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Tuesday, April 25, 2006

No fun to stay at the DMCA

The Digital Millennium Copyright Act is the draconian law enacted by Congress in 1998 to combat piracy on the dry seas of the ether. Among other things, the DMCA makes it illegal to circumvent copy protection measures used to prevent consumers from copying DVDs, music or software CDs, and other such copyrighted materials. It has already been used to prosecute the manufacturers and sellers of software and harware intended to be used for such circumvention.

It also has had about as much effect on piracy as that whole "war on drugs" thing has had on drug use.

So, like the drug "warriors" before them, the folks behind the DMCA - the recording and entertainment industries, with the support of their stooges in DC - have decided that what's needed are harsher laws with stiffer penalites. For whatever reasons - sheer stupidity is my guess - they don't seem to realize that this will further alienate their potential consumers and most likely do next to nothing to prevent all the Dread Pirate Roberts out there from continuing their plundering and pillaging.

As the ever-reliable Declan McCullagh at CNET News reports:
For the last few years, a coalition of technology companies, academics and computer programmers has been trying to persuade Congress to scale back the Digital Millennium Copyright Act.

Now Congress is preparing to do precisely the opposite. A proposed copyright law seen by CNET News.com would expand the DMCA's restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers.

The draft legislation, created by the Bush administration and backed by Rep. Lamar Smith, already enjoys the support of large copyright holders such as the Recording Industry Association of America. Smith, a Texas Republican, is the chairman of the U.S. House of Representatives subcommittee that oversees intellectual-property law.

A spokesman for the House Judiciary Committee said Friday that the Intellectual Property Protection Act of 2006 is expected to "be introduced in the near future." Beth Frigola, Smith's press secretary, added Monday that Wisconsin Republican F. James Sensenbrenner, chairman of the full House Judiciary Committee, will be leading the effort.

It should come as no surpise to anyone that Attorney General and porn voyeur Alberto Gonzales thinks the whole thing is a great idea. But hold on: this time he's not doing it "for the children." No, this time, in a display of chutzpah that could only be matched by Bill Clinton becoming a couples' therapist, the AG (and pv) lets us know that if we don't pass this new legislation, the terrorists have won:
Such changes are necessary because new technology is "encouraging large-scale criminal enterprises to get involved in intellectual-property theft," Gonzales said, adding that proceeds from the illicit businesses are used, "quite frankly, to fund terrorism activities."
(There used to be a thing in this country called shame. It's been MIA for a long time, and, although no remains were ever found, it was declared legally dead during the Clinton administration. Shame sightings still occasionally occur: there was a mass sighting right after the 2000 election, but there is now ample evidence that this was a false alarm. Many Americans refuse to believe that shame is gone forever, and wait anxiously for its return.)

Where is this evidence of "large-scale criminal enterprises" that apparently are giving the money they make from selling little Johnny a bootleg copy of Stealth straight to bin Laden, Inc.? I'll tell you where it is: right next to Joe McCarthy's list.

Anyone who doesn't know that you can get literally almost any CD, DVD or piece of software you want for free by joining the world of BitTorrents has no business talking about or passing laws having to do with "piracy." (Do a search here, if you don't know what I'm talking about. Search for a movie that's still in theatres, if you feel like it.)

Also, note how Gonzo says "quite franky" before invoking the terrorists. Many shrinks would say that the use of "quite franky" is a sure sign that the speaker is being anything but frank.

Here are some examples of how under the newly proposed legislation the customer is always wrong:

The 24-page bill is a far-reaching medley of different proposals cobbled together. One would, for instance, create a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.

It also represents a political setback for critics of expanding copyright law, who have been backing federal legislation that veers in the opposite direction and permits bypassing copy protection for "fair use" purposes. That bill--introduced in 2002 by Rep. Rick Boucher, a Virginia Democrat--has been bottled up in a subcommittee ever since.

Smith's measure would expand those civil and criminal restrictions. Instead of merely targeting distribution, the new language says nobody may "make, import, export, obtain control of, or possess" such anticircumvention tools if they may be redistributed to someone else.

"It's one degree more likely that mere communication about the means of accomplishing a hack would be subject to penalties," said Peter Jaszi, who teaches copyright law at American University and is critical of attempts to expand it.

