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Debunking (some) DMCA Myths 425

An anonymous reader writes "C|Net's is running an article under their Perspectives section about some of the myth and hype surrounding the DMCA. The author talks about how the EFF is exaggerating the danger from the DMCA. The author mentions that although "the DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies", groups like the EFF are not much better, engaging in "fear-mongering" and scare tactics to increase opposition."
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Debunking (some) DMCA Myths

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  • Lawrence Lessig (Score:4, Interesting)

    by sllort ( 442574 ) on Monday August 19, 2002 @12:48PM (#4098399) Homepage Journal
    Ok, first of all, if you haven't watched Lawrence Lessig's OSCON speech Free Culture [], now is probably a good time.

    Having said that, Lawrence mentions a legal battle that took place in England in the 1700's in an attempt to get Shakespeare into the public domain. Originally, English publishers managed to win a court case which said that they owned a perpetual copyright over Shakespeare.

    Five years later they lost, and Shakespeare entered the public domain.

    Rosen, Valenti et al are students of history. They know that the door swings both ways. I believe their thinking is that they should grab as much land as they are allowed to grab, so that when the door swings back, maybe it will be left leaning a bit to their side.

    Personally I hope it swings back and flattens their faces, but we shall see.

    • Re:Lawrence Lessig (Score:5, Insightful)

      by kawika ( 87069 ) on Monday August 19, 2002 @01:22PM (#4098692)
      Yes, maybe 10 years from now we'll all look back on this and laugh at how Valenti thought he had us on the rocks. But until the DMCA has been struck down it acts as a great big wet blanket to free speech and fair use. I wish we could just get a test case into court and get this over with, but Valenti et al would prefer to use threats since the court case may not go their way.

      In the article, Kerr is quoted as saying "If the public believes that the DMCA is stopping Professor Felten and other researchers from conducting legitimate research, then that is a major victory for opponents of the law." Well, the public believes that because it is true. Felten wanted to present a paper and was told by his employer not to do it. No matter what that article says about lawsuits being unlikely to succeed, the mere threat of a DMCA lawsuit seems to be enough when you're dealing with deep pockets.

    • Re:Lawrence Lessig (Score:5, Interesting)

      by llywrch ( 9023 ) on Monday August 19, 2002 @02:08PM (#4099027) Homepage Journal
      > Rosen, Valenti et al are students of history. They know that the door swings both ways.

      True. A little bit of reading in legal history will uncover many examples where a law passed to change the existing legal opinion was limited by the existence of a body of precedent. (The examples I can think of off the top of my head are the law of privacy -- which has been incorporated into common law in every US state except for New York, where even the passage of a law defining a right to privacy has been limited by their court system; the other example is Canada's Bill of Rights, which their Supreme Court has held is limited by pre-existing common law.)

      Unfortunately, there is little legal precedent to extend or limit DMCA. Neither the US Supreme Court nor any of the State courts have shown whether they embrace the corporist ideas of ``intellectual property" or Lessig's ideas of public domain.

      > I believe their thinking is that they
      > should grab as much land as they are allowed to grab, so that when the door swings back, maybe it will be left leaning
      > a bit to their side.

      As the saying goes, possession is nine-tenths of the law. Ask any landlord who forceably evicts a tenant 6 months behind in the rent.

  • by antirename ( 556799 ) on Monday August 19, 2002 @12:48PM (#4098403)
    The EFF is taking a hard line on this. Do you blame them? Do you consider their views extreme? In this case, I sure as hell don't. Saying "this law isn't really THAT bad" is the same as saying "the camel only has its head in the tent".
  • really? (Score:3, Interesting)

    by psychopenguin ( 228012 ) on Monday August 19, 2002 @12:48PM (#4098405)
    Someone want to tell Dmitry Sklyarov that this is just a bunch of FUD and that the DMCA isn't really a threat?
    • Re:really? (Score:3, Insightful)

      by jayhawk88 ( 160512 )
      Read the article. The author isn't trying to say the DMCA isn't a bad law, but that it does not hamper research, speeches, talks and the like as much as most of us think it does.

      Dmitry was involved with a for-sale product that defeated e-book copyright restrictions, which clearly falls under the jurisdiction of the DMCA.
      • Re:really? (Score:5, Insightful)

        by gosand ( 234100 ) on Monday August 19, 2002 @01:04PM (#4098550)
        Dmitry was involved with a for-sale product that defeated e-book copyright restrictions, which clearly falls under the jurisdiction of the DMCA.

        But what was he arrested for? He wasn't selling his product, he was giving a talk about his product. A product that was not illegal where he lives.

        • But what was he arrested for?

          Entering the country.

        • Re:really? (Score:5, Informative)

          by Stonehand ( 71085 ) on Monday August 19, 2002 @01:42PM (#4098824) Homepage
          He was a principal player of an enterprise engaging in commercial activity that was criminalized in the US, and that impacted a US company -- Adobe. Despite that, he entered the country voluntarily and demonstrated this activity. According to a DOJ press release, he is also the copyright holder on his program, so any distribution should be going on only with his full consent -- which is likely given the nature of his presentation.

          The program was also purchasable from within the United States from an server hosted in Chicago (again, within the US...). Payment was handled through an online service located with the United States.

