IP: More on AAP, librarians, Waco, Ruby Ridge, and the Sklyarov case

[David Farber <dave () farber net>]

> From: Declan McCullagh <declan () well com>
>
> Five items follow:
>
> 1. A note from the American Association of Publishers to USACM (forwarded 
> via Dave Farber's interesting-people list).
> 2. Matt Gaylor's response to AAP's Judith Platt about her Waco/Ruby Ridge 
> reference (Judith's message is here: http://www.politechbot.com/p-02345.html)
> 3. A response from Mark Rosenzweig, American Library Association Councilor 
> at large
> 4. A response from David Wagner, an assistant professor of computer 
> science at UC Berkeley
> 5. A link to a relevant St. Petersburg Times column by Robyn Blumner
>
> -Declan
>
> **********
>
> August 1, 2001
> TO: U.S. ACM Public Policy Committee
> FR: Allan Adler, VP for Legal and Governmental Affairs, AAP
> RE: Digital Millennium Copyright Act ("DMCA")
> This memorandum is intended to respond to the letter dated July 26, 2001
> which was sent to AAP President Pat Schroeder by Barbara Simons and Eugene
> Spafford, Co-Chairs of the U.S. Public Policy Committee of the Association
> for Computing Machinery ("ACM"), regarding ACM's opposition to the
> anticircumvention provisions of the DMCA.
> AAP is aware that ACM has "consistently opposed" the anti-circumvention
> provisions of the DMCA. During Congressional consideration of the DMCA in
> 1998, I recall accepting an invitation to attend a meeting of ACM's Public
> Policy Committee to debate a representative of the American Library
> Association regarding the merits of the then-pending legislation. Although
> the ALA representative failed to participate, I used the opportunity to
> have a lively discussion of differing AAP and ACM viewpoints with Committee
> members.
> Still, not all AAP members see eye-to-eye on every issue that AAP
> addresses. AAP's support for the DMCA, however, has on many occasions been
> vigorously detailed on the public record, both during the period of its
> enactment and in subsequent related rulemaking proceedings and amicus
> briefs. In each instance, the positions adopted by AAP were vetted through
> appropriate internal channels, usually the Copyright Committee but
> sometimes also through the Board or its Executive Committee. AAP's
> President and CEO signs off on all press releases issued by AAP, and AAP
> staff are (as a practical matter) able to act on established AAP positions
> without further clearance as part of their daily activities on AAP's
> behalf. AAP members are, of course, welcome to make their views known to
> AAP and elsewhere whether they agree or disagree with positions that AAP
> has taken.
> The specific points you raise regarding the anticircumvention provisions of
> the DMCA are familiar to AAP because all of them were raised and considered
> during the process leading up to enactment of the statute. AAP respectfully
> continues to disagree with ACM's stated positions for the following reasons:
> Requiring proof of infringement or intent to infringe, as a condition for
> enforcing the anticircumvention prohibitions, would nullify their purpose.
> Even without the DMCA, copyright law enables legal action against
> infringers. The anticircumvention provisions are supposed to be
> supplementary to this protection, not merely redundant, in acknowledgment
> of the enhanced risks to copyright protection posed by digital technologies
> like the Internet. The DMCA does not, and need not, authorize copyright
> owners to use technological measures to protect their rights; nothing in
> the law has ever prevented them from doing so. But the DMCA, in light of
> the WIPO Treaties' obligation to provide "adequate legal protection and
> effective legal remedies against circumvention" of such technological
> measures, recognizes that such measures will never provide meaningful
> supplementary protection against the capabilities for flawless digital
> reproduction and instantaneous digital distribution of protected works by
> unauthorized users unless the technological measures are themselves
> protected by law against circumvention. Otherwise, the use of technological
> measures would be futile because, as we've all seen, there would
> undoubtedly be constant and, inevitably, successful efforts made to break
> them. Making protection of the technological measures contingent on whether
> the copyright owner could prove infringement or intent to infringe would
> lead to the establishment of a competitive market for circumvention tools,
> and would allow individuals to expose ostensibly protected copyrighted
> works to unauthorized exploitation provided that they did so without
> themselves actually infringing or intending to infringe upon those
> works much as Mr. Sklyarov is alleged to have done in creating software
> that does not itself infringe upon the ostensibly protected "ebook" but
> strips away the technological protection measures provided by Adobe so that
> the "ebook" content is left vulnerable to infringement by others.
