EFFector Vol. 13, No. 11 Dec. 13, 2000

EFFector Vol. 13, No. 11 Dec. 13, 2000
[email protected]

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 159th ISSUE OF EFFECTOR (now with over 25,900 subscribers!):

* DMCA Takes Full Effect - Millions of Americans Become Criminals
* Call for Nominations: The Tenth Annual International EFF Pioneer
Awards
+ Intro
+ The 2001 Awards
+ How to Nominate Someone
+ Past Pioneers of the Electronic Frontier
+ About EFF
* Administrivia

For more information on EFF activities & alerts: http://www.eff.org
_________________________________________________________________

DMCA Takes Full Effect - Millions of Americans Become Criminals

By Robin D. Gross, November 2000

Librarian of Congress Unable to Preserve Fair Use in Digital Age

On October 28, 2000 the controversial Digital Millennium Copyright Act
(DMCA) took full effect, criminalizing the act of circumvention of a
technological protection system put in place by a copyright holder --
even if one has a fair use right to access that information. Maximum
penalties allow up to 10 years in prison or $1 million fine for
willful violators of the new law. This dramatic change in copyright
law should serve as a wake-up call for all Americans that their First
Amendment rights are rapidly eroding in the digital realm. Ignited by
the copyright industry, this legislative trend is spreading through
national legislative bodies around the world like wild fire.

The DMCA outlawed making or providing tools that could be used to
circumvent technological protection systems when the legislation was
first enacted in 1998. Another provision of the DMCA banned the act
of circumvention, although it did not take effect until two-years
later. Congress directed the Register of Copyrights to conduct a
rulemaking procedure during the interim and recommend to the Librarian
of Congress classes of works that should be exempted from the general
ban against circumvention because people were likely to be adversely
affected in their ability to make lawful uses of works.

During the course of its proceeding the Copyright Office received an
incredible 392 written comments from the public and heard testimony
from 34 witnesses on the subject. Despite the repeated requests for
exemptions from those who need to circumvent in order to exercise
their legal fair use rights such as library, educational, and civil
liberties groups, the Librarian's final rule only exempted two narrow
circumstances in which one will be allowed to circumvent. This leaves
the vast majority of the public's fears unaddressed with little choice
but to seek help from Congress or the courts.

In making its determination, Congress directed the Register to consult
with the Assistant Secretary for Communications and Information in the
Department of Commerce. The Assistant Secretary recommended an
exemption analogous to fair use based upon a factual examination of
the uses to which works are put. In a letter to the Register
presenting his views, the Assistant Secretary stated that his
principal concern is to ensure that the Librarian will preserve fair
use principles in this new digital age. He echoed the fears of the
Commerce Committee that a legal framework may be developing that would
"inexorably create a pay-per-use society." He stated that the "right"
to prohibit circumvention should be qualified in order to maintain a
balance between the interests of content creators and information
users, by means of carefully drawn exemptions. Despite the Assistant
Secretary's recommendation for a use-based exemption, the Copyright
Office ultimately rejected it as "beyond the scope of the Librarian's
authority."

Librarian's Two Narrow Exemptions Ignore Majority of Public's Concerns

On the recommendation of the Register of Copyrights, the Librarian of
Congress James Billington announced two narrow classes of works
exempted from the DMCA's prohibition on circumvention of technological
measures that control access to copyrighted works.

1. Compilations consisting of lists of Web sites blocked by filtering
software applications.

The first exemption, while narrow in scope, addresses one real and
specific danger created by the DMCA's blanket ban on circumvention:
the criminalization of decrypting lists of Web sites blocked by
content filtering software. The ruling stated that the reproduction
or display of the lists for the purpose of criticizing them could
constitute fair use. Citing the controversial injunction issued in
Microsystems Software, Inc. v. Scandinavia Online AB, No. 00-1503 (1st
Cir. Sept. 27, 2000) ("Cyber Patrol case") the Librarian recognized
the public's legitimate interest in accessing the lists of Web sites
in order to critique, comment and criticize them. According to the
Librarian:

"A persuasive case was made that the existence of access control
measures has had an adverse effect on criticism and comment, and
most likely news reporting, and that the prohibition on
circumvention of access control measures will have an adverse
effect ... on noninfringing users since persons who wish to
criticize and comment on them cannot ascertain which sites are
contained in the lists unless they circumvent."

