaking?

Reverse engineering

How is this DeCSS different from any number of prior /LEGAL/ reverse engineering attempts?

Well, for one they are giving away the product of their reverse engineering...Reverse engineering has a precedent...but giving the results away might not

should it matter?

Jazilla.org - the Java Mozilla [sourceforge.net]

Access to copyrighted work

I am reminded of a recent "Ask /." discussion [slashdot.org] about whether techies understand legal issues as poorly as lawmakers understand technical issues. One advantage techies have in understanding the law is that all terms that are not standard legalese must be explicitly defined (declared?) at some point in the statute. My interest is particularly aroused by this bit:

(B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

Here, the lawmakers have attempted to generically describe encryption or copy-protection schemes without actually mentioning any such scheme explicitly. I suppose this might be done so that future schemes currently not foreseen by the current state of the art may also be covered by the law. But haven't they shot themselves in the foot here? All digitally encoded information, be it music on a CD or a movie on a DVD, requires "the application of information, or a process or a treatment" in order to present the information to the user in its intended form. Presumably when one slips, say, a CD into the stereo one is initiating the decoding of the digital information sitting on it with the authority of the copyright holder. (They do want you to play the music, right?) To extract the information, i.e. play the CD, in a manner not authorized by the copyright holder - such as using it in a public performance without payment of suitable royalties - is already illegal by existing copyright law.

Copy-protection schemes merely add another level of encoding to the information, requiring different information to be applied in order to extract it, but not differing qualitatively in that the information needs to be decoded regardless. So as far as I can see, this section of the code adds no protections whatsoever to copy-protected or encrypted information.

But in order for the lawyers to see that, they have to be able to understand how the law as phrased relates to the processes they are regulating. It's clear to me that they do not.

my letter says:

here is verbatim (minus the personal info, which if you really want it, can be dug up from the loc.gov site when they post my letter...) my letter to the loc, for your perusal, and for you to steal ideas from. comments on what i sent would be cool, too: although if there's something wrong with it...well, its already been sent. heh.

------------------>8 cut here---------------------

21 January 2000

A Comment.

Librarian: I seek to comment on questions 3, 4, 18, 21 and 22 posed in DOCID:fr24no99-23, "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" with regard specifically to the class of copyrighted works known as DVD (Digital Versatile Disk).

DVD's are a popular new format for the distribution and playback of motion pictures. The DVD format is controlled by a standards organization known as the DVD Consortium. To ensure and safeguard against unlawful duplication, the content has been encrypted; only a DVD player (a console unit or computer software) authorized by the DVD consortium is allowed access to a decryption key. This key is necessary for playback.

Computer software for the playback of DVDs is widespread and common for both Apple Macintosh computers and PC's running Microsoft Windows. However, there is currently no software for several other PC based operating systems: Linux, BSD, Solaris, OS/2, and several others, nor do any companies with a license from the DVD Consortium have any plans for creating such software. Thus, there is a significant population of computer users who cannot lawfully use DVD technology, namely those running Linux, BSD, Solaris, OS/2 or any other non-Microsoft Windows operating system.

It is my opinion that those who reverse engineer DVD encryption systems to ensure interoperability of DVD products on officially unsupported platforms should be exempt from the clauses in the DMCA prohibiting circumvention of access control technologies. I have in mind, of course, the authors of deCSS, software designed to defeat DVD encryption, and the LiViD project, a group working on creating a DVD player for Linux (which relies on deCSS, and is intended for legal viewing of properly acquired DVDs).

This leads into question number eighteen, twenty-one and twenty-two: with the widespread availability of deCSS, nearly anyone with a computer and some knowledge of computer programming may decode a DVD. To this point DVD encryption has been very weak; this of course facilitated its circumvention. Even if it had been strong, though, it would have been circumvented eventually: no security is perfect. Suppose, for example, that DVDs have been given newer, incredibly strong encryption technologies that ensured only licensed players could decrypt a DVD: it could still be circumvented by merely tapping the cable that connected a player to a television: this signal could be captured and recorded onto another format. Take also into account that most motion pictures are released onto VHS tapes: this format has no built in security at all, yet motion picture producers still use the format widely, because it is popular. Thus, even if copying DVDs becomes widespread, I dare opine that sales of motion pictures in any format will not be harmed.

