The New, Improved DMCA

[smoothmoniker]

I posted this at my blog this morning, but I'm interested in hearing the feedback of the cellar crew as well.

The New, Improved DMCA (or, Devil Went Down To Georgia, Came Back With Our Souls In A Leather ManPurse)

Good News! After years of lobbying by EFF and other freedom of information advocates, the Digital Millennium Copyright Act is being rewritten.

The Bad News? It's being rewritten by Disney, Warner Brothers, and the RIAA.

The original DMCA altered the law's understanding of copyright and technology in a radically new way. It placed the assumption of guilt on new technologies, and limited their development and distribution unless the developer could demonstrate that they could not be used to infringe on copyrighted material.

Let's say I realize that my dance moves could use some updating. To this end, I buy a DVD of <a href="http://www.amazon.com/exec/obidos/redirect?link_code=ur2&tag=addisonroad-20&camp=1789&creative=9325&path=http%3A%2F%2Fwww.amazon.com%2Fgp%2Fproduct%2FB0002234RM%2Fqid%3D1146067764%2Fsr%3D1-4%2Fref%3Dsr_1_4%3F%255Fencoding%3DUTF8%26s%3Ddvd%26v%3Dglance%26n%3D130">You Got Served,</a><img src="http://www.assoc-amazon.com/e/ir?t=addisonroad-20&amp;l=ur2&amp;o=1" width="1" height="1" border="0" alt="" style="border:none !important; margin:0px !important;" /> and watch it religiously for 3 months straight. When I buy that DVD, I have some inherent freedom in how I use that DVD. For example, I have the right to watch it as many times as I want. I have the right to make a copy of the DVD as a personal backup, in case the original gets damaged by excessive play. I have the right to load it into iMovie, and edit the video down to just the dance sequences, so that I don't have to fast-forward through the hip urban-esque dialog every time I watch it. I can move 90 TVs into my garage, and make 90 copies of my edited version, setting them to loop continuously, so that my practice space becomes a Fakey Hip Hop total immersion experience.

All of these things are consider fair-use of the DVD that I purchased, under copyright law. I have the right to do these things with the Intellectual Property (and I use that term very graciously) license that I purchased with that DVD. What the DMCA did, however, was make it illegal for anybody to develop and distribute software that circumvents the copy encryption on the original DVD, so that I can actually do these things.

In other words, the owners of <a href="http://www.amazon.com/exec/obidos/redirect?link_code=ur2&tag=addisonroad-20&camp=1789&creative=9325&path=http%3A%2F%2Fwww.amazon.com%2Fgp%2Fproduct%2FB0002234RM%2Fqid%3D1146067764%2Fsr%3D1-4%2Fref%3Dsr_1_4%3F%255Fencoding%3DUTF8%26s%3Ddvd%26v%3Dglance%26n%3D130">You Got Served</a><img src="http://www.assoc-amazon.com/e/ir?t=addisonroad-20&amp;l=ur2&amp;o=1" width="1" height="1" border="0" alt="" style="border:none !important; margin:0px !important;" />have the right to encrypt their works in such a way that it prevents me from doing things that I am legally entitled to do with the DVD I purchased. It also makes it illegal for anyone to distribute technology that <a href="http://handbrake.m0k.org/" target="_blank">removes that encryption</a> so that I can continue my perfectly legal activities. And, I suppose, it also makes it illegal for me to direct you to that link, so that you can do the same.

This is what I mean when I say that the DMCA assumes the guilt of new technologies. There are perfectly legal reasons to want to use a software like HandBrake to rip a DVD, but the DMCA doesn't address the legality of final purposes for technology, it assigns legality to the technology itself.

I'm trying to think of what an appropriate analogy might be. There are illegal uses of a washing machine. I might, for example, use a washing machine to remove blood stains from clothing used to commit a crime. This is an illegal act, and the washing machine is the technology that I used in committing the illegal act.

