Re: More ethics... (long, of course)

[Sandy Harris <sandy -at- storm -dot- ca>]

Andrew Plato wrote:

An attempt to defend a prosecution under the DMCA by referring to principles
of copyright law. Since I feel the DMCA dangerously subverts those principles,
here's a long rebuttal. 

A couple of essays worth looking at:
http://www.toad.com/gnu/whatswrong.html
http://www.gnu.org/philosophy/right-to-read.html

> For you - profit.  Apparently you seem to think companies can make a
> profit from giving away their valuable goods and services. If the dot.com
> bust has taught us anything it is  - YOU MUST MAKE A PROFIT.

In this case, it is far from clear that some of those services had any real
value. See a previous post of mine titled "Corporate ethics" for an argument
that some of those vendors (not Adobe, but others discussed in Sklyarov's
talk) are pushing pure snake oil and should be busted for false advertising.

> > SURE things would work differently in the absence
> > of those laws. SURE, that would be a bad thing for
> > some people. But just as surely, it would be just
> > fine for plenty of other people. The same thing
> > happens every time there's a paradigm shift across
> > an industry or society.
> 
> Yes, but your "paradigm shift" will remove the mechanisms companies and
> individuals use to protect their intellectual works. This would devalue
> ALL intellectual works. It would remove the profit incentive from pursuing
> and developing said intellectual works.

No. What is going on with the DMCA is a ghastly attempt by corporations
to grab privileges they've never had under copyright law and to do away
with rights the public have always had.

For example, copyright law has always (at least in the US and Commonwealth
countries) explicitly protected "fair use". It is perfectly legal to quote
a copyrighted work in a review, or a piece of scholarly research. There are
limits; the amount I quote must be reasonable. 

In at least some countries, there are specific exceptions for things like
teachers photocopying for classroom use as well. Again, there are some
constraints. Photocopying a newspaper story might be OK, but not a whole
textbook.

Moreover, there are some clear legal precedents. In the US, the Record
Industry Association lost an important case in the Supreme Court. If I
own a record, does "fair use" include making a cassette copy to play in 
the car, or in my bedrooom where I don't have a record player? The Court
said it does.

Another case involved whether taping a TV show to watch later violates
copyright. Again, the industry fought it all the way to the Supreme
Court and lost.

Now the copy protection schemes on newer media like DVDs are a blatant
attempt to bypass those decisions. They prevent making a videotape copy
of a DVD to watch at the cottage, or quoting a brief piece of a film in
a review on my website.

   "The primary purpose of the DMCA is to prevent fair use."
   (I know I'm quoting, but don't have an attribution. Anyone know?)

Under the DMCA, it becomes illegal to bypass an access control mechanism,
even for "fair use", clearly legal under copyright law. 

Moreover, it becomes illegal to distribute tools for breaking an access
control scheme. The tools are "guilty unless proven innocent". There
are clearly perfectly legal "fair use" applications, but that is not
considered relevant.

Just to top it off, they are even trying for injunctions against web
sites that link to code that cracks their encryption. It is possible
they could get an injunction against our host, Eric Ray, forcing him
to take down his archive copy of one of my posts:
http://www.raycomm.com/techwhirl/archives/0107/techwhirl-0107-00070.html
It was posted a week or two before Sklyarov's arrest and points to his
company and several others offerring similar services.

The whole thing is getting ridiculous. I have some T-shirts that may
be illegal. See http://www.copyleft.net/ for the DeCSS shirts and the
nasty letter from the studio lawyers.

People like the DVD CAA (the 'non-profit' corporation who license the
encryption technology on DVD disks) claim their scheme will 'prevent
piracy'. The claim is blatantly untrue. Any large-scale pirate is just
going to copy the disk bit-for-bit without even trying to break the
encryption. the copy will play on any device the original did.

I'm not certain if are deliberately lying or are just so incompetent
they don't know their claims are nonsense. My guess would be both.

What their encryption actually protects is their control over the
market. e.g. it prevents a disc sold in the US from playing on a
machine sold in Europe. This lets them delay the European release
of a film without having people get DVDs by mail order from North
America. It also means they can sell $3 DVDs in Asia without losing
their ability to charge several times that in the US and Europe.

This may be an illegal conspiracy. See the Australian gov't web site:
http://www.accc.gov.au//fs-search.htm 
for several articles on their Competition Commission's reaction.

One, written by the Commission chairman, has:

| The Commission has requested the Australian subsidiaries of United States film
| companies to explain why their regional restrictions on DVDs should not be deemed
| a breach of the Trade Practices Act 1974. ...
|
| The Commission believes RPC is anti-competitive with Australian consumers lacking
| a choice of DVD videos and possibly paying higher prices.

[big snip]

| The arrangement between the studios and between them and the manufacturers may 
| constitute a contract ... lessening competition in a market in contravention of
| section 45 of the Trade Practices Act.
|
| The essential point here is that in the Commission?s view, there is an attempt
| to use copyright laws for a purpose related to areas beyond their real purpose.
| This coding system is a mechanism to allow price discrimination, not to protect
| the inherent rights of Intellectual Property owners.

Britain's largest supermarket chain wrote the Motion Picture people an
interesting letter:
http://www.theregister.co.uk/000221-000018.html

Here's a quote for you:

 "The growing and dangerous intrusion of this new technology threatens
 "an entire industry's economic vitality and future security. [The new 
 "technology] is to the American film producer and the American public
 "as the Boston Strangler is to the woman alone 

That's Jack Valenti, president of the Motion Picture Association of
America. Don't you find it a tad hard to take anyone who uses such
rhetoric seriously?

He said that while testifying on video cassette recorders before the
House Judiciary Committee, in 1982. Now he's using similar arguments
as one of the main advocates for DMCA. I don't think he's become any
more credible in 20 years.

> If you take intellectual property that is not yours and use it without the
> author/owner's consent, you are a criminal.

No. There are, and always have been strong protections for "fair use".

> I think artists are getting fed up with punk kids who think they can
> steal, steal, steal, steal and then hide behind some "new paradigm shift"
> mentality.

Yes, but many of them are also fed up with exploitation by studios.
http://www.salon.com/tech/feature/2000/06/14/love/

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