          So, he was willingly distributing an illegal circumvention device within the United States, to Americans.
      • Re:really? (Score:4, Insightful)

        by Melantha_Bacchae ( 232402 ) on Monday August 19, 2002 @02:02PM (#4098963)
        jayhawk88 wrote:

        > Dmitry was involved with a for-sale product
        > that defeated e-book copyright restrictions,
        > which clearly falls under the jurisdiction of
        > the DMCA.

        Um, no.

        >> According to the company's website, the
        >> software permits eBook owners to translate from
        >> Adobe's secure eBook format into the more
        >> common Portable Document Format (PDF). The
        >> software only works on legitimately purchased
        >> eBooks and has been used, for example, by blind
        >> people to read otherwise-inaccessible PDF
        >> user's manuals, and by people who want to move
        >> an eBook from one computer to another (just
        >> like anyone can move a music CD from the home
        >> player to a portable or car).

        So the software was only for the legitimate purchasers of eBooks, and primary purpose of the software was to allow them to move the eBook to their other machine or to allow a blind person to read the eBook they bought.

        The article states:
        >> Start with the text of the DMCA itself. It
        >> says, "No person shall manufacture, import,
        >> offer to the public, provide, or otherwise
        >> traffic in any technology, product, service,
        >> device (or) component" that is primarily
        >> designed to bypass copy-protection technology.

        According to the article, the DMCA should not have applied to Dmitry. Prior to the DMCA, under fair use laws, Dmitry's software would have been as legal here as in Russia. Why was Dmitry even in jail?

        The answer: it doesn't matter what the DMCA really says. What matters is what a company like Adobe thinks it says. What matters is what a company like Adobe can convince the FBI it says. What matters is what a company like Adobe can scare a professor, a security expert, a software maker, or an employee into believing it says. Who cares if that is really what the DMCA says? If you land in jail, even if a wise judge throws the case out and declares the law unconstitutional, you have still lost a part of your life, income, possibly your job and even your reputation.

        The DMCA is a four letter recipe for a reign of corporate terror. Stupid sharks, you think 9/11 would have taught them terror is a no-no.

        Bells are ringing: Mothra, Mothra! Every heart is calling: Mothra, Mothra!
        Come on, Tok Wira, these sharks have gotta pay! New Kirk calling Mothra, we need you today!

      • Re:really? (Score:3, Insightful)

        by jedidiah ( 1196 )
        Making cracking utilties illegal is a fundementally BAD idea. They do have legitimate purposes. You don't have to pirate a game (or book) in order to desire the convenience of backups, transforming the data, or simply disabling some nuisance copy protection feature.

        The line between fair use and piracy is a finer one than most people would like to admit.

        If the DMCA made it illegal to move a book from place to place, then that alone is reason to get it repealed.
  • The DMCA is bad and wrong and all that. The EFF is just giving a heads-up to the average joe. Tactics aside, you have to look at who has the majorities best interests at heart
  • Maybe, but... (Score:4, Insightful)

    by UberOogie ( 464002 ) on Monday August 19, 2002 @12:49PM (#4098414)
    Basically, the article says that using the law to limit research is "a strech," and that the EFF is being overly alarmist about the issue.

    To which I say, laws have been stretched by powerful interests much farther than the DMCA will have to be to create a chilling effect in the past, and while the EFF may be "exaggerating" the issues, the author does nothing to challenge the fact that nastgrams based on the DMCA can and are being used to curtail research.

  • Interesting... (Score:4, Insightful)

    by mikeage ( 119105 ) < minus poet> on Monday August 19, 2002 @12:49PM (#4098417) Homepage
    People have been saying that we have to go all-out against the DMCA... since if we say it's only somewhat evil, that means we don't take it seriously. In other words, do anything we can.

    Well, isn't that how the DMCA got passed? Some people said something was pure evil, and did everything they could to try and stop it... except they did too much.

    • Does this mean that the RIAA, MPAA, and other proponents of the DMCA will be joining with Somalia, Uganda and Myanmar to complete the Axis of Occasionally Evil? Or will they just end up with Bulgaria, Indonesia and Russia in the Axis of Not So Much Evil Really As Just Generally Disagreeable?

      Actually, I think it would be best if they were to be granted their own axis. Maybe call it 'The Axis of Digital Evil'. Or, how about, 'The Axis of Evil Media Corporations Bent on Controlling All Our Base'. (Y'know, I really don't care as long as they don't try to make sheep wear lipstick - yecch :-)

      It's Monday, so are we supposed to hate them today? Or is that on Tuesdays and Thursday? If someone will please clarify, I promise to write it down this time. I have too much trouble remembering the schedule while watching my brand new copy of FotR...

  • When people are arrested after giving demo's or arrested [] at conferences, it's something to fear.
  • by Anonymous Coward on Monday August 19, 2002 @12:50PM (#4098424)
    ... announces that Hitler was "a little wayward", South African apartheid was hyped by the blacks and that Elvis will be embarking on a comeback tour next week.
    • Congratulations for proving the point beyond a shadow of a doubt.

      • Congratulations for proving the point beyond a shadow of a doubt.

        Hah. Exactly. A post about how the DMCA might be a little more vilified than it should be is met with a response that implies it is as bad as NAZISM. Is this a clever troll? really subtle humor? or just a regular day at Slashdot? Impossible to say.

