a perpetual work in progress
a little of everything
Posted: 2003-04-29 12:59
No comment(s)
Author: Phil Gengler
Section: Stuff

A lot's happened since my last update. Linus Torvalds shocked a lot of people by saying that he's not opposed to DRM on Linux, Larry Lessig and Rep. Zoe Logren are backing the REDUCE Spam bill (yes, that is it's name, and yes, the REDUCE does stand for something), Verizon lost it's bid to avoid having to release the name of an accused file-sharing subscriber to the RIAA, Streamcast won in court against the RIAA, Volvo filed a trademark infringement lawsuit against a small-town car museum and the MPAA vs. 321 Studios case was postponed, among other things. Some wins and some losses, which is unusual since mostly when a lot of stuff happens, it's all losses.

On Wednesday, Linus Torvalds, the man behind the Linux kernel for those who don't know, posted this thread to the Linux Kernel Mailing List, titled 'Flame Linus to a Crisp'. The gist of the email was his explanation of this quote: "I want to make it clear that DRM is perfectly ok with Linux!" Linus says that he's not playing politics with the kernel, and that he wants people to be able to do whatever they want with it, even if it's something he doesn't personally like, though he does explain why he feels that DRM (in the context of signing binaries and refusing to load unsigned ones) is a good thing. One of the biggest problems I see with DRM in this sense is that there's the potential for the operating system to totally prevent access to data or applications if the app is untrusted. I wouldn't have as much of a problem with this if it was ensured from day one that there would always be a way to get raw access to data, or to be able to run untrusted apps. And this doesn't even get into the issue of DRM in other context, like restricted data, that has limitations for accessing it.

For signing apps and such, I don't think that DRM is required, and I get the idea that Linus missed the point of just what DRM is. DRM is, to it's fullest extent, a way of managing access to protected works so that the copyright holder's rights aren't infringed by an unauthorized use of the device. There are a number of smaller parts to that, and one of the key ones is signing apps, and trusted apps, so that access to that data can be restricted to a whitelist of applications that can access that data (presumably since they would honor any and all of the usage restrictions on it). Simply signing apps, so that a person can verify that an application is really exactly what it should be, is perfectly acceptable, and strongly encouraged, in the wake of compromises of servers in which legitimate applications were replaced by trojaned versions. But this can be accomplished much more effectively, and without nearly as much controversy, by simply automating an MD5 or PGP/GPG key check before installing an application, and letting the user know if an app deviates from what it should be.

I agree with at least part of Linus' point, that signing apps is definitely a good idea, but I wouldn't go as far as to say it's almost required, especially with proposed ideas like Palladium, in which an application has to be trusted and allowed to get access to data. There is no reason to completely inhibit a person from accessing their own data or data which they have a right to access. That's why I feel there definitely needs to be a way to get around the restrictions, so that there is always a way to access the data, even if something goes wrong with the 'registry' of trusted apps and access controls (think Wndows registry corruption, but without a way to restore, and you have an idea of just how easily it could happen).

In a move towards satifying part A of Larry Lessig's spam-fighting wager (if a federal anti-spam law passes, and doesn't work, he would resign from his job), California Rep. Zoe Lofgren plans to introduce the "Restrict and Eliminate Delivery of Unsolicited Commercial E-mail Spam" (REDUCE Spam) bill into the House of Representatives. The bill would require the subject lines of e-mail advertisements to be prefixed with [ADV;], and also provides a 'bounty' system for reporting violators. The way the bounty works is, if an email is received that's an advertisement without the required prefix, then the first person to track down and report the sender would receive a percentage of the fine levied against the offender. The bill would also require valid return addresses, obeying and respecting choices to opt-out, and give the FTC power to collect fines against violators.

Personally, I don't think legislation is going to be able to do a whole lot against spam, most of which is sent by exploiting incompetent admins (usually in other countries) and trying to prevent it from being traced back in the first place. The use of open relays, frequently in Pacific countries like China and Taiwan, means that spammers will still have the means from which to send, and the SMTP protocol allows them to provide very little real information about the origin of the message. The bounty part will certainly compel technologically talented people to seek out the identities of spammers, but I'm curious about just how much claims are investigated. It's unlikely that the people who levy the fines are going to do the full research into it (it's almost a fact of government that the people who can do a job never get to do it), and so a clever person could simply provide fabricated evidence against an innocent party in order to claim the monetary reward. And even if the people investigating are talented enough to do it well, the sheer volume of complaints they would likely receive (some real, some not) would almost certainly keep them too busy to do the best job on any of the claims. While I don't like spam, and I have no respect for those who send it anonymously and without a way to opt-out, the potential abuses of a law like this against innocent people are too great, in my opinion. It seems likely that someone accused here would be labeled 'guilty until proven innocent', which is no way for a government to treat its citizens.