Now suppose that washing machine manufacturers wanted to prevent you from using their product for this kind of illegal activity. Because they can't figure out a way to determine your intent when you use the machine, they instead cripple the machines so that they will not work whenever there is blood on your clothing.

If your childhood was anything like mine, you know that there are perfectly legal reasons why you might need to wash blood out of clothing. So, you hire a handyman to come to your house to remove the device on the washing machine that stops it whenever blood is present.

Here's how the DMCA would apply to washing machines - it presumes the guilt of the new technology (you must be using your washing machine to commit a crime), allows the manufacturer to prevent illegal activity in a way that also limits a vastly wide range of perfectly legal activities (no washing blood), and makes it illegal for you to bypass this limitation in order to pursue legal activities (the handyman is now a federal criminal).

The EFF has a fantastic <a href="http://www.eff.org/IP/DMCA/?f=unintended_consequences.html" target="_blank">look back</a> at the unintended consequences of this law in the 7 years since it's passage. It has limited scientific study, academic discourse, new technology research, artistic expression, and free-market competition, and not just in a vague, hypothetical way. It has actually limited real cases of each of these things, in substantive and specific ways.

So, why am I hashing this out now? Congress is <a href="http://news.com.com/2100-1028_3-6064016.html?part=rss&amp;tag=6064016&amp;subj=news" target="_blank">considering a new rewrite of the DMCA</a>. The new version gives the Justice Department new far reaching rights in pursuing Intellectual Property crimes, including wiretaps, seizure of property, and impounding of records documentation (think SBC server logs for all internet access). It also increases the penalty for IP infringement to 10 years in prison.

<a href="http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002319----000-.html" target="_blank">10 years</a>.

Let me say it again.

10 years.

The current sentence for trafficking in child pornography is 7 years.

The current sentence for assaulting a police officer is 5 years.

The current sentence for unarmed assault is 6 years.

In other words, to paraphrase the UK news magazine <em><a href="http://www.theinquirer.net/?article=31256" target="_blank">The Inquirer</a></em>, the penalty for illegally distributing a copy of <a href="http://www.amazon.com/exec/obidos/redirect?link_code=ur2&tag=addisonroad-20&camp=1789&creative=9325&path=http%3A%2F%2Fwww.amazon.com%2Fgp%2Fproduct%2FB0002234RM%2Fqid%3D1146067764%2Fsr%3D1-4%2Fref%3Dsr_1_4%3F%255Fencoding%3DUTF8%26s%3Ddvd%26v%3Dglance%26n%3D130">You Got Served</a> is 10 years. However, tracking down the director and pummeling him into a 7 day coma will only get you six years.

Our current copyright law is being held hostage. It is being written and enforced by those who have a financial stake in decreasing the common rights of a creative and free people.

[glatt]

That's really good. I like the washing machine / blood comparison.

I'm really concerned about how the politicians today are bought and paid for by the industry.

[Ibby]

Damn, I hate people. People are stupid. I renounce all right to be known as a person.

Fucking politicians.

[WabUfvot5]

Justice is blind, it just gropes in your pocket to see how rich you are.

[Griff]

Nice writing, awful politics.

[Beestie]

Digital media will never be secure against unauthorized reproduction. Never.

[Ibby]

The question is whether or not WE will be safe from getting arrested for DOING the unauthorized reproduction.

(unauthorized reproduction always makes me think, like, breaking the one-child policy or something)

[Undertoad]

The thing is, I bet they don't want it to pass with the 10-year sentence intact. I bet that's just asking for the maximum possible so there's room to negotiate in the bill.

If the penalty for speeding is $100, the cops will pull you over. If the penalty is $10000, they won't. They would know that people charged with that hefty a fine would fight it with all due energy. At that point the speeder is no longer the easy taking, but a cornered snake. Pulling over a driver and not offering them a reduced fee becomes dangerous.