> Since you apparently recognize that there is no device which is currently
> capable of distinguishing "fair use" from foul, you can understand why the
> manufacture, distribution, etc. of circumvention devices is illegal under
> the DMCA even when, as in the case of technological measures that protect
> rights of a copyright owner under copyright law (as distinct from "access
> control" measures), the act of circumvention is not itself illegal. You
> should also understand why, since "circumvention" is a distinct concept
> from "infringement," there can be no "fair use" exception to the
> anticircumvention provisions. This is not a new concept in federal law.
> Similar laws supporting the use of technological measures with
> prohibitions against circumvention and against trafficking in circumvention
> devices were established in related contexts long before enactment of the
> DMCA; see, e.g , 47 USC 553(a) (prohibiting unauthorized reception of cable
> TV service, and the manufacture or distribution of equipment intended for
> the unauthorized reception of cable TV service); 47 USC 605(e) (prohibiting
> the unauthorized decryption of satellite cable programming signals, and the
> manufacture, assembly, import, and sale of equipment used in the
> unauthorized decryption of satellite cable programming). Neither of these
> laws, intended to permit control over copyrighted video programming, has
> any "fair use" exception. Again, it's not difficult to understand why when
> one considers the practical implications of such an exception, especially
> given some of the mistaken notions about "fair use" that are routinely
> circulated as articles of faith in some circles.
> Contrary to mistaken popular beliefs, "fair use" is a defense only against
> infringement. It does not provide a right of access to any work or, perhaps
> more to the point, to any particular copy of a work. Moreover, nothing in
> copyright law requires a copyright owner to facilitate or, again more to
> the point, to make it easy for someone to engage in any "fair use" of a
> work. Similarly, nothing in the law prohibits copyright owners from making
> "fair use" more difficult through the use of anti-theft measures in
> connection with a particular copy of a work. If it were otherwise, "fair
> use" could be invoked to justify breaking into a bookstore, library,
> theater or even a private home so long as the purpose of doing so was to
> make "fair use" of a particular copy of a copyrighted work found
> within. People could insist on a right to enter a movie theater without
> charge in order to watch a movie and, perhaps, even copy a portion of it
> for the purpose of educational use or criticism. The hypotheticals can go
> on and on.
> Far from being "overly-broad" in its approach to "multi-use technologies,"
> the standards created in the DMCA by Congress are clearer and much more
> specific than the largely impractical "capable of substantial noninfringing
> uses" test concocted by a closely-divided Supreme Court seventeen years ago
> in the Sony case. In order for a person manufacturing or distributing a
> device to run afoul of the anticircumvention standards, the device must (1)
> be "primarily designed or produced for the purpose" of circumventing, (2)
> have "only limited commercially significant purpose or use other than" to
> circumvent, or (3) be "marketed by that person or another acting in concern
> with that person with that person's knowledge for use in"
> circumventing. These standards clearly do not threaten VCRs or PCs and can
> hardly be characterized as traps for the unwary.
> As for the exemptions from the anticircumvention provisions, well, they may
> not be as broad as ACM would prefer, but AAP believes they represent a fair
> attempt at balancing competing interests. The "reverse engineering"
> exemption, for example, essentially codified the existing caselaw as
> represented by Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th
> Cir. 1992). The "encryption research" exemption broadly permits such
> research, together with the use of appropriate tools, provided that
> criteria for "good faith encryption research" are met. The underlying
> concept of the exemption is to ensure that such research is not merely a
> pretext for circumvention, and to emphasize that valuable legitimate
> research can be conducted without facilitating infringement. Beyond this,
> the "security testing" exemption, which focuses on circumvention to access
> a computer, computer system, or computer network, was included precisely in
> recognition of ACM's point that merely providing an "encryption research"
> exemption would be too limiting with respect to computer security research.
> As a final point, I would urge interested ACM members to carefully read not
> only the actual language of the DMCA anticircumvention provisions, but also
> the legislative history as set forth in the House Judiciary Committee's
> Section-by-Section Analysis of the House-Passed Version of the Legislation,
> 105th Cong., 2d Sess. (Serial No. 6) (Sept. 1998) and the House-Senate
> Conference Report on the Final Version of the Legislation, 105th Cong., 2d
> Sess. (Rpt. No. 105-796) (Oct. 1998). Hopefully, these explanations of the
> legislative intent behind the DMCA's provisions will help to allay some of
> ACM's concerns.