The public has a significant First Amendment interest in exploring the
scope and reliability of content filtering software. The Librarian
should be commended for crafting an exemption that addresses this
particular danger caused by the DMCA. Unfortunately, this exemption
only covers a tiny fraction of the public's needs to circumvent while
the vast majority of legitimate fair uses remain criminalized.

2. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsolescence.

The Librarian recognized the adverse impact from the DMCA's general
ban on circumvention "in cases where legitimate users are unable to
access works because of damaged, malfunctioning, or obsolete access
controls." Explaining the rationale for the second exemption, the
Librarian stated, "the access controls are not furthering the purpose
of protecting the work from unauthorized users. Rather, they are
preventing authorized users from getting the access to which they are
entitled." This prevents non-infringing uses that could otherwise be
made. The Librarian found "this situation is particularly troubling
in the context of libraries and educational institutions."

The Librarian's second exemption is intended to exempt users of
software, databases, and other literary works in digital formats who
are prevented from accessing such works because the access control
protections "are not functioning in the way that they were intended."
A 'dongle' or hardware lock attached to a computer that prevents
unauthorized access to software is an example of the type of access
control that can be circumvented under the ruling. Access controls
may only be considered obsolete where a machine necessary to perceive
a work is no longer made or commercial available.

While attempting to correct failures in the statute's broad
prohibition, this final exemption is only applicable in a few narrow
circumstances and ultimately falls far short of adequately protecting
the public's interests. The Librarian's impotence in issuing
exemptions is particularly disturbing since he declared that this
exemption is "probably the outer limits of a permissible definition of
'class'."

Librarian Asks Congress For Clarification on DVDs

The Librarian rejected all other requests for exemptions from the
public seeking relief from the DMCA's harsh penalties. Most notably
absent was an exemption for DVDs, which would have allowed Linux users
(among others) to view their DVDs on non-standard machines without
fear of criminal prosecution. According to the Librarian, "More
comments and testimony were submitted on the subject of motion
pictures on DVDs and the technological measures employed on DVDs,
primarily Content Scrambling System (CSS), than on any other subject
in this rulemaking."

During the course of the proceeding, the Electronic Frontier
Foundation submitted official Comments (initial, reply, and
post-hearing) and testified at the public hearings requesting that the
Librarian exempt DVD movies protected by CSS from the DMCA's
circumvention ban. Even though Congress banned circumventing access
controls, it did not intend to prevent circumvention for legal use.
DVDs protected by CSS bypass Congress' intent by merging the access
and use control together into one technological protection system that
prevents fair use altogether. To its credit, the Librarian recognized
the "significant concern" presented by the "merger of access and use
controls" that CSS represents:

"The merger of technological measures that protect access and
copying does not appear to have been anticipated by Congress.
Congress did create a distinction between the conduct of
circumvention of access controls and the conduct of circumvention
of use controls by prohibiting the former while permitting the
latter, but neither the language of section 1201 nor the
legislative history addresses the possibility of access controls
that also restrict use. It is unclear how a court might address
this issue. It would be helpful if Congress were to clarify its
intent, since the implementation of merged technological measures
arguably would undermine Congress's decision to offer disparate
treatment for access controls and use controls in section 1201."

Despite this recognition of a significant problem, the Librarian
meagerly tossed the ball back to Congress to fix the mess it created
by the sloppy statute. Although charged with primarily ensuring the
public's fair use rights continue in the digital realm, the Librarian
acquiesced to the demands of the copyright industry who repeatedly
threatened that it would not 'create' if its conditions for control
over the architecture were not met and who's only objective is to
maximize revenue from creative expression by creating a pay-per-use
society. Consequently, the DMCA has deformed copyright law to only
advance the narrow interests of a few corporations at the expense of
the broader public good.

The Librarian mis-characterized the lack of an open source Linux DVD
player in the marketplace as a "problem of preference and
inconvenience" not warranting an exemption. The public is under no
legal obligation to view DVDs only on machines pre-approved by the
movie studios or according to the viewing restrictions of a CSS
license. Moreover, the entire open source development model, which is
currently fueling the bulk of technological innovation, is dependent
upon having the ability to adapt software to customize for one's own
specific needs. In dismissing the DVD exemption, the Librarian
stated: "While it does not appear that Congress anticipated that
persons who legitimately acquired copies of works should be denied the
ability to access these works, there is no unqualified right to access
works on any particular machine or device of the user's choosing."