    • Re:Meanwhile... (Score:3, Insightful)

      by scrytch ( 9198 )
      Wow, I've never heard of anyone being compared to Hitler on the Internet. What a stunningly original rejoinder.
  • by adam613 ( 449819 ) on Monday August 19, 2002 @12:51PM (#4098428)
    I'd be on easy street if I could get paid to troll like the guy who wrote that article :)
  • I feel much better now. There I was thinking the DMCA was bad and now I realize it's all good.


    I find it interesting that the article spends a long time "bebunking" the myths of the DMCA, yet the author devotes a paragraph to deriding the DMCA. Unfortunately, he does not expound on why he feels that the DMCA is so villainous, which makes the article rather contradictory considering the amount of bits he wastes saying that the issues that people have with the DMCA are myths.

    It ain't no myth, Baby. The DMCA is yet another chip missing from your block of freedom.
  • by oGMo ( 379 )

    Imagine two kids of nearly equal weight on a see-saw. One sits on the end, as is normal. Now, in order to achieve balance and "fairness," the other does not sit in the middle, on the fulcrum.

    Now imagine an 800lb gorilla and a little kid on a see-saw.


  • Astonishing... (Score:5, Interesting)

    by gerf ( 532474 ) <> on Monday August 19, 2002 @12:52PM (#4098437) Journal

    The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero

    True, but not all speeches and research is presented at an 'academic conference,' now are they. It seems this implies that the author does not support research outside of a institution such as a business or university. Do employees of these places now have more rights than other people? If that's true, i'd be even more against the DMCA than the view of it they're trying to debunk!

    • The risk that a researcher could go to jail for giving a speech is essentially zero.

  • Not to mention all the lawsuits that it brought. Once the EFF pushes for some kind of stupid law, then I'll complain.

    For me, all those that mix business and lawsuits are bastards.
  • Is he saying its okay for rich groups to buy laws then? Its bad for the one and only group that would say anything, to actually say something? I, like probably every other /. reader just wanna say thats BS.

    Aye, just makes ya wanna move to zanzabar and start taking opium rectally
  • Fear mongering (Score:3, Insightful)

    by ( 142825 ) on Monday August 19, 2002 @12:53PM (#4098453) Homepage
    The companies have been using DMCA threats to silence people for a while. For each threat we hear about, there are many we don't.

    I grant you that the EFF may be doing some exagerating, but not much.

    Look at Felton's case. He was sent a threat, but when an opposition was made, the RIAA essentially said, "we didn't mean it" and "you misunderstood us."

    Now what is commercial distribution and profit? You have link to a site that has an advertisement, is it commercial? I have seen a case that ruled linking to a site that has advertising makes a site commercial. What about a Amazon referrer link? or a Vonage affiliate [] link? does that
    you commercial?

    It is not the actually application of the DMCA being the problem, but the threats that spring from the vagueness of the law.

  • by rainmanjag ( 455094 ) <joshg.myrealbox@com> on Monday August 19, 2002 @12:53PM (#4098456) Homepage
    The fact that the threats posed against Felten or 2600 or whomever may have little legal merit was never the issue with the DMCA. I was a Rice student when the Felten thing went down, and three of the seven co-authors of the Felten paper were from Rice. I can say the University was scared $hitless about the possible expense and negative PR that could follow from having to defend a civil suit by the media conglomerates.

    The EFF is right. The chilling effects are real. That research can be stopped or quashed simply by a law firm's letter head containing the four letters DMCA is an egregious tragedy.

    Declan says the law is bad. I agree. It is used to do evil things by evil corporations. Throw it out. Don't defend it. And certainly don't chastize the EFF.
  • I think we've already seen that alot of the fears generated by the DMCA have come to pass. Hello...the whole DeCSS debacle...IEEE almost requires papers be declared legal by the DMCA? Just my 2 cents worth...
  • He speaks as if a final verdict in your favor means you win completely.

    For many of the people affected by this, the threat of a lawsuit is a great financial burden in its own right, and anything that gives big corporations an excuse to sue, good excuse or bad, hurts us all.

    Oh well.
  • I gotta wonder what Declan's been smoking. First he writes the "Don't spend a lot of effort trying to get laws changed, just let the government do what it wants" article, now the "The DMCA isn't that bad, don't be afraid of it" article.

    Anyone think that Jack Valenti's hired a cracker to break into Declan's account and masquerade as him?
  • by Auckerman ( 223266 ) on Monday August 19, 2002 @12:55PM (#4098481)
    "I don't think there was ever a realistic chance that Felten would have been liable, and I think all parties knew it from the beginning," Wagner says/

    That may be well and true, but it misses the point. Lets assume Felton were sued. He is a professor. I assume he has a lawer. He certainly already had the publicity. For him a lawsuit is a mere annoyance. For someone like some young Russian programmer who comes to the states for a talk, a lawsuit is career ending. The mere fear of being sued, legimated or not, is enough to stifle any and all speech deemed fringe. That is the danger of the DMCA.

    • (* The mere fear of being sued, legimated or not, is enough to stifle any and all speech deemed fringe. That is the danger of the DMCA. *)

      A lot of things are like that. You can get sued if the neighbor's kid trips and hurts him/herself badly in your yard and be in for heck of a legal battle.

      Perhaps we need to think about a general solution to lawsuits-as-weapons where the fight *itself* is very costly and frightening and flashed around like a big sword.