>
> **********
>
> Date: Sat, 4 Aug 2001 15:50:26 -0400
> To: jplatt () publishers org
> From: Matthew Gaylor <freematt () coil com>
> Subject: Association of American Publishers Derides Ruby Ridge & Waco types
> Cc: Declan McCullagh <declan () well com>, lisa_bowman () zdnet com,
>         politech () politechbot com
>
> Excerpted via http://www.politechbot.com/p-02311.html :
> >  >...librarians are finding themselves the subject of rhetoric usually
> >  >reserved for terrorists or revolutionaries. "They've got their radical
> >  >factions, like the Ruby Ridge or Waco types," who want to share all
> >  >content for free, said Judith Platt, a spokeswoman for the Association of
> >  >American Publishers.
>
> Judith,
>
> It's a sad day in America when criticism over the shooting of an unarmed 
> women with a baby in her arms by a FBI sharpshooter (Vicki Weaver shot in 
> the head by FBI's Lon Horichi at Ruby Ridge) and the assault and 
> subsequent inferno that killed over 80 men, women and children by 
> government agents at the Branch Davidian Church in Waco, TX is considered 
> radical.
>
> Regards,  Matt Gaylor-
>
> { Judith Platt may be reached at <jplatt () publishers org> }
>
> [Also sent to Freematt's Alerts, thousands of subscribers worldwide.]
>
> [Archive and subscription info at http://groups.yahoo.com/group/fa/ --DBM]
>
> **********
>
> Date: Sat, 4 Aug 2001 17:51:01 -0500
> To: Judith Platt <jplatt () publishers org>,
>         "'declan () well com'" <declan () well com>
> From: Mark Rosenzweig <iskra () earthlink net>
> Subject: AAP v."extremist" librarians (Waco-style)
> Cc: srrtac-l () ala org, plg-l () listproc sjsu edu
>
> What follows is one ALA Councilor's reaction(mine) to the AAP's current
> spokesperson re: librarians and copyright....
> +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
>
> Dear Ms. Platt
>
> You wrote the letter below in reply  to Declan McCullaghs' response to
> publication of your allegations about librarians ("...librarians are
> finding themselves the subject of rhetoric usually reserved for terrorists
> or revolutionaries. "They've got their radical factions, like the Ruby
> Ridge or Waco types," who want to share all content for free, said Judith
> Platt, a spokeswoman for the Association of  American Publishers...")
>
> As you know, your quoted remarks in that recent article
> http://news.cnet.com/news/0-1005-201-6545588-0.html followed the earlier,
> unexpectedly yet unabashedly hostile public statement of Pat Schroeder on
> behalf of the publishing industry, that, put quite simply "Librarians are
> the enemy", a brief and bold characterization which was never effectively
> disclaimed as the  emphatically-made, yet entirely erroneous
> characterization it was.
>
> Now you begin a reply to Mr. McCullagh, 'explaining' yourself...
>
> "In case anyone out there is REALLY interested in the truth re the ZDNEt
> story on librarians and copyright, I was quoted completely out of context."
>
> Why wouldn't librarians "REALLY" be interested in the truth?
>
> One truth one discerns is that you can't disguise the fact that you believe
> you are, somehow, the injured party here and that your remarks, "taken out
> of context", were entirely innocent.
>
> Yet how innocent can they be when they were entirely consistent with - and
> a rather grotesque elaboration of - Pat Schroeder's earlier battle cry
> that, for publishers, "Librarians are the enemy"? Your saying what you did
> strongly suggested to most people the continuity of that attitude in the
> AAP. That's the larger "context" of your remarks as I see it.
>
> You now say:
>
> > "My reference to "Ruby Ridge," while perhaps ill-advised, was
> > used metaphorically to indicate an extremist position out of the
> > mainstream--a very radical view that has been expressed in some quarters
> > (although not by any librarians of my acquaintance...)"
>
> Your reference to "Ruby Ridge" (and Waco) was CERTAINLY "ill-advised."
>
> It was also entirely inappropriate and distasteful. It wouldn't be fair to
> use it to characterize ANY 'factions' in the library field , including
> those who actually take the position you describe as "radical" and
> "extremist" (you claim now that  you don't even know any such factions or
> persons ).