What the Librarian fails to recognize, however, is the distinction
between an "unqualified right" to access a work on another machine,
and the DMCA's criminalization of the act of building a new device
that allows access to a work that one legally owns. "That which is
not prohibited is generally allowed." Consequently, the public will
have fewer rights in the digital realm than it enjoyed in traditional
space to use and access information. Additionally, the statute paves
the way for stifling innovation, restricting competition, and
fostering a breeding ground for monopolistic business practices in the
market for DVD players and other devices.

One of most popular reasons cited as needing to circumvent DVDs was in
order to bypass the restrictive region-coding scheme incorporated in
CSS where DVDs purchased in one part of the world will not play on DVD
players manufactured in another part of the world. Despite the
extraordinary public outcry, the Librarian dismissed this concern as
merely an "inconvenience" not warranting an exemption. Astonishingly,
the fact that the region coding restrictions correlate with the movie
studios' contractual divisions of the world was cited as a "legitimate
purpose" served by legally enforcing the restrictions. The degree of
deference given to the business plans of a select few multinational
corporations when writing legislation to govern how information may be
accessed in a democracy is frightening.

Congress and Courts Must Intercede to Preserve Fair Use and Free Expression

The implementation of technological protections that deny society its
due in the copyright right bargain combined with the DMCA's
criminalization of attempts to bypass those restrictions prevents
copyright from ever achieving its Constitutional objectives to promote
the progress of science and useful arts. The balance continues to tip
even further in favor of the movie and record companies at the expense
of individuals' rights and freedom of expression. Now that the
Copyright Office has punted, Congress and the courts will be forced to
repair the imbalance in the law created by the DMCA and its
criminalization of exercising media rights in the digital realm.

RELATED LINKS:

Librarian of Congress and Copyright Office Final Report (October 28,
2000):

http://www.loc.gov/copyright/fedreg/65fr64555.html

Letter from Assistant Secretary of Commerce for Communications and
Information, conveying the views of the National Telecommunications
and Information Administration on DMCA Rule-making (September 29,
2000)

http://www.loc.gov/copyright/1201/commerce.pdf

American Library Association Statement on Copyright Office Ruling:
"Fair use in the digital age reduced to nothing more than a hollow
promise..."

http://www.ala.org/washoff/dmca.html

Statement of U.S. Rep. Rick Boucher on Copyright Office Ruling and
Fair Use Rights:

http://www.house.gov/boucher/docs/payperuse.htm

EFF's Initial Comments to U.S. Copyright Office on DMCA (February 17,
2000):

http://www.eff.org/IP/DMCA/20000217_eff_dmca_comments.html

EFF's Reply Comments to U.S. Copyright Office on DMCA (March 31,
2000):

http://www.eff.org/IP/DMCA/20000331_eff_dmca_reply_comments.html

EFF's Testimony Before U.S. Copyright Office on DMCA (May 19, 2000):

http://www.virtualrecordings.com/EFFtestimony.htm

EFF's Post-Hearing Comments to U.S. Copyright Office on DMCA (June 23,
2000):

http://www.eff.org/IP/DMCA/20000623_eff_dmca_dvd_comments.html

_________________________________________________________________

Seeking Pioneers of the Electronic Frontier

Call for Nominations:
The Tenth Annual International EFF Pioneer Awards

Please redistribute this notice in appropriate fora.

Intro

In every field of human endeavor, there are those dedicated to
expanding knowledge, freedom, efficiency, and utility. Many of today's
brightest innovators are working along the electronic frontier. To
recognize these leaders, the Electronic Frontier Foundation
established the Pioneer Awards for deserving individuals and
organizations.

The Pioneer Awards are international and nominations are open to all.
The deadline for nominations this year is Feb. 1, 2001 (see nomination
criteria and instructions below).