The RIAA won against Verizon in a case of copyright vs. privacy. The RIAA subpoenaed Verizon to reveal the name of one of its subscribers who they believed to be sharing files, as provided for in the DMCA. Verizon sought an injunction to prevent having to release the name, saying that the RIAA should have filed suit against John Doe, and then Verizon would have revealed the name as required under such a suit.

To me, cases like this really provide a look at why the DMCA is both redundant and bad. The RIAA, without the DMCA, has a perfectly accepted way to get the name of this person, subject to a judge allowing them, but they chose to take the route which obtained the same result, without the judicial review. I don't think it's all right to put the copyright holders in charge of enforcing copyright, especially in the case of large organizations against smaller ones or individuals who don't have the power to fight it. When that's the case, it doesn't really matter whether the copyright holder was right or wrong, because they just use their financial muscle to ensure compliance with whatever they want, with no regard to whether or not they actually have that right. When the RIAA decided they wanted the name of this person, they should have done exactly what Verizon says they should have done, filed suit against John Doe and then sought a judge's approval to compel Verizon to reveal the name. That way, they would have to present evidence of why they need to get the name, and if their case was without merit, or a blatant false accusation, it would have stopped there, without reaching the person at the end. And if they had a case, they would have gotten the name and then would have proceeded as normal. Giving the RIAA (or any private entity, for that matter) the power to do what would otherwise have required a judge, amounts to nothing more than allowing that entity to be vigilante, since they can accuse anyone of near anything, and not be subject to judicial review or any sort of reprimand for abuse of the power.

Though to put at least a dent in the RIAA's quest to eradicate any sort of file-sharing (beit legal or not), their case against Streamcast (makers of Grokster & Morpheus) was decided on Friday, with the victory going to Streamcast. The judge's decision likened the networks to VCRs or copy machines, which can infringe copyright but also have substantial noninfringing uses. The decision seems to be completely contrary to the Universal v. Reimardes case (Universal v. 2600), which said that 2600 Magazine couldn't link to the DVD decryption library DeCSS (though the cases were decided in different courts). It's a definite victory, and hopefully will go a long way toward reversing the modern trend toward assuming anything that can infringe copyright is only used for that role.

This seems like a good opportunity for me to explain exactly what my position is on file-sharing and copyright. A lot of people are under the impression that since I'm opposed to the DMCA and support rulings like this, that I support people downloading copyrighted material or blatantly infringing on copyrights. I think that copyright protection, and intellectual property law in general, is a very important part of new things being created. I believe that the creators of a work are entitled to their limited period of protection, and that this protection is critical to lots of areas of society. I think that if someone is downloading copies of copyrighted works that they would have no legitimate claim to (like downloading an MP3 of a song you own the CD of), then that's illegal and should be prosecuted. I don't think that people sharing files (so long as they have some legitimate claim to possessing them in the first place, like I just mentioned) are doing anything inherently illegal for the most part. If they're making an effort to encourage people to copy things (with a legit claim, blah blah blah) then they are most definitely facilitating copyright infringement, but I don't see a problem with someone ripping a CD and then sharing the digital copies for other people who own the album to download. The same goes for DVDs, and all sorts of other things.

I'm also opposed to the current length of a copyright term. The Constitution says that creators should be given a period of limited protection, because such protection is needed for progress in science and the arts. In other words, a creator's works are given protections so that the author can reap rewards from them, to create more works. And since I think it's designed to benefit the creator of a work, I don't see any reason why a copyright term should be any longer than the life of the author/creator. Once a person is dead, they can no longer benefit from sales or licensing of the work. The Constitution doesn't say that the son of a deceased creator should be able to make money off a work, it says that the creator is entitled to the protection so that they have incentive to create more. With current copyright terms, it's very possible for a third generation descendant to be in possession of the copyright of a years old work, and not do anything more than seek to make money from the work of someone they never knew. This isn't promoting science or the arts, it's promoting greed, at the expense of the public domain, the resources of which are often the basis for new scientific and artistic works.

