IP: Fwd: Sklyarov and AAP, etc.

[David Farber <dave () farber net>]

This was originally sent to a USACM discussion  list, and I am  forwarding 
it from there with Laurens permission. I  have attached the letter from AAP 
to the end.

Dave


> From: Lauren Weinstein <lauren () VORTEX COM>
>
>
> I think that AAP has made their position quite clear.  Their mentioning
> issues such as Cable TV piracy and such was particularly interesting, since
> (as far as I know -- if I'm wrong somebody please correct me) nobody was
> ever really prosecuted for merely explaining how cable or satellite
> scrambling systems worked, only for actually selling such devices.  And in
> those cases, fair-use issues don't enter in at all, unlike the Sklyarov
> case, where both non-infringing fair-use concerns and international
> jurisdiction issues play major roles.
>
> All the legal blabber about exceptions in the DMCA for security research
> and such were pretty well blasted by Ed Felten's experiences with the RIAA.
>
> Would AAP also support a U.S. author being arrested and prosecuted when they
> visit some foreign country, if in their past they'd written a negative
> commentary about that country's leader?  Such writings are prohibited in
> some places in the world.  Insanity.
>
> One can easily imagine how AAP will feel about the new restrictions coming
> down the line that will vastly limit consumers' ability to make digital TV
> recordings, even for their own use, and the other oppressive content control
> plans for digital TV and related data systems.  Do consumers have any
> inkling about what's coming?  Of course not.
>
> Meanwhile, people can write books about building explosives and committing
> murders, and nobody will bother them.  But talk about a weak e-book security
> system and you end up in chains.  Is this what we've allowed America to
> become?  Of course, there are those who would assert that the solution is
> implementing controls over all those other categories of speech as well, and
> I fear that all it would take to create a massive push to "modify"
> constitutional speech rights would be some dramatic horrid event that
> appeared to relate to "unfettered" free speech in some way.
>
> Unfortunately, we (that is, the technical and academic community, by and
> large) have been dramatically unsuccessful at positively influencing such
> events.  This is perhaps to be expected since we don't have the millions to
> grease the palms of the powers-that-be with professional lobbyists, but even
> beyond that we don't do a good public relations job.
>
> We tend to focus our arguments on technical issues that most people don't
> understand and don't care about.  Some of the media (in the current case)
> have used events such as public demonstrations to portray the anti-DMCA
> forces as kooks and anti-business fanatics.  Meanwhile, the other side is
> chuckling all the way to the bank.  I might add that I would expect little
> but negative results and bad publicity from attempting to tie this case to
> the release of the (purported) drug offender in Russia.  The reality is that
> relatively few people among the public care about that kid and his problem,
> but Sklyarov is symbolic of big bucks to some very big businesses.
>
> ACM should dump AAP -- loudly and publicly.  And ACM should attempt to take
> as many like-minded other organizations with them from AAP as possible.
> We damn well better start getting our acts together, and doing more than
> preaching to the choir.  These issues go way beyond ACM, and I for one am
> not willing to sit around and watch the steamrollers crushing away at these
> rights without at least putting up a public fight.
>
> The PFIR statement on the Sklyarov arrest is at:
>
>   http://www.pfir.org/dmca-arrest
>
>
> --Lauren--
> Lauren Weinstein
> lauren () pfir org or lauren () vortex com or lauren () privacyforum org
> Co-Founder, PFIR: People For Internet Responsibility - http://www.pfir.org
> Moderator, PRIVACY Forum - http://www.vortex.com
> Member, ACM Committee on Computers and Public Policy
> "Reality Reset" Columns - http://www.vortex.com/reality

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.



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