Thus, I posit for your consideration, that access control technologies are in the end potentially harmful to consumers, as it can, under certain (and not uncommon) circumstances limit availability of copyrighted works to those who wish to lawfully obtain them, as evidenced by the problems with DVDs. Further, I posit that a lack of access control technology has not hurt copyright holders in the past: if illegal copying of VHS cassettes or CD audio disks had been widespread enough to cut deeply into their sales, entertainment companies would have dropped the format for something different: neither VHS nor CD format have been dropped, nor are there publicly available plans to do so in the foreseeable future. Therefore, I further argue that any circumvention of access control technology does not and cannot harm producers of copyrighted content; further, I conclude that the availability of access control circumvention is a boon to the consumer, allowing for greater choice of formats and an insurance that any given format will be interoperable with any and all hardware and software that are capable of interoperating with said format.

-------------->8 cut here-----------------

Just like Southpark: "I AM ABOVE THE LAW"

yes, you wrote the software all by yourself
(but we'll say you stole trade secrets)

yes, you did it without signing an NDA
(but we'll say the shrinkwrap license counted)

yes, you did it without stealing code
(but we'll say you illegally reverse engineered it)

yes, you did all this solely for the purpose of viewing dvds
(but we'll say you did all this solely for piracy)

yes, you purchased your dvd discs and drive legally
(but we'll say that your fair-use rights don't count)

yes, you have never created an illegal copy of any of our titles
(but we'll say that you are a thief and a pirate)

we are above the law because we have more money than you

we control your courts and we write your laws

democracy, freedom, liberty... not for you...

Open source community: create an ad banner!

How many people will see this article two days from now, after it has faded into the archives of "old slashdot news"? I suspect that there will be a bombardment of comments to the copyright office today that will trickle off as we near the deadline.

I propose that an ad banner should be created, pointing to a central source for advocacy, (http://www.opendvd.org [opendvd.org] maybe?) ... Containing by then a copy of this story, an advocacy mini-howto, and a link to the copyright office comment box. If this ad were to run on the Andover network of sites (and maybe also be picked up by traffic-heavy sites with opendvd-friendly admins as well... linux.com [linux.com]?), we might get more thurough feedback on this important issue, even after the slashdot effect dies away.

What do you think?

-Mike

The key issue - tying

The use of copy protection to enforce tying, i.e. requiring you to buy a specific player to play content, is generally illegal under the antitrust laws. Thus, attempts to use the copyright laws to enforce a tying arrangement are improper. This relates not only to CSS, but to such issues as whether you can legally sell a player for Playstation games, or a player for proprietary streaming content. It's important to win this one, or we're going to see a whole generation of "authorized hardware", "authorized software", and an associated licensing monopoly. The implications for the Linux world are obvious.

The "reverse engineering" exemption in the DMCA must be interpreted to permit any activity with the effect of overcoming illegal tying by content vendors.

I suggest mentioning tying when commenting on this issue. Tying arrangements, sometimes called "tie-in sales", where you have to buy something you don't want to get something you do want, are the issue monopolies usually lose antitrust cases on. IBM lost this one several times (compatible mainframe peripherals) AT&T lost (long distance), and the movie industry lost (forcing "B" movies on theater owners). So there's good history here to remember and exploit.

key point: it is access protection

Section 1201(a)(1) of the DMCA (the section used to sue the DeCSS distributors) explicitly is not about copying but about access control. Obviously there is a big difference, since copy protection is the entire historical purpose of copyright law, not access protection.

Private fair use puts some reasonable limits on copying, but private access to legally purchased copyrighted materials is a fundamental right and the DMCA restricts it by making the tools to achieve that access illegal.
--