Now that that's been said (and I will be more than happy to clarify any part of that), we have another example of IP abuse, in Volvo's filing of a WIPO complaint against the Volo Auto Museum alleging trademark infringement. The Volo Auto Museum is an antique and classic car museum in a town of around 200 residents, and Volvo is a worldwide auto manufacturer. Part of trademark infringement is that the accuser should have to show why they feel the other party is causing/cause harm to the finances or reputation of the accusing party. This should mean more than just being in a very general area (cars in this case) and having a similar name (Volvo/Volo); there should be (needs to be?) a very clear potential for confusing the two, and I highly doubt that a small town classic car museum is going to be mistaken for Volvo, or that any harm to Volvo's finances or reputation would result. And, since Volo is such a small group, they don't have the same means to be able to fight Volvo on this. I have a serious problem with companies who try and go after virtually defenseless groups or people, when groups or people more capable of fighting are guilty of the same behavior which is getting the small group in trouble (this is without regard to whether or not something is actually being done wrong).

And with this is more waiting for a case I've been watching with significant interest, the MPAA's suit against 321 Studios over their DVD-Copy product. The MPAA alleges that since the program allows a person to copy a DVD, it facilitates piracy and that 321 should be punished for selling it. 321 says the product is in no way designed for piracy or copyright infringement, and that it was designed for a DVD owner to be able to make a backup copy. The case was originally scheduled to be heard last Friday, but it was postponed.

This case seems like the embodiment of a point I made earlier, that groups like the MPAA feel that just because something can be used for piracy or copyright infringement, that it is only used for that, despite legitimate uses for the technology, like making a backup copy in case something should happen to the original (lost, scratched, etc.). It's ridiculous to think that a DVD or CD would last forever (though Jack Valenti has said that since a DVD is digital it should never need to be replaced), and equally ridiculous to require that if anything happens to the original, the only way to be able to listen to/watch it is to buy it again. From a profit standpoint, it's better for the RIAA/MPAA to make you buy everything multiple times, but very few people I know (and I assume in general, but I could be wrong) are not willing to buy the same thing several times. Especially following the actions and words of the RIAA/MPAA where their general idea is that you don't own the DVD or CD, but are instead buying a license to listen to the music or watch the movie that's on the physical media. Though if that were the case, they should have no problem replacing lost, stolen, or damaged media for not more than the cost of media, since we would already have purchased a license for the content, right?

And to finish things off, the final schedule for the remaining DMCA hearings is available. I will be at the 9:30 hearing on May 2, as I've said, and if anyone is interested in turning out in support or just to observe, there may be room for you to come along, if you let me know enough in advance.

birthdays and beyond
Posted: 2003-04-22 13:08
No comment(s)
Author: Phil Gengler
Section: Stuff

The first widely used graphical web browser, Mosaic was released exactly 10 years ago today, ushering in the era of graphical web browsers, along with the Flash, Java, etc. that are (ab)used today. It's noteworthy, and provides a good segue to my next point, that today (April 22)is my birthday.

The Copyright Office has announced a period for public comments about rules for governing SoundExchange, the RIAA division charged with collecting royalty payments from webcasters. It's something to look into writing about, once my testimony about DMCA exemptions is completed.

On that same note, I've been moved to the morning session of the May 2 hearings after some email communication with Rob Kasunic of the LOC. The only thing that's changed is the time, my argument remains the same and will most likely be more relevant to the subject-at-hand at the time.

Tomorrow at 6:30 is day 2 of Adam Kosmin's small claims case against Toshiba. For those who have no idea what this about, I recommend reading my first mention of the case, my summary of day one, or Adam's site. The case will be heard at the Queens County Courthouse, same as last time, and anyone interesting in coming out to show support is encouraged to do so.

Earlier this morning, a suspicious white powder was found at a mail distribution center in Washington (state, not DC). Preliminary testing indicated it contained plague and botulism, and everyone was whipped up into a frenzy. And then, reality. And then, more powder, this time at an airport in Florida.

The Guardian has an article about the Iraqi leadership, and how the more things change, the more they stay the same. Members of the Ba'at party, who were supporters of Saddam during his reign, still hold most of the government positions and jobs in Iraq. Even if these people had no real loyalty to Saddam, and just played along, they're going to have their previous experience to work against, making it a lot harder to change things. It will be interesting to see how easily these people can work against their experiences of years past.