>
> What's "extremist" was your analogy of rational, non-violent professionals,
> in this case librarians -- some holding a different philosophical point of
> view than your bosses' on a contentious issue --as, on that account, IN ANY
> WAY comparable to gun-toting cultists (your references to Waco, Ruby Ridge)
> who were considered so dangerous (in my opinion, without justification)
> that they were ruthlessly destroyed by the government!
>
> When all is said and done, I suppose the AAP believes (and this is the
> implicit meaning of your initial remarks on their behalf) that it should be
> clear that anyone, any librarian "radical", who suggests that whatever the
> publishing industry  feels they need to do to maximize their profits may
> not necessarily be in the public interest, would deserve "metaphorically"
> having their public library burned down with the "radicals'" inside, a la
> Waco.
>
> Mark Rosenzweig
> ALA Councilor at large [for ID purposes only]
> Councilor, SRRT/ALA (Social Responsibilities Round Table/ALA )  [for ID
> purposes only]
>
> **********
>
> From: David Wagner <daw () cs berkeley edu>
> Subject: FC: AAP's Judith Platt replies to Politech post, clarifies remarks
> To: jplatt () publishers org
> Date: Sat, 4 Aug 2001 12:52:59 -0700 (PDT)
> Cc: declan () well com
>
> In article <5.0.2.1.0.20010804120845.0203c210 () mail well com> you write:
> > From: Judith Platt <jplatt () publishers org>
> > To: "'declan () well com'" <declan () well com>
> > Subject: The ZD Net Story
> > Date: Mon, 30 Jul 2001 10:40:19 -0400
> >
> > [...]  My reference to "Ruby Ridge," while perhaps ill-advised, was
> > used metaphorically to indicate an extremist position out of the
> > mainstream--a very radical view that has been expressed in some quarters
> > (although not by any librarians of my acquaintance) that all computer code
> > is protected speech under the First Amendment and that no one--neither a
> > publisher nor an author, nor anyone else-should be able to encrypt
> > copyrighted material to protect it from unauthorized use and reproduction,
> > and expect the encryption to be viewed as any other lock used to protect
> > property. [...]
>
> Thank you for your note.  I wanted to argue that this is hardly an
> extremist position, when one considers the important differences between
> everyday locks and the special privileges the DMCA accords to copy
> protection systems.
>
> In particular, when we talk about physical locks, I am perfectly free
> to break open locks on my own property (I can't cut a lock protecting
> someone else's property, but I certainly can cut a lock protecting my own
> property if I like).  However, when it comes to copy protection systems,
> the DMCA appears to make this illegal: I am no longer allowed to break
> the encryption on my own property.
>
> One consequence of this rather strange prohibition is that it
> threatens scientific research into the field of copy protection
> systems, encryption, and computer security.  The study of codemaking
> is fundamentally interwoven with the sudy of codebreaking: One cannot
> build secure systems without knowing how they may be attacked, and this
> involves trying to break our own systems to see how strong they are.
> Under some readings of the law, publishing tools and techniques for
> this purpose may be prohibited by the DMCA, and some researchers (such
> as Prof. Felten at Princeton) have already felt the effects of the DMCA.
>
> I am deeply concerned that the AAP's position is short-sighted and
> will stunt innovation in copyright protection technology by chilling
> scientific inquiry.  As a scientist working in this field, I can say
> that the DMCA leaves me scared to continue working in this area.
>
> I hope that the AAP will re-consider its position.  The AAP should
> clearly distinguish circumvention for the purpose of actual copyright
> infringement from circumvention in service of scientific inquiry.
>
> -- David Wagner
>
> Disclaimer: I am an assistant professor of computer science at UC
> Berkeley, but I wrote solely in my own personal capacity as someone
> interested in furthering the science and practice of computer security.
>
> **********
>
> From: Mark Dallara <mdallara () tampabay rr com>
> To: declan () well com
> Subject: St. Pete Times on "Internet copyright tizzy"
> Date: Sun, 05 Aug 2001 13:29:50 -0400
>
> Declan,
>
> The DMCA and Dmitri Sklyarov both get a mention in this column by the
> former director of the Florida ACLU:
>
> http://www.sptimes.com/News/080501/Columns/Internet_copyright_ti.shtml
> Internet copyright tizzy will pass
> By ROBYN E. BLUMNER
> © St. Petersburg Times,
> published August 5, 2001
>
> Re,
> Mark Dallara
> www.xenu-city.net
>
> **********
>
>
>
>
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