      There needs to perhaps be more protection for "the little guy", whether that be a family or a small business or a professor.
      • 1- A hell of a lot more funding, plus more stringent competency requirements, for public defenders. (Are their public defenders for civil suits? I doubt it -- the Bill of Rights "you have a right to an attorney" clause probably only covers criminal cases -- but perhaps there should be.) Defense attorneys often get criticized for defending people who are probably guilty, but the alternative is having a judicial system with a rubber stamp.

        2- Loser pays "reasonable" legal expenses, perhaps to be specified in statute (e.g. hire Johnny Cochran to beat a traffic ticket if you like, but don't expect the state to foot the bill), possibly subject to an "ability to pay" rule.

        3- Harsher sanctions against barratry.

        4- The full text of laws /must/ be freely available to the public, at minimal production/delivery cost -- none of that "we copyrighted the Code and you'll have to pay to see it" bullshit.
  • by Dark Nexus ( 172808 ) on Monday August 19, 2002 @01:03PM (#4098540)
    The article in question DOES make a few good points in that many of the more extravagant floggings with the DCMA probably wouldn't have held up in court, and WERE blown out of proportion by the EFF and others.

    Some say that making such a big deal out of those (relative to how big of a deal they were initially) helps to motivate the public against the DCMA.

    This is most likely true.

    But what else can it do? It can motivate the less tech and law savvy people (IE: University administrators that control the flow of research funds) to cave immediately to nastygrams that would never manage to hold up in court.

    The FUD put out on some (not all, and mostly those related to Acadamia) of the DCMA cases has allowed Hollywood to use the DCMA as a bluff, knowing that most administrations will cave instead of taking it to court.

    The DCMA itself isn't as far reaching as many say it is, but by saying it is, they may have managed to allow Hollywood to use it like it is (that far reaching), unchallenged.
    • The caving in to DMCA threats is not being driven by the EFF. The companies which cave have legal departments which have looked at the law and know the realities of the court system, the costs thereof, etc. The DMCA includes a number of large blunt instruments which give copyright holders enormous and unprecedented power, including the power to allege a violation and have said violation removed in the absence of any evidence. "Guilty until proven innocent" is not an exaggeration, applied to this part of the law.

      In short, the claim that the EFF is exaggerating the problems with the DMCA are most likely being made by those who don't fully understand how dangerous the DMCA is. Unfortunately, it's full effects may take many more years to become apparent to those who aren't already directly affected by it.

      For the record, I'm not associated with the EFF, although I probably should be. ;)

      • by Dark Nexus ( 172808 ) on Monday August 19, 2002 @03:46PM (#4099774)
        You have to realize that not everybody who has been threatened have had legal departments to consult over the threats.

        Then there's also the fact that many non-technically oriented companies (et al) may not have legal departments that have much, if any, experience in the technical or copyright realms.

        There is the large potential for the "Oh, it's that DMCA thing, I'd better give in" reaction.

        Is that actually happening? I don't know. I'm just putting it forward as a possibility.

        Yes, the DMCA is dangerous. But many are going off on it like it's the end of the world. Which it isn't. It's more likely one of the signs that the end may be coming.

        Just because someone says that it's not as far reaching as some are making it out to be, that doesn't mean that they don't think it's reaching to far.
  • by supabeast! ( 84658 ) on Monday August 19, 2002 @01:04PM (#4098551)
    "...the DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies", groups like the EFF are not much better, engaging in "fear-mongering" and scare tactics to increase opposition.""

    Let's all watch Declan McCullagh try to survive the next round of CNET layoffs by writing an article designed to piss off everyone on both sides of an issue, generating millions of hits for CNET! I wonder who the "anonymous reader" works for *cough*CNET*cough*.
  • by Loligo ( 12021 ) on Monday August 19, 2002 @01:05PM (#4098552) Homepage

    He's not saying the DMCA isn't bad. He's not even saying the DMCA isn't THAT bad.

    He agrees that the DMCA is bad and a threat to some people, just not to everyone the EFF said it was a show-stopper to.

    He also makes a very good point: Activists that don't understand the impact of the laws they're protesting don't present very convincing cases.

    • by King_TJ ( 85913 ) on Monday August 19, 2002 @01:24PM (#4098712) Journal
      I disagree. He does a terrible job of making the very point you claim he's trying to make.

      The EFF is certainly not made up of "activists that don't understand the impact of the laws they're protesting".

      I used to be sort of "one friend removed" from one of the original founders of the EFF. When they first started out, they had no interest in becoming another political organization - at least in the traditional sense. They were as disgusted as most other people are with politics and the under-handed/sneaky ways in which they operate.

      Unfortunately, they soon learned that you had to "play the game" in order to make changes happen in Washington. If you didn't develop a full-blown non-profit organization that actively campaigned for your causes, you got written off as "extremists" or just another blowhard with no "teeth" to back up your threats and warnings.

      Anyone accusing the EFF of exaggerating their causes simply doesn't understand the mechanics of our political system. Especially when you deal with technical issues that the average senator/congressman only vaguely has his/her head wrapped around - you have to hammer your points home. Otherwise, your opposition surely will - and you'll look like you have a very weak argument, by comparison.
  • Fear (Score:4, Insightful)

    by Casualposter ( 572489 ) on Monday August 19, 2002 @01:06PM (#4098560) Journal
    Fear of the law, as was pointed out, is the main objection to the DMCA. Fear of this law is an unfair burden on the citizens of the world. Why should Dimitri be arrested for something he did not do in the USA? That action by the US gov't regardless of whether is ultimately defeated in court several years and many many thousands of dollars from now is irrelevent. The relevant message is this: we WILL arrest you if we THINK that you have violated this law. Arguably, Dimitri is not in violation of the LAW. But he COULD BE found guilty...and that is the fear.