On Sunday, the NY Times ran an article about a former Iraqi scientist who is verifying all the US allegations of Iraqi WMD and allegedly helping point US forces to their locations. The article, however, reads like nothing more than government propoganda. The reporter was not allowed to interview the scientist, had to wait 3 days before publishing the article, and then subjected it to military officials, who reviewed it and made some suggested edits. These changes were incorporated, and any detail the article may have had is gone now. Now it says, there's a scientist who confirms all the allegations the US made for war (but hasn't substantiated), but we can't talk to him, or even mention where or what kind of weapons he knows about. This article has been widely criticized for failing to provide any evidence to back up these claims, or even show them to possibly be credible.

And since there's more to the world than just the US and Iraq, Maoist rebels in Nepal will be holding talks with the government of Nepal. A cease fire of three months ago ended a seven-year insurgency by the Maoists, and the Nepalese government has conceded it has no choice but to talk with the rebels, who have become a powerful force within Nepal.

Record labels Universal Music and EMI are suing one of Napster's investors. Hummer Winblad Venture Partners is being sued for a presently unknown amount. The labels allege that Hummer Winblad's investment in Napster contributed to copyright infringement, and are seeking punitive damages.

Posted: 2003-04-17 12:50
No comment(s)
Author: Phil Gengler
Section: Stuff

Since I've been making mention lately of testifying before the Library of Congress for an exemption to the DMCA, and I haven't really explained exactly what it is I'm going to be supporting, or even why I'm going, I'll take this time to explain what it is I'm testifying for, and why I'm doing so.

The crux of my argument is DRM, and it's impact on users of alternative operating systems such as Linux. Increasingly, software capable of playing protected media is being made only available on the Windows operating system. This applies to the CSS encryption of DVDs, as well as protected CDs and formats such as WMA. These protections prevent access to the media on a computer, except through these proprietary players or formats, which may be bundled with the media. Under §1201(a)(1) of the DMCA , circumvention of an access control mechanism is prohibited, leaving users of non-Windows operating systems without a way to access the media which they legitimately purchased. Circumvention for this purpose does not infringe on any copyright, and as such, there is no reason for such a circumvention to be prohibited.

The most obvious case of this is with DVDs. Most DVDs that you can buy are encrypted with something called CSS (Content Scrambling System). This is a patented technology, and to use it, one must license it from the DVD CCA. Since the CSS technology controls access to the work, it is illegal under §1201(a)(1) of the DMCA to decrypt this without a license. While the DVD CCA has claimed it had licensed the technology for Linux players as far back as 2000, there are still no licensed players for Linux. Presently, the only way to watch a DVD movie under Linux is to use a library such as libdecss or libdvdnav, both of which circumvent the encryption and as such are illegal to distribute or use in the US.

Circumventing the encryption used by CSS is not necessary to make copies of the DVD, though, as it is only an encryption technology and not a copy protection measure. Making a copy of the DVD would result in a playable copy, since the encrypted data can be copied without restriction. This means that a copied DVD would still play on any licensed DVD player as though it were an original. The circumvention here only prevents the movie from being played in an unlicensed player, not from copies being made.

Another example is audio CDs that are being distributed with a data track in addition to the audio tracks. This data track contains compressed digital media files of the tracks of the CD, in the WMA (Windows Media Audio) format. This format is proprietary to Windows, and usage of a decoder would require a license from Microsoft. Since MS is reluctant or unwilling to license it's proprietary format (and therefore a Windows selling point), there will not be a WMA decoder for Linux any time soon. For Linux users, this means that they will be unable to play CDs protected in this manner on their computer, rendering the CD practically useless if their only CD player is their computer, which is not uncommon.

These uses clearly do not infringe on a copyright, yet they are granted legal protections above and beyond that of basic copyright. Since these uses are non-infringing, and the techniques required to allow them do not ease illicit access or use of the works (any more than is already the case), there's no reason that these should be subject to an overly harsh restriction on the tools needed to enable them.

Why am I going? The DMCA has a provision to allow the Library of Congress to create exemptions to the anti-circumvention provisions of the DMCA. Beginning late last year, the LOC began accepting comments supporting exemptions, followed by reply comments supporting or opposing exemptions. The next step is this one, hearings before the LOC on classes of work for which exemptions are sought. And this is where my saga begins.

If you're interested in knowing more, or more detail, let me know and I can explain it more.

In other news, Adam Kosmin's second day in NY Small Claims court against Toshiba is coming up on April 23. As is customary for first-time cases in Small Claims, the hearing was postponed from March 6 to April 23. As with the first scheduled hearing, I will be attending in support of Adam as he attempts to get his due refund from Toshiba for an unused & unwanted copy of Windows that came bundled with a refurbished laptop he purchased.