Even the current wording of the DMCA has alarmed security researchers. Ed Felten, the Princeton professor, told the Copyright Office last month that he and a colleague were the first to uncover the so-called "rootkit" on some Sony BMG Music Entertainment CDs--but delayed publishing their findings for fear of being sued under the DMCA. A report prepared by critics of the DMCA says it quashes free speech and chokes innovation.

Jessica Litman, who teaches copyright law at Wayne State University, views the DMCA expansion as more than just a minor change. "If Sony had decided to stand on its rights and either McAfee or Norton Antivirus had tried to remove the rootkit from my hard drive, we'd all be violating this expanded definition," Litman said.

So Sony, in its capacity as a music distributor, puts a piece of software known as a "rootkit" on some of its CDs. This software, meant to prevent you from making "unauthorized" copies of your CD, inserts itself into your operating system without your knowledge or consent when you put one of these CDs into your computer's CD-ROM drive.

Under the DMCA, this is perfectly legal.

Now, let's say you find out that this rootkit program had been installed on your hard drive - again, without your knowledge or consent - and you decide that you wanted to remove it.

Under the DMCA, this is perfectly illegal.

So, to sum up: Under the DMCA it is okay for a company to hide software on a CD (which you own) and download that software onto your hard drive (which you own) without your knowledge or consent. But it is verboten for you to remove this software, regardless of the fact that it was installed on your hard drive (which you own) without your knowledge or consent. And under the new law, you could be put in prison for 10 years just for trying to remove this rootkit.

This is "fair use"????

And it doesn't stop there. The proposed law also:
Establishes a new copyright crimes unit within the FBI and grants wiretapping authority for copyright infringement investigations;

Allows for criminal enforcement of copyright violations even for unregistered works;

Establishes civil asset forfeiture penalties for any equipment used for piracy;

Allows copyright holders to seize any and all records that might document the "manufacture, sale or receipt of items involved in" copyright infringements.
Yes, by all means, let's increase the ability of the government - your government - to seize your assets. But hey - at least the asset forfeiture will be done "following the rules established by federal drug laws," because Lord knows those don't get abused every day. Count on overzealous prosecutors seizing computers, hard drives, etc., before the guilt of a suspect has been established. Count on it being difficult, if not impossible, for a person who's been cleared of the charges against him to get his stuff back.

And as for seizing records:

Jason Schultz, a staff attorney at the digital-rights group the Electronic Frontier Foundation, says the recording industry would be delighted to have the right to impound records. In a piracy lawsuit, "they want server logs," Schultz said. "They want to know every single person who's ever downloaded (certain files)--their IP addresses, everything."

The recording industry notoriously screws musicians. It screws music fans, too, by overcharging for CDs, placing too much faith (and too much marketing) in untalented artists who look good in videos but can't put out even one CD's worth of decent material, while for the most part ignoring talented acts that might take time to build an audience, but whose audience will stay with them for the long haul.

The industry does all this, and then blames declining sales on the fans themselves, who, in the eyes of the RIAA, are nothing but potential pirates just waiting to scam the labels out of their "hard-earned" money. Product sucks? Can't be. Product's too expensive? No way. Music fans ungrateful bastards? Bingo.

Here's some advice for the RIAA: Whatever you do to try to stop piracy will be countered by people who ultimately are smarter than you, people who for the most part aren't looking to get something for nothing, but who are making it their business to give you the (electronic) finger simply because they just don't like you or your methods.

The fact that you're seeking to make "unfair use" even more obnoxious than it already is shows that you haven't learned a damn thing in the past eight years or so. You're in serious danger of becoming a dinosaur, trying to avoid extinction by passing laws against ice ages.

Wake up.

(Hat tip: TuCents' excellent post, "It doesn't hurt enough yet, do it again," via The Libery Papers mailing list. )

Update: I just want to make it clear that I'm in no way condoning breaking the law, even if the law is an ass. What for now is called "piracy" is most definitely illegal, at least in the US, regardless of how you feel about it ethically. At some point today's "piracy" may become tomorrow's "viral marketing tactics," but in America circa 2006, it is punishable by fine and/or prison time.

So don't do it. And if you're gonna do it, for God's sake hide your IP address. But don't do it.

Blogger The Brigadier, Red Ensign Brigade said...

Very good post. I've linked to this (and to Tucent's post) here: http://www.bolditalic.com/quotulatiousness_archive/002708.html.

11:22  

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