    Fighting a lawsuit is a slow process even when it is a slam dunk. The starting retainer for most of the lawyers that I've hired is $1000. That's not chump change. And then the cost of the case will run higher than that even if you settle the case within a year.

    Then there is the time involved. Meeting with the Lawyer. Showing up for court. Putting your life and your family's lives on hold while you grind through the legal entanglement. Everything begins to revolve around the legal case; and if you are imprisoned, then it is very difficult to continue your career. How long do you have to stay in jail before you fall far behind the bleeding edge of technology? What are the costs of being publically arrested?

    The media has certainly showed the arrests and then the convictions, but how many times does the acquital make the news? If it did how many folks would be able to link the person acquited to the original arrest?

    The DMCA is a power grab, and I think it is very unfair and probably unconstitutional. But its power to motivate people lies in the uncertainty of the application of the law. There are too many grey areas for any sort of comfort,a nd so it will be left to the battle fields of the courst system to determine the right and wrong of the DMCA.

    As the article pointed out, many of these fears may be unfounded or exaggerated, but how much of your life are you willing to bet on it?
  • Who's exaggerating ? (Score:4, Interesting)

    by terrymr ( 316118 ) <terrymr @ g m a i l .com> on Monday August 19, 2002 @01:07PM (#4098561)
    The EFF may be over stating some of the chilling effects a little but they're trying to get peoples attention.

    On the other hand any exaggeration by the EFF pales into insignificance when compared to the exaggeration by the entertainment industry (and others) of their new rights under the law. We've seen many people threatened with dumb lawsuits which have no merit or takedown orders used to stifle free speech (scientology anyone ?).

    And in a further exaggeration the entertainment industry claims that unless it gets even more draconian laws passed it will be put out of business.
    • On the other hand any exaggeration by the EFF pales into insignificance when compared to the exaggeration by the entertainment industry (and others) of their new rights under the law. We've seen many people threatened with dumb lawsuits which have no merit or takedown orders used to stifle free speech (scientology anyone ?).

      The problem is that the EFF are helping the entertainment industry spread fear. If they get their way, and the DMCA is repealed, then perhaps the ends justify the means, but what's more likely is that the DMCA will not be repealed, and it will not be found unconstitutional, and the EFF has just shot itself in the foot by giving credence to a ridiculous interpretation of the law.

  • by JamesSharman ( 91225 ) on Monday August 19, 2002 @01:07PM (#4098564)
    "The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero,"
    Was I the only person who stoped reading soon after this sentance. This Orin S. Kerr [] should have a solid sit down chat with Dimitry.

    The bulk of this texts argument seems to be based on what has and has not worked in a court when defended but they fail to see this is only part of the point. We all know the mojority of small companies and individuals simply can't defend themselves in court so the DMCA threats are enough.

    The DMCA gives the big boys a new threat to use. A friend of mine was recently held up at gunpoint in the store where he works, he explained to me that he was 99% sure the gun was a replica and yet he didn't laugh the guy off, any ideas why?

    Sometimes a threat is all you need

    • "The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero," This Orin S. Kerr should have a solid sit down chat with Dimitry.

      Perhaps Dimitry did something more then just give a speech?

  • by cybermace5 ( 446439 ) <> on Monday August 19, 2002 @01:07PM (#4098570) Homepage Journal
    If you believe the buzz, you'll conclude that programmers, academics and engineers should be scared witless about being sued under the DMCA. In effect for nearly two years, the law sets protections for the codes that are wrapped around certain copyrighted content such as DVDs and electronic books.

    After 2600 and DeCSS, why yes, yes I am scared witless about being sued under the DMCA. All I have to do is make something, someone finds a way to use it for copying some material, and I'm in deep trouble.

    It does not matter that the DMCA doesn't apply to many situations. Most people don't know exactly what the DMCA covers...all that needs to happen is someone charges me with violating the DMCA. Regardless of whether the charge ends up being valid, you have been "tainted" and most people won't understand just how false the charges were. Having to defend yourself against these charges can result in large financial losses, not to mention the possibility of being fired.

    Sometimes the method of determining the intent of a device is so esoteric, many people will think you just scraped by on a technicality.

    I don't think the EFF has been hyping this enough. I can go through a day without talking to someone who has ever heard of the DMCA or the EFF. We are the beginning of a new generation, where we depend on the storage and transfer of digital information in our daily lives. It's our responsibility to make sure that this new frontier isn't locked down and commercialized before we have a chance to explore it. This is our generation and our responsibilty.

    When you're standing in a pit of snakes, the moment you become complacent and careless is when they strike.
  • by idonotexist ( 450877 ) on Monday August 19, 2002 @01:07PM (#4098574)
    After this and Declan's previous article (something along the lines, "there should be a seperation of techies and state"), which seem, well, non-Declan (who is generally a fierce advocate for freedom and is anti-DMCA) I am wondering if this is applicable...

    ** MISSING **
    Declan McCullagh
    ACLU Award: Free Speech []
    Time Magazine Advocate for: Privacy []
    Previous Plaintiff: Challenging the Communications Decency Act []
    Anti-DMCA Efforts: Intervened in the landmark DVD/DeCSS lawsuit asking the court to open proceedings [].