As I'm writing this, I just received the schedule for the remaining DMCA hearings:

May 1
1:30 p.m.

1. Exemption for eBooks:
Janina Sajika, American Federation of the Blind
Jonathan Band, ALA/ARL..
Robert Bolick, AAP
Alan Adler, AAP

May 2

1. DVD tethering/alternative platforms:
DVD backups/noninfringing uses
Region Coding
Michael Einhorn, PhD, Economist
Robert Moore, 321 Studios
Rubin Safir, New Yorkers for Fair Use
Bruce Turnbull, DVD CCA
Shira Perlmutter, Time Warner
Fritz Attaway, MPAA
Stevan Mitchell, IDSA

2. Damaged, obsolete, malfunction
Noninfringing uses
Joe Montoro, Spectrum Software
Brewster Kahle, Internet Archive
Shawn Hernan, CERT
Jonathan Band, ALA/ARL...
Jay Sultzberger, NYers for Fair Use
Phil Gengler
Chris Mohr, Reed Elsevier
Keith Kupferschmid, SIIA
Emery Simon, BSA
May 9
9:30 a.m.
1. Lexmark/Static Control:
Seth Greenstein, Static Control
Representative for Lexmark

2. Broadcast Flag
Todd Murphy, Pro Sherman, IABM
Susan Fox, Disney

In site news, the previous 'links' section has been renamed 'persona', and a new section added, 'linkage'. This section will feature daily links (hopefully), as well as general links, with archives and search to be added shortly (by the end of this weekend, if all goes well). If you have a link you feel is worthy of a daily link, send it to me.

Posted: 2003-04-10 13:26
No comment(s)
Author: Phil Gengler
Section: Stuff

As I mentioned yesterday, some Republicans in the Senate are seeking to have some of the temporary powers of the USA PATRIOT Act made permanent.

The powers in question here are only related to surveillence, and not the other broad powers of the act. Specifically, Title II of the act (with the exceptions of sections 203(a), 203(b), 205, 208, 210, 211, 213, 216, 219, 221, and 222) would expire in 2005. Not that much of a gain, as the exceptions cover nearly half of that single title (the whole act consists of 10 titles, but it's a small step nonetheless.

This change is slated to be added to a bill by Senators Jon Kyl (R, AZ) and Charles Schumer (D, NY) that would increase leniancy in investigations of 'lone wolf' terrorist groups. Senate Democrats may propose an amendment to that bill which would increase restrictions on obtaining secret warrants, and as a counter, Republicans have threatened to propose this as an amendment.

The Justice Department is defending the proposal, stating that is has "allowed the FBI to move faster and more flexibly to disrupt terrorists before they strike"1 and they "don't want that to expire," despite that fact that the law specifically says these provisions will 'sunset' in 2005. Of course, seeing the government disregarding it's own laws wouldn't come as a surprise to me, since the USA PATRIOT Act itself clearly violates several Constitutional requirements of law enforcement.

Librarians are beginning to show their distaste for the act, by shredding records so the FBI cannot gain access to them. Along with posting warnings about the possibilities, librarians are finally taking a stand against the act. Hopefully, this will stir up more public awareness of just what the act is, and why it's a bad thing.

The USA PATRIOT Act isn't the major law in the news lately, as the DMCA has once again reared it's ugly head. The case of Edelman v N2H2 was recently heard and decided on. N2H2 is a company that writes, sells and maintains a piece of Internet filtering software. The list of filtered sites is encrypted, and Ben Edelman wanted to be able to break the encryption to view the sites on that list. This practice violates the DMCA, as it circumvents an access control technology. The lawsuit here was brought by Mr. Edelman, seeking immunity from a lawsuit by N2H2. The case was heard on Mar. 31, and on April 7, N2H2's motion to dismiss was granted. Judge Sterns wrote that "[t]here is no plausibly protected constitutional interest that ... outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass." This decision is a disappointment, though no entirely unexpected, given that the judge was almost hostile to Edelman's side (argued by the ACLU).

In random site news, the new pictures/images section is open, though so far it only contains my photos from 2001-09-11.


may 2nd is owned
Posted: 2003-04-09 12:21
No comment(s)
Author: Phil Gengler
Section: Stuff

I just got off the phone with Rob Kasunic of the Copyright Office, and it appears that I will indeed be taking a trip to Washington, DC, for an afternoon hearing on May 2nd. It seems that in the wake of organizing this Friday's hearing, and reorganizing the other dates, those who have had their requests accepted are just being notified now.

