What's so wrong with DMCA?
Unintended consequences
The Digital Millenium Copyright Act (DMCA) is 1998 legislation that amended U.S. copyright law.
It's basic intent was to strengthen protections for authors and other "content creators"
in the face of the proliferation of digital technologies that, some say, eroded those protections.
Most people, including the most vocal opponents of the DMCA, would agree: these are well-meaning goals.
The problem lies in (what I would like to believe are) the unintended consequences of the law.
The DMCA imposes a ban on certain kinds of technical innovation and stiff penalties for
violating that ban.
Thou shalt not create tools
I believe the "root of all evil" in the DMCA is in the
"Circumvention of copyright protection systems"
section of the U.S. Code where it says:
"No person shall manufacture, import, offer to the public
provide, or otherwise traffic in any technology, product, service, device,
component, or part thereof, that is primarily designed or produced for the
purpose of cicumventing a technological measure that effectively controls
access to a work protected under this title;..."
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Loosely translated this says, "Don't make or sell tools to pick the locks or otherwise break the protections on stuff."
Sounds reasonable doesn't it?
Ninety-nine senators thought so.
So what's the problem?
There are two. This law fails to acknowledge that:
- almost any tool you name can be put to both legal and illegal uses.
- the uses for a tool can change over time. (...and this is especially true of software.)
Notice that software isn't even explicitly mentioned in the above quote,
so wouldn't this make crowbars illegal?
A crowbar is "primarily designed" for breaking things, and, it's incidentally ideal for breaking into a car.
Perhaps, a crowbar isn't designed primarily for breaking and entering, but you can buy tools from
Hightechtools.com that are indeed "primarily designed" for bustin' into cars!
Now I believe some states do restrict the possession of these tools, but they're not uniformly banned
nor is it illegal to manufacture or sell them (unless the FBI simply hasn't had time for
Hightechtools.com).
These tools aren't uniformly illegal because there are situations in which breaking into a car is legal,
such as when you've locked your keys inside your running car in a 10 minute airport parking zone.
(The author's done that.)
Software are just soft tools
None of these facts really contradict the DMCA because, being part of copyright law, the DMCA
deals with information technology, electronic hardware and software in particular.
But why should computers and software tools be treated differently than "regular" physical tools?
Anyone who's used a spreadsheet to not only "do the math" but simultaneously
generate graphs and reports understands that software products are tools just as much as pliers and screwdrivers.
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Not all who copy are thieves
Dmitry Sklyarov
is sitting in a U.S. jail for "manufacturing" and "trafficking in" a software product
called the
Advanced eBook Processor
that can circumvent the encryption in an Adobe Systems(TM) eBook.
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It can extract the text so that you don't subsequently need Adobe's "Acrobat (R) eBook Reader" to read it.
Why should that be illegal if you've paid for the content of the eBook?
Yes, indeed, Mr. Sklyarov's tool could be used to manufacture illegal copies of an eBook.
...But then so can the photocopiers in Kinkos or your home office.
Your cassette recorder could be used to manufacture illegal copies of your CDs.
More recently, a CD burner can do even better.
None of these devices is illegal because you can legally, subject to certain restriction, make copies
of material you've lawfully acquired.
The "Fair Use" parts of copyright law guarantee you this right.
As with absolutely any technology one can name the eBook Processor has legal as well as illegal uses.
Dare I even bring up guns?
Stealing copyrighted material is bad.
However, not all copying is theft.
The Internet is a U.S. government tool of war
But this is the tip of the iceberg of the flaw in the DMCA.
The law's focus on what a tool is "primarily designed" for is misguided.
The Internet itself was "primarily designed" by the Department of Defense as a communications tool of war,
but is that relevant now?
We're surrounded courtesy of NASA by consumer products that were originally "primarily designed"
for use in space flight.
The world changes, and one cannot possibly foresee all the potential uses of a tool or technology.
Who'd have guessed all the things duct tape could fix?
Innovation is partly the process of finding new uses for old things, new applications for old tools.
Given this, it's technological suicide to ban invention or creation of any supposed category of tools.
The categories will change.
And this is even truer in the world of software.
Cryptography itself, the technology at the heart of the DMCA, provides dramatic evidence of this.
Most modern cryptographic methods are derived from a branch of mathematics called number theory.
For centuries mathematicians regarded number theory as an intellectual recreation with no
practical utility.
It was the purest of "pure mathematics" because it had no use.
Nowadays you wouldn't be able to securely HTTPS to
E*Trade
without number theory's contributions to cryptography.
How could thousands of mathematicians, generally bright people, have overlooked number theory's relevance
to cryptography for centuries?
Because it didn't apply in their time!
The very usefullness of number theory didn't exist before a little device called the
computer made modern cryptographic methods feasible.
The kinder, gentler side of the Advanced eBook Processor
Still skeptical?
At least one "legitimate" use of the eBook Processor has already been identified.
The eBook Processor could be used to extract the text of an eBook for the purpose of passing
the text through an audio reader for the blind.
Adobe System's visual "Reader" isn't going to do the blind individual who has paid for the content
of an eBook much good.
So who loves the DMCA?
After all it passed 99-0.
Congress in large part delegates authorship of copyright law to industry.
This isn't entirely unreasonable since industry has the most to gain or lose from copyright law.
Problem is, "industry" may be loosely translated to mean "Hollywood and the large
publishing concerns which regularly sleep with Hollywood."
...And we've all seen how eager those publishing concerns are to leap into the 21st century.
A changing world requires a company to adapt.
Adaptation costs, and that upsets otherwise comfortable profit margins.
Short-sighted execs never see opportunity in change; they only see expense.
They believe buying new laws to preserve the old order is less expensive than adaptating to the new world.
After years of very comfortable profit margins, they can certainly afford a few politicians.
'Nuff said?
Rewrite or repeal
The draconion ban on creation of "circumvention tools" (and similar prohibitions on "reverse engineering"
not otherwise mentioned here) were motivated by the agenda of a single interest group,
the publishing industry, with little regard for the basic realities of technical innovation.
This ban arguably even infringes on 1st Amendment rights of free speech, in so far as software constitutes
an expression of intellectual understanding.
(It's no accident programming languages are called languages.)
Until this law is at least rewritten, if not repealed, it will be an obstacle to technological advancement.
The detainment of Mr. Sklyarov has given researchers and other info tech workers worldwide reason
to think twice before visiting the U.S. and contributing their creative energies.
It's unfortunate that it took the imprisonment of Dmitry Sklyarov to mobilize us in the technical
community against this misguided law, but it's not too late to prevent further miscarriage of justice.
Please, write your Senators and congressfolk.
- Section 1201, Paragraph (b) of Title 17 of the U.S. Copyright Code. This is one
section added or amended by the DMCA.
- Of course, software tools, like physical tools may be created to different levels of
quality and your mileage with a particular vendor's tools may vary.
- Never mind for the moment that Adobe's supposed "protection mechanism" was so weak
that your precocious 13-year old could probably have figured it out him or herself,
and according to security expert
Bruce Schneier, CTO of CounterPane Internet Security
"...any system where the device and the secrets within the device are under
the control of different people has a fundamental security flaw." (Secrets
and Lies)
(C) 2001 Roger Kramer, software engineer for
Be, Inc
The author hereby grants unlimited use of this document
to all interested parties without compensation provided only that this copyright notice appears in all
reproductions.
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