The RIAA has prosecuted plenty of 14-year-olds. The first one they address with a 10-year-sentence, it's all too obvious what's going on and the whole thing blows up large. It's Sony rootkit times a hundred and the business loses the trust of an entire generation.

Meanwhile, there is this perfect storm developing. Right now in 2006, we have cheap digital cameras and editing, itunes and video ipods, youtube, google video distributing for free, home theater and high-def TV entering the market. We have podcasting threatening all sorts of national audio and there is no reason it can't threaten video as well. Hey, let me go a step further: there is no reason it won't.

In 2000, we already had all the pieces in place for the beginning of the end of the newspaper business... but nobody could see it. Now they do, and are in a panic. Well, in 2006, we have in place all the pieces for the beginning of the end of all of LA.

They don't get it. This is the Internet, we can do whatever we want. Microsoft is starting to get it; if the customer doesn't trust us they will avoid us. I won't do business with someone who threatens to put me in jail... who would?

[Elspode]

The really stupid thing about all of this is that, when Hollywood or whoever turns out product that is both of high quality and affordable, they make *incredible, ridiculous sums of money off of it* through legitimate means.

I copy the hell out of DVDs. You know what impact that has on Hollywood's pocketbooks? Zero, because I still buy just as many as I ever did, and I would have never purchased the ones that I copy. But I only buy the top-notch stuff, because who the hell would spend money on, say, Tristan and Isolde or Fun With Dick and Jane (the remake...I can see buying the original with Hanoi Jane).

Come to think of it, I know of a few instances where, when a friend of mine was watching a DVD I had copied, he went out and purchased a copy for himself soon after.

Doesn't this mean that I get to bill Hollywood for my advertising efforts?

[dar512]

As most of you know (because I've said it over and over), I don't go along with copying cds or dvds in order to not have to buy a product. If you want it bad enough to copy it then you ought to buy it. And the same for giving copies to friends.

On the other hand, I don't like the DMCA or any of the recent DRM developments. It's unnecessarily restrictive to everyone. If I buy a cd I want to be able to play it anywhere I go. And I don't want to have to worry about scratching it.

My very first compiler for PCs was Turbo Pascal. That had a very reasonable license: Additionally, Borland was known for its practical and creative approach towards software piracy and intellectual property (IP), introducing its "Borland no-nonsense license agreement." This allowed the developer/user to utilize its products "just like a book"; he or she was allowed to make multiple copies of a program, as long as only one copy was in use at any point in time.

I still think that's one of the most reasonable approaches to IP.

[xoxoxoBruce]

*Slimy Lobbyist* Now c'mon, no Judge is going to give some kid the maximum 10 years, that's just there so he can really nail the Big Fish......y'know, put some teeth in the law......take a bite outta CRIME. *Slimy Lobbyist*

aside, what the hell is

<a href="http://www.amazon.com/exec/obidos/redirect?link_code=ur2&tag=addisonroad-20&camp=1789&creative=9325&path=http%3A%2F%2Fwww.amazon.com%2Fgp%2Fproduct%2FB0002234RM%2Fqid%3D1146067764%2Fsr%3D1-4%2Fref%3Dsr_1_4%3F%255Fencoding%3DUTF8%26s%3Ddvd%26v%3Dglance%26n%3D130">You Got Served,</a><img src="http://www.assoc-amazon.com/e/ir?t=addisonroad-20&amp;l=ur2&amp;o=1" width="1" height="1" border="0" alt="" style="border:none !important; margin:0px !important;" />

?

[smoothmoniker]

odd. it was all links up until just this evening, when it suddenly stopped rendering the html.

[Happy Monkey]

UT may have disabled more HTML than necessary after the "hacker" came through.

[Undertoad]

It's ALL HTML disabled or none, sorry.

[smoothmoniker]

bummer. that's a pretty steep price to pay. I mean, I get it, I guess, but still. bummer.