Since no update is complete at just a single paragraph, the NY Times brings news that Republicans want to make some anti-terrorism powers permanent. Certain provisions of the USA PATRIOT Act are set to 'expire' in 2005, a move that was important to get support for the bill in the first place. It's rumored that the changes will be attached to another anti-terrorism bill due for a vote before the full Senate late this month.

Do Ashcroft's actions of late seem to parallel the McCarthyism of the early 1950s? I'm not the only one who thinks so. If I had any artistic talent, I would draw a political cartoon of this: the left half, captioned '1953', would have Sen. McCarthy holding a newspaper and shouting 'Communists!', while the right half, titled '2003' would have A.G. Ashcroft in the same setting, except he would be shouting 'Terrorists!'.

The President of MTU doesn't seem too happy about the RIAA's recent move against one of MTU's students. The basis of the response is that MTU should have been consulted in some way before this action was taken, so that the MTU administration could have dealt with the situation beforehand. Some of the disappointment expressed by MTU President Curtis Tompkins stems from the prior cooperation between MTU and the RIAA. At some point, the RIAA will have to realize that it can't just go around and piss off everyone it has dealings with, like they've been doing for the past few years.

David Rocci, a retailer of mod chips for the Xbox, has been sentanced to 5 months in prison, 5 months of home detention, 3 years probation, and a $28,500 fine. For what? For selling mod chips, which allegedly are circumvention devices under the DMCA. The government's claim was that the mod chip allowed pirated software to be played on the Xbox. Despite the fact that mod chips have perfectly legitimate uses, like playing imported games, they are frequently presented by some as having only one purpose: pirating games. Of course, the DMCA's 'criminalize everything' technique, or at least, the application of that technique in the name of the DMCA is getting ridiculous.

it's a crazy, crazy, mixed-up world
Posted: 2003-04-07 11:05
No comment(s)
Author: Phil Gengler
Section: Stuff

Nope, still nothing regarding my request to testify, I assume this means I won't be going.

On Friday, Democracy Now! did an interview with CNN's Aaron Brown. The interview starts off with Steve Rendall of Fairness and Accuracy In Reporting (FAIR) asking about the (lack of) coverage of the anti-war movement, and CNN's pro-war bias. This topic becomes a rather heated argument between Brown and Rendall, and eventually changes to the question, should we be asked questions about the war? It's Aaron Brown's position that no, we shouldn't be asked people like military generals about the legality of the war. Concluding the interview is probing about the possibility that all CNN scripts have to be approved and/or edited before they can be aired. If this is true, which I don't have a hard time believing, than it practically invalidates all of CNN's claims about being unbiased and objective about reporting the war. This subject is brought up several times throughout the interview, which can be streamed as a RealAudio stream.

PBS is running an overview of proposed changes to the FCC regulations regarding ownership of media outlets. The changes would ease the restrictions on owning multiple media sources, and has the potential to create a virtual monopoly in all telecommunications, much like already exists in the radio world as a result of FCC deregulation.

An interesting discussion over at GNN mentions a CNN poll reporting that 68% of Americans surveyed support war even if no weapons of mass destruction are ever found. As I'm sure you're all aware, I'm wary to trust CNN data, but at the same time I have a hard time they could or would make something like this up, or skew something they already had to this effect. Unless the questions were loaded to seek this sort of response, which is not something I would put past CNN to do.

Larry Lessig has a new new blog entry about the Pennsylvania censorship blacklists. The quick background is that, a PA court ruled that all ISPs serving residents of PA would be given a list of sites (ostensibly containing child pornography, the subject matter of the case) that they would have to prevent access to. The problem is that the list is kept a secret, and with the exception of a few government officials and the necessary employees of the ISP, no one has access to the list. Meaning it's significantly harder to determine when a site is being blocked without cause. The Attorney General of PA stands behind the idea, saying that allowing public access to the list would be a dissemination of child pornography, which is illegal. The fact that the list is secret, and not subject to judicial review, means that there's virtually no accountability for any inaccuracy of the list. Site owners who feel they've been blocked unfairly have to start by proving that they're being blocked, and once they get past that, they're assumed to be hosting child porn. This clearly isn't 'innocent until proven guilty', it's quite the opposite, a phenomenon that's been manifesting itself more and more in today's society.