The 2001 Awards

The Tenth Annual EFF Pioneer Awards will be presented in Toronto,
Canada, at the 11th Conference on Computers, Freedom, and Privacy (see
http://www.cfp2001.org ), Boston, MA. The ceremony will be held on the
evening of Thu., March 8, 2001, at the Boston Aquarium. All
nominations will be reviewed by a panel of judges chosen for their
knowledge of the technical, legal, and social issues associated with
information technology, some of them Pioneer Award recipients
themselves.

This year's EFF Pioneer Awards judges are:
* Herb Brody (Senior Editor, Technology Review)
* Moira Gunn (Host, "Tech Nation", National Public Radio)
* Donna L. Hoffman (Associate Professor of Management, Vanderbilt
University)
* Peter G. Neumann (Principal Scientist, SRI Intl.; Moderator,
ACM Risks Forum)
* Drazen Pantic (Media & Tech. Director, NYU Center for War, Peace,
& the News Media)
* Barbara Simons (past President, Association for Computing
Machinery, & U.C. Berkeley Distinguished Alumnus)
* Karen G. Schneider (Technical Director, Shenendehowa Public
Library, NY)

How to Nominate Someone

There are no specific categories for the EFF Pioneer Awards, but the
following guidelines apply:
1. The nominees must have made a substantial contribution to the
generation, growth, accessibility, and/or freedom of
computer-based communications.
2. The contribution may be technical, social, economic, or cultural.
3. Nominations may be of individuals, teams, systems, or
organizations in the private or public sectors.
4. Nominations are open to all, and you may nominate more than one
recipient. You may nominate yourself or your organization.
5. All nominations, to be valid, must contain your reasons, however
brief, for nominating the individual or organization, along with a
means of contacting the nominee, and your own contact information.
Anonymous nominations will be allowed, but we prefer to be able to
contact the nominating parties in the event that we need further
information about the nominee.
6. Any entity is eligible for an EFF Pioneer Award, with the
exceptions of current EFF staff and board members, current Pioneer
Award judges, and previous Pioneer Award recipients (unless
nominated for something new and different.)
7. Honorees (or representatives of honoree organizations) receiving
an EFF Pioneer Award will be invited to attend the ceremony at the
Foundation's expense.

You may send as many nominations as you wish, but please use one
e-mail per nomination. (This is not a vote or a popularity contest, so
you do not need to campaign, or send multiple nominations for the same
nominee.) Submit all entries to: [email protected]

Just tell us:
1. the name of the nominee;
2. a phone number or e-mail address at which the nominee can be
reached; and, most importantly,
3. why you feel the nominee deserves the award.

You may attach supporting documentation in plain text, or Microsoft
Word or other common binary formats. URLs to documentation elsewhere
may also be helpful.

Past Pioneers of the Electronic Frontier

1992: Douglas C. Engelbart, Robert Kahn, Jim Warren, Tom Jennings, and
Andrzej Smereczynski; 1993: Paul Baran, Vinton Cerf, Ward Christensen,
Dave Hughes and the USENET software developers, represented by the
software's originators Tom Truscott and Jim Ellis; 1994: Ivan
Sutherland, Whitfield Diffie and Martin Hellman, Murray Turoff and
Starr Roxanne Hiltz, Lee Felsenstein, Bill Atkinson, and the WELL;
1995: Philip Zimmermann, Anita Borg, and Willis Ware; 1996: Robert
Metcalfe, Peter Neumann, Shabbir Safdar and Matthew Blaze; 1997: Marc
Rotenberg, Johan "Julf" Helsingius, and (special honorees) Hedy Lamarr
and George Antheil; 1998: Richard Stallman, Linus Torvalds, and
Barbara Simons; 1999: Jon Postel, Drazen Pantic, and Simon Davies;
2000: Tim Berners Lee, Phil Agre, and librarians everywhere,
represented by librarian Karen G. Schneider.

See http://www.eff.org/awards for further information.

About EFF

The Electronic Frontier Foundation ( http://www.eff.org ) is a global
nonprofit organization linking technical architectures with legal
frameworks to support the rights of individuals in an open society.
Founded in 1990, EFF actively encourages and challenges industry and
government to support free expression, privacy, and openness in the
information society. EFF is a member-supported organization and
maintains one of the most-linked-to Web sites in the world.

_________________________________________________________________

Administrivia

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