    Declan McCullagh was reported missing to the /. user community. He was last known to be in Washington DC, and is believed to have undergone philosophical changes upon employment with CNET's

    Incident Type: DMCA Abduction

    If you have information regarding the disappearance of this individual, please contact: the /. community at
    • by FreeUser ( 11483 ) on Monday August 19, 2002 @01:27PM (#4098733)
      Declan is not inherently a friend of free software, a foe of the DMCA, or indeed a friend of freedom at all.

      He is a friend of Declan, and he will do whatever it takes to advance his career, irrespective of how many people he harms in the process.

      In the early days of LiViD (the first group to get a semi-working software DVD player under GNU/Linux) Declan McCullagh hung out on the livid mailing list. After he had a very good idea what was going on (work to create a DVD player under GNU/Linux) he published, in WiReD, a hysterical article about hackers writing software to enable rampant DVD piracy. The story was carried here on /. and elsewhere.

      As a result, several lead developers in the project were threatened with legal and criminal action (though no crime had been committed) and had to withdraw from the project. While others took over their responsibilities, this probably delayed the development of a working DVD player for GNU/Linux by a couple of months, and nearly wrecked the lives of several software volunteers.

      Thanks to Declan, who never once admitted any wrongdoing (despite the flagrant yellow journalism that precipitated the problem, and likely led to the entire DeCSS fiasco as well), never once apologized, and remained quite arrogant during his entire tenure on the mailing list.

      Later he passed himself off as a "friend" of freedom and an anti-DMCA activist/journalist. It gained him widespread popularity in some circles and some degree of recognition.

      Now, clearly, he has determined that he can advance his carreer by toning down, perhaps even reversing, his stance on the DMCA. Hardly surprising, since, as a "journalist" he works for a publisher which is, almost by definition, a member of the very copyright cartel that is pushing the DMCA and similiar legislation.

      Declan is a friend of Declan, the rest of us are tools to be used and discarded as needed to advance his own career.

      Being stabbed in the back by such a person, given his history of behavior, should come as no surprise to anyone who has been paying attention.
  • Not a big deal (Score:3, Insightful)

    by SCHecklerX ( 229973 ) <> on Monday August 19, 2002 @01:13PM (#4098627) Homepage
    Really. This guy is right. It's no big deal. Just ask Dmitry Sklyarov.
  • Where do the "Black boxes" come from if not research?

    Research and papers are legal, but building and distributing the "black boxes" is not? you can publish findings, but not code?

    How do you do publish a research paper without some kind of code or algorithms? Even an English Language description (does that mean that Spanish and Russian descriptions are outlawed?)

    "Well, I can't publish this because I don't want to go to jail or get sued so you'll just have to take my word for it."

  • Pointless article (Score:5, Informative)

    by Dr. Awktagon ( 233360 ) on Monday August 19, 2002 @01:17PM (#4098657) Homepage

    Really. He probably had to fill a deadline and came up with this, knowing it would generate a lot of interest. First he says this:

    The DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies. It is probably unconstitutional. It creates unnecessary federal crimes, cedes too much authority to copyright holders, and should be unceremoniously tossed out by the courts. (As a bonus, perhaps we could horsewhip its many fans in Congress.)

    Then he goes on to say "no wait a minute, it's not so bad, we can live with it". He goes on to say, basically, how he believes the line between "encryption research" and "trafficking in circumvention devices" is completely clear and bright.

    Well guess what. It ain't. I don't feel like the line between code and speech is a clear one. He even acknowledges in his article that including code in a research paper is vital:

    If published research does not include working code--which is a vital part of research--the odds of a successful lawsuit rapidly approach zero.

    So, by his own words, the chances of a lawsuit are not zero if you include code.

    And what is code? How about some pseudocode? How about a working copy of code, except some constants are changed? How about a complete working example of code, but only in the print version? If this print version later appears on the web in full, will the author suddenly be liable? (Remember, by their own words, they went after Skylarov because his name was in the copyright notice, not because he personally was trafficking in the device.)

    He then goes on to mention all the recent news items (the HP flap, IEEE, etc) and dismisses them all by saying basically: well it's bad PR for these companies, so they'll withdraw their lawsuits. Well, no thanks, "bad PR" is a pretty thin safety net.

    And I also sense a vibe that traditional security research published in a journal or university web site, with lots of verbage is okay, but a bugtraq posting from "Cyb3rH4xx0r" who lives in his mom's basement is not. Well personally, I learn as much from posted exploit code as I do from long-winded papers. And any smart person could generate one from the other. Which is why a researcher should be a afraid, even if they don't use code in their paper.

    So I think a security researcher has every right to be afraid of the DMCA. We know exactly why: because 1) code is not always considered speech and 2) pretty much anything can be a "technological protection measure", from bits in a TrueType font (remember that one?) to ineffective LFSR's in DVD players. Put these two together with the DMCA and you feel the chilling wind.

    (And that's not even discussing the awful "takedown" provision of the DMCA, which allows copyright holders to arbitrarily take down web pages and eBay auctions. I'm surprised we haven't seen more abuse of that one from people forging affidavits.)

  • by 0xdeadbeef ( 28836 ) on Monday August 19, 2002 @01:20PM (#4098679) Homepage Journal
    I mean, first he tells us to give up political activism because changing the law is a lost cause, so we should just write code. Now he is telling us the law ain't so bad after all.