Speaking of 'guilty until proven innocent', the NY Times has a story about the detention of Maher Hawash, a 38-year old Intel engineer. He has been held for nearly 3 weeks in solitary confinement, without being charged with anything. The government has said nothing except that he is a 'material witness' in an ongoing investigation. This case sounds quite similar to that of Jose Padilla, another American citizen who was held for months without being given access to an attorney, which is a Constitutional guarantee.

Yahoo News is running what amounts to a major correction to a an earlier story. The first story reported that US troops had found the 'smoking gun' in the form of a weapons plant containing sarin gas. As it turns out, the plant was producing pesticides, not chemical weapons. In a somewhat related story, appended to the first Yahoo story, some US troops have been ordered to discard their chemical protection suits, since it's believed they won't be needed.

The title for this update, to give credit, is paraphrased from the lyrics of the song Rattlesnake by Live.

laziness or ineptitude?
Posted: 2003-04-06 15:21
1 comment(s)
Author: Phil Gengler
Section: Stuff

Well, April 4 has come and gone, and I haven't heard anything from the LOC about testimony regarding DMCA exemptions. Hopefully, I'll receive some word from them on Monday about this.

Friday's Washington Post carried an article about Alan Greenspan's remarks about restoring balance to copyright law.

"Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation?" was one of the questions he posed in his presentation.

Since Alan Greenspan represents "the voice of God", as I've heard it put, to those in the financial and investment businesses, this should most definitely spur some thinking, and possibly some change, from these sectors.

The RIAA is suing 4 college students, 2 from RPI, 1 from Princeton, and 1 from Michigan Tech, for up to an estimated $97.8 billion dollars each for running programs which indexed public Windows shares. Not for having the files on their computer, or even knowing what kind of files were being shared through information gleaned from the programs, but for merely running a program to index open Windows shares. In this case, those that the RIAA should be going after are the ones with the open shares of music, not the ones who wrote a program to index those, and also any other shares. The lawsuit comes without any warning, as network admins for the school's did not receive any notification from the RIAA, which the admins say they would have acted on.
$97.8 billion dollars, the amount sought from the MTU student, is close to 9 times the total revenue of all the RIAA members, according to their own figures. And that's just what they're seeking from ONE of the students.

Look for a larger update on lots of things tomorrow.

furthering the cause
Posted: 2003-03-31 15:35
No comment(s)
Author: Phil Gengler
Section: Stuff

I just received confirmation of receipt of my Request To Testify, on Friday I will know whether or not I'll be taking a trip to DC.

Dear Mr. Gengler,

This message is a confirmation of timely receipt of your request to
testify. Your request will be considered and you will receive an agenda
of the hearing schedule when it is finalized.


Rob Kasunic

Rob Kasunic, Senior Attorney and Advisor
U.S. Copyright Office
PO Box 70400
Washington, DC 20024-0400
(202) 707-0229

In other news since my last update, PayPal is being charged under the USA PATRIOT Act, for allowing illegal gambling transactions, and for the fact that they don't operate under the same regulations as wire services.

Chicago mayor Richard Daley exemplified the ridiculous of some of the 'precautions' being taken to prevent terrorism, when he ordered the destruction of Meigs field, a small Chicago airstrip.

"The mayor acknowledged there were no specific security threats to Meigs, but insisted that closing the airport could someday help prevent a tragedy in which a terrorist aboard a small plane might slam into a high rise or big crowd downtown."

Reuters is running an article titled "No Sign Yet of Iraqi Weapons of Mass Destruction", which details the lack of any WMD found by anyone in Iraq. A war to disarm is quickly looking more and more like the imperialistic attacks some other nations are claiming this 'war' to be.

MSNBC fired Peter Arnett for giving an interview to Iraqi TV, in which he said that "he American-led war effort initially failed because of Iraq's resistance." He apologized for the statement, but added "I said over the weekend what we all know about this war." Now we have reporters being fired for telling the truth, and the major news outlets expect us to believe they're being honest and unbiased.

In another example of a network censoring 'unfavorable' comments, CBS is refusing to air a Gateway ad in which Gateway features several products designed to facilitate copying digital music files. The website shown,, is claimed to feature "information about legal and illegal forms of digital music recording. For instance, it tells consumers they have a right to make copies of their own CDs for personal use, but they aren't entitled to make copies to pass out to friends." This wouldn't be so bad, except is is perfectly legal to make copies solely for personal use, and Gateway is right in saying that distributing the copies is illegal. CBS, an avid proponent of a law to require anti-copying technologies, disagrees with the law, apparently.

