DMCA 10, First Amendment 0

["Charles Brown" <CharlesB@xxxxxxxxxxxxxxxxxxxxx>]

Does this article violate the DMCA?
Friday August 17
- By Grant Gross -
<http://www.newsforge.com/article.pl?sid=01/08/17/207208&mode=thread>

In the three years since the U.S. Congress passed the
Digital Millennium Copyright Act, the law's anti-
circumvention provisions have now gone head to head with
the U.S. Constitution's First Amendment in a handful of
cases. So far, freedom of speech is getting its ass
kicked by the DMCA. The DMCA's collision course with
freedom of speech and the press was a topic of much
conversation during a panel discussion Wednesday evening
after Princeton Professor Edward Felten's team finally
presented the paper describing their hack of the Secure
Digital Music Initiative's watermarking technologies.

Felten's continuing lawsuit asks that the anti-
circumvention provisions of the DMCA be declared
unconstitutional. The U.S. recording and movie
industries have used those provisions as a threat
against scientists and journalists who would dare to
even discuss technologies that "circumvent" those multi-
billion dollar industries' controls on what buyers do
with their products.

In my limited understanding of constitutional law, the
First Amendment freedoms normally trump any conflicting
law Congress can come up with. That's not much comfort
to the editors at 2600 Magazine, who were successfully
sued last year for linking to the DeCSS code, which
allows Linux users to decode and play DVDs.

However, Cindy Cohn, legal director of the Electronic
Frontier Foundation, told audience members at the
Wednesday panel the assumptions that the First Amendment
reigns supreme can no longer be taken for granted after
a judge ruled in August 2000 that 2600 Magazine is
barred from even linking to the DeCSS code because of
its supposed "bad intent." That case, in which members
of the Motion Picture Association of America sued 2600,
is now being appealed.

Cohn said that "bad intent" test is highly subjective,
and I'll add, even for mainstream media that don't have
the largely undeserved reputation that 2600 has as being
a haven for script kiddies. "It's pretty cold comfort to
think that later on, someone might take a look over your
shoulder and say, 'It's actually OK what you did,' "
Cohn said, in response to an audience question on the
DMCA's impact on journalism. "That isn't the kind of
thing that gives a lot of journalists a lot of comfort."

While some journalism groups did file statements in
support of 2600, the potential impact of the DMCA on
news reporting hasn't prompted a lot of protest in the
mainstream media.

When journalists scream about their First Amendment
rights eroding, few people sit up and take notice
because they think it doesn't affect them. But consider
this: If you don't care about the media's ability to do
its job, you probably should care that there's now a
growing list of cases where the DMCA and similar laws
have been used in attempts to silence free speech.
Including the 2600 case, Universal v. Reimerdes (a.k.a.
the New York DVD case), there's also the California DVD
case, DVD-CCA v. Bunner, in which the DVD Copy Control
Association sued dozens of Web sites publishers,
including the Linux Video and DVD Project's Matthew
Pavlovich, for allegedly violating the California
Uniform Trade Secrets Act for posting the DeCSS code.
Pavlovich's case, a curious one because LiViD is hosted
in Germany and that's nowhere near California at last
report, is also under appeal.

Of course, there's also the Felten case, in which the
recording industry threatened in April to sue Felten's
team under the DMCA if the team released its successful
compromises of the SDMI anti-copying technology. The
Felten team presented its paper this week after the
recording industry gave its "permission," but Felten's
continuing lawsuit against the recording industry and
the U.S. government is based on the fact that Felten's
team -- or anyone else for that matter -- has no
guarantee against a DMCA-driven lawsuit for any other
presentations of the SDMI material or research based on
that material.

Less connected to freedom of speech on its face, but one
with potential impact, is the Dmitry Sklyarov case, in
which the Russian programmer wasn't sued, but actually
arrested, under the DMCA for trafficking in
circumvention technologies. DMCA makes profiting on
circumvention methods an actual crime. Like the
Pavlovich case, the Sklyarov case is confusing because
he was arrested while visiting the United States to talk
at DefCon about his program that allows users to convert
Adobe eBooks into other formats. The last time I
checked, U.S. citizens weren't subject to Russian laws.

So how could a news article violate the DMCA? I'd never
actively flaunt law-breaking of any kind, but in the
interest of journalism, let's count the ways:

By linking to circumvention technology, as 2600 did.
It's not out of the realm of possibility that such a
news article at a for-profit Web site -- shhhh, let's
not mention any names -- could be viewed as trafficking
in and profiting from circumvention technologies, and
thus be a criminal violation of the DMCA, a la Sklyarov.
By linking to scientific research about circumvention
technologies, such the Felten paper. Remember, Felten
and crew don't have the recording industry's guarantee
against a lawsuit on any research beyond the Wednesday
presentation. By simply critiquing research such as
Felten's. If I were a signal processing expert, I might
say that the Felten team's research was brilliant in
exposing the simplistic attempts by the SMDI Foundation
to watermark music tracks. The Felten team appeared to
uncover the watermarks easier than than a dog digs up a
bone. During Wednesday's panel discussion, American
University law professor Peter Jaszi said critiques of
Felten's work -- admittedly more brilliant critiques
than I've just offered -- may "theoretically" be
interpreted as trafficking in circumvention
technologies.

Other examples exist, I'm sure. Cohn said a journalist
who hires the 14-year-old down the street to figure out
the password on a protected disk containing government
"secrets" would likely be violating the DMCA.

So why aren't the mainstream media up in arms about the
DMCA? Good question, says Cohn.

My take: Big Media sees the people fighting this battle
as fringe players. Those "hackers" are tilting at
windmills Big Media thinks it'll never care about --
until the New York Times or ABC News gets sued for
reporting on a circumvention technology. Then we'll all
hear a lot of screaming, and we'll refrain from saying,
"I told you so."

Cohn also suggested that mainstream reporters covering
the issue are trying to appear objective. She also
suggested a more sinister reason most of Big Media
doesn't seem to care: "I suspect it has something to do
with the fact that there's a lot of media conglomeration
now, and a lot of the mainstream media in the U.S. is
actually owned by content holders.

"If I were to speculate, I might speculate along those
lines," she joked, "but I have no evidence, and I'm not
normally prone to speculation."