    To highlight the absurdity of this position, consider this statement from the article:

    The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero. - Orin Kerr

    Wow, I fell so safe at night. Now, why does need to qualify zero with "essentially". Perhaps because, um, people have been arrested? Researchers have had injuctions against releasing their findings? Corporations have waved the DMCA around to frighten people into keeping quiet?

    The purpose of an overly broad law is to pick and choose who you make examples of. Sure, the risk to us is relatively minor, because we're nobodies off their radar. Wait until you create something or discover something that rubs the government, software giants, or Hollywood cartels the wrong way. It doesn't matter if they lose in court, the point is they scared us all with heavy-handed legal tyranny.

    Perhaps this is furthering his "law no, code yes" proposal. Overturning the DMCA is a lost cause, so we should push it on all fronts to weaken its reach. Like a bully, it's power comes from a shared belief in its potential to harm us. When we all stand up to it we will find it shrivel into something less ominous.
  • Oh ok thanks. I'll remember that one.
  • How does tripe like this get on the front page?

    I accept that I've usually heard about something before it appears on /. but that should mean someone thought it was worth reading.

    So some guy working for a supporter of the DMCA says the free people are just silly to worry about their actions being illegal. It's not like this is some respected reporter saying this. Or coming from a mainstream source like the Washington Post, NYT.

    What's the news in some adverporter sending out cleverly disguised PR? Why can't the moderators send this kinda junk into /dev/null ?
  • by alienw ( 585907 ) <> on Monday August 19, 2002 @01:22PM (#4098694)
    While some people here think that we should exaggerate the dangers of DMCA to make it look worse than it is, I disagree. When you exaggerate, people familiar with the actual law (such as lawmakers) can see that, and you immediately discredit yourself. Highlighting the actual problems with the law makes your point valid; exaggerating facts makes your entire point invalid. Any intelligent person saw that Edward Felten would not have been prosecuted for the SDMI fiasco, for obvious reasons. Why did the EFF stretch the facts and say that he would? By doing that, they only discredited their other, valid points.
  • I wouldn't expect a large media company to not support a law written by media companies.
    • You didn't read the article -- but no surprise here, you're just another knee-jerk Slashdot poster.

      Quote from the article:

      The DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies. It is probably unconstitutional. It creates unnecessary federal crimes, cedes too much authority to copyright holders, and should be unceremoniously tossed out by the courts. (As a bonus, perhaps we could horsewhip its many fans in Congress.

      Now, in case you're too ignorant to know what "egregious", "unconstitutional", and "brazen power grab" mean, I'll simplify by noting that Declan is calling the DMCA a really really bad law.
  • Barry Goldwater (Score:3, Insightful)

    by jkujawa ( 56195 ) on Monday August 19, 2002 @01:28PM (#4098736) Homepage
    "Extremism in the defense of liberty is no vice; moderation in the defense of liberty is no virtue."
  • by dpbsmith ( 263124 ) on Monday August 19, 2002 @01:29PM (#4098745) Homepage
    Would Declan McCullagh care to underwrite DMCA insurance for universities? Insurance that would pay all legal costs if the university is sued under the DMCA?

    If he's right, such insurance could be profitably provided at an affordable price. Sounds like a great opportunity.

    If he DOESN'T want to take that risk, then I don't see why universities, who are less well informed about the situation than he is, would ever want to assume it themselves.
  • Oh Really? (Score:3, Informative)

    by sdjunky ( 586961 ) on Monday August 19, 2002 @01:31PM (#4098755)
    "If the public believes that the DMCA is stopping Professor Felten and other researchers from conducting legitimate research, then that is a major victory for opponents of the law."

    well, us the "opponents" must be making things up and this entire site [] is a fraud
  • The media telling everyone in the United States that we are all going to die because the next terrorist attack is going to use biological weapons is all right. But when the EFF spews worst case scenarios it's bull? Someone needs to inject the this guy with the thrax and then have a medical company sue him for having their copyrighted version of the infection.
  • Here's what I got from this article:

    You can do all the research you like. You can reverse engineer, and learn and hack and tweak all you like. You can even write code to test your understanding of the information you have discovered.

    What you can't do is use the code, share the code or demonstrate the code. You can't share or demonstrate the research. You can't prove there are holes or even security risks.

    So yeah, you can research and learn all you like -- you just can't give the results to the people.

    Simple. I see no problem here...
  • Hold up (Score:3, Informative)

    by dr_dank ( 472072 ) on Monday August 19, 2002 @01:54PM (#4098893) Homepage Journal
    A company seeking to sue a researcher could argue that the DMCA covers such an act, as eight movie studios did when successfully suing the magazine 2600 for distributing a DVD-descrambling utility.

    Wow, I must have missed that special issue of 2600 where they included the AOL CD-DeCSS combo CD-ROM.

    I take issue with this because:

    * 2600 merely published the source code to DeCSS. This is radically different from distributing a binary. The source is only a recipe, not the entire meal.

    * The website only linked to where it was hosted and mirrored. The source was never available on the site itself, IIRC.

    A bit of fact-checking wouldn't have hurt the author in this regard.
  • Declan's comments seem to revolve around two major points:

    1. It does not seem very likely or reasonable to a lot of people (including Mr. McCullagh) that a researcher would be sued under this law if they published research that could be used to violate copyrights.

    2. It does not seem very likely or reasonable that a researcher who does not publish any source code could be sued at all.

    The fallacy of these arguments is that they assume corporations won't TRY. It's true that a judge could very well slap away a lawsuit against Edward Felten, but Felten still had to deal with the stress and anxiety of being threatened. Perhaps he would have opted to settle, rather than take the case to court, and in doing so set a dangerous precedent for the future.

    It seems to me like this sort of opinion is irresponsibly optimistic. Laws containing gaping loopholes that could conceivably be used to threaten freedom of speech cannot be excused by the fact that we don't think it will happen. Such political quiescence is what allows legislative problems to deteriorate into constitutional crises.
  • Any type of publishing carries risks, including possible suits for libel, copyright infringement or invasion of privacy. Security research is no different. Before self-censoring, a researcher
    should make a sober evaluation of which allegations are likely to stick and show courage by not bowing to spurious threats. (Emphasis added)
    And Declan "should" cover my legal expenses when it happens, he and "should" pay the fine when I run out of money for lawyers and the court finds for the plaintiff.
  • by gol64738 ( 225528 ) on Monday August 19, 2002 @02:25PM (#4099160)
    let me give you a quick example:
    let's say i live in Australia amd purchase $5000 worth of DVD's there. then, i move to california. normally, because of the regional encryption nature of DVD's, all of my DVD's would now be completely useless. now, let's say i'm smart and decide to break the encryption method of DVD's so that i could watch my own, purchased DVD's. under the DMCA, that would be illegal. so my rights to fair use are in the toilet. get the picture now? if we don't make a stand today, these laws will clamp down even tighter in the future, probably throwing our fair right use completely and utterly out the window.

    i bet back in the mid 1700's, you were the guy saying, 'hey everyone, english tea is really, really good. let's not rock the boat. is it really so bad paying them unrepresented taxes? c'mon everyone, the english really are nice people afterall...'

    by the way, i followed the felton case very carefully examining every detail. your rendition of the justice departments' views are warped and untrue. shame on you.

    yes, yes let Allan Adler badmouth the EFF all day long. but, if what he says is true, than one might ask what the EFF's motive is to do such a thing.

    look, the bottom line is that money is driving this whole thing. money is enough to take away our consitutional rights little by little. if we don't put a stop to this in the beginning, then we will all me telling our grandsons how much freedom we had in the 'golden days'.
  • by Sloppy ( 14984 ) on Monday August 19, 2002 @04:16PM (#4099995) Homepage Journal
    "Opponents of the DMCA want to dramatize its effects, so they want people to believe that the law is incredibly broad," Kerr says.
    The opponents of the DMCA didn't write that damned law and aren't responsible for how judges have behaved. Kerr can talk all he wants about limited exemptions for things like reverse-engineering and how Felton probably would have been safe, but all that defies some very simple real-life facts:
    • Kaplan ruled against 2600 publishing DeCSS source code.
    • Dmitry Sklyarov spent time in jail for writing code.
    • Felton received a threat from RIAA.

    If Kaplan sided with MPAA in the DeCSS case, then all the ridiculous nightmare DMCA scenarios are plausible. It's just a matter of someone being willing to press the button and then not backing off.

    I remember a not-too-distant time when most people viewed Alan Cox's absurd imaginary situation where someone attacks him for disclosing Linux bugs, as being too paranoid and unrealistic. But then just last month, HP proved that it's not only the wacko EFF guys who view this sort of thing as possibly being covered by DMCA. HP lawyers saw it as a valid weapon in their arsenal.

    So quit blaming EFF, Kerr. The Bad Guys have also seen how far-reaching DMCA's text actually is. For a moment there, even they thought they could use it to stop Felton. HP thought they could use it to supress information about True64. These people are not EFF plants. But they are clever and know that to minimize the chance of it being struck down, they have to push it incrementally, and slowly build up lower-profile precedents. You don't just throw the frog into boiling water; you slowly heat him.

  • by Ogerman ( 136333 ) on Monday August 19, 2002 @04:39PM (#4100138)
    The wording of this article is so obviously biased towards Hollywood / proprietary software industry interests, it's disgusting. Note how they suggest the Skylarov case was a proper use of the law to prosecute true criminals:

    "Actual violations of the DMCA can be punished with a civil suit for damages or, if done for commercial gain, prosecuted as criminal acts. The Justice Department indicted Dmitry Sklyarov because his employer, ElcomSoft, sold an e-book decoder that he helped to create, triggering the DMCA's criminal penalties."

    So basically, this article is saying that DMCA is good as long as "true academic researchers" aren't threatened. Well guess what Mr. McCullagh, that's not the point! DMCA is a bad (unconstitutional) law because it unduly limits free speech and restricts basic personal freedom to do what you want with something that you purchased--such as editing movies for your kids to watch, extracting video/sound-bites, playing DVD's in Linux, making backup copies of media and videogames, format-shifting for use in different types of digital players, etc. DMCA is a law to enhance greedy media giants' / proprietary software companies' ability to manipulate and rip off consumers. That's all there is to it.
  • by edfelten ( 135938 ) on Monday August 19, 2002 @05:07PM (#4100316)
    A rebuttal to Declan's article, from me (Ed Felten) and two others, is available on my site at

We gave you an atomic bomb, what do you want, mermaids? -- I. I. Rabi to the Atomic Energy Commission