Fred von Lohmann, attorney for the EFF, has this to say about CBS's decision: "I think it's ironic that when the industry tries to educate the consumer about copyright law, CBS can't be bothered to run the ad."

request to testify
Posted: 2003-03-26 12:57
No comment(s)
Author: Phil Gengler
Section: Stuff

Following is my Request To Testify before the Library of Congress regarding exceptions to the DMCA's prohibitions on circumvention (and also an explanation of what I mean).

As per the Notice of Public Hearings of March 20, 2003, I am requesting
the opportunity to testify before the LOC regarding exceptions to
circumvention restrictions.

NAME: Philip Gengler
ORGANIZATION: None (representing myself)
DAYTIME PHONE: (212) 948-2670
EVENING PHONE: (201) 659-9763
903 Castle Point Terrace
Hoboken, NJ 07030
3 Catawba Drive
Hamilton, NJ 08690
CLASSES OF WORKS: The playback and/or use of protected red-book audio CDs,
media files, and DVDs on non-mainstream computer operating systems and
SUMMARY: Increasingly, copyrighted works distributed on CD or DVD, or as a
digital download, require to a special player or viewer to access. In
almost all cases, this player or viewer is only made available for the
Microsoft Windows operating system, with Apple's MacOS being supported
to a lesser extent. These are not the only operating systems, however,
and alternatives such as Linux are gaining popularity. Users of these
alternative systems are without a legal way to access a work they have
obtained legally. An exemption should be added to allow these users
access to works of this class.

Thank you,
Philip Gengler

Ok, now for some explanation of what this means and why I'm doing it.
The Digital Millennium Copyright Act (DMCA), among other things, prohibits circumvention of an access control technology protecting any work. It also provides for the Library Of Congress to consider and implement any exceptions to this prohibition.

Beginning last November, the LOC allowed submission of written comments in favor of or opposed to exceptions. Following was a period of accepting reply comments, ending last month. Finally, on March 20, the LOC began accepting requests to provide testimony on the subject.

The particular class of work I wish to address is playback of copy-protected CDs, DVDs, and media files (like MP3s) on operating systems that an authorized player is not provided for (Linux being my example). I feel that an exception should be added to allow Linux users (and users of other OSs) to gain access to a work they paid for and obtained legally. Currently, gaining access requires prohibited tools, like DeCSS, which cannot legally be distributed in the US.

The hearings are being held in Washington, DC on April 11, April 15, April 30, and May 2. I will update when I have received a response (by April 4).

a call for patent reform
Posted: 2003-03-24 12:18
No comment(s)
Author: Phil Gengler
Section: Stuff

History & Background

Article I, Section 8 of the US Constitution states that "The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". With that, the US patent system was born.

When the USPTO was first created, the length of a patent term was a 14 year term. The first patent statute stated that a patent would be issued for "[an] invention or discovery sufficiently useful and important."
Over the years, the scope of patents granted by the Patent Office has increased, mostly due to decisions that affirmed "anything under the sun that is made by man" could be patented, and to allow the patenting of methods of doing business.

The Problems Of The Patent Office

The patent office has evolved from an organization that verified patent claims and followed it's mission closely - to provide protection for new, useful, and non-obvious (to someone in that field) inventions. It has turned into little more than a thinly-veiled way of making more money for the government. Patent inspectors are expected to meet quotas for approved patents; oftentimes this quota is beyond anyone's capability to even investigate the claims. It seems that the Patent Office has taken a rubber-stamp attitude towards approving patents, letting the courts decide which are valid and which are not. And since the patent office has almost no accountability, nothing is done to reprimand it for it's (in)actions.

Not Just The Patent Office

The problems with patents extend far beyond the Patent Office. While the root of all these problems may lie with the office, the abuses of it that we see are all done by those applying for the patents.
There are countless examples of companies (and even individuals, in some cases) applied for patents on anything and everything they've done, just to prevent a competitor from doing something similar. These defensive patents, as they're known, most certainly do not 'promote the progress of science'; they serve only as leverage to those seeking to dominate a market. This is expressly not the purpose or intention of patents.

Other problems lie with the things that are patented. Knowing that anyone with the money can most likely receive a patent, companies are seeking out patents on things just so they can take others to court and receive damages from patent infringement.

Another abuse of the patent system is donating patents and writing off the expense, as this NY Times article covers. Companies are applying for (and receiving patents) for the $4,000 in filing fees and the like, a company can obtain a patent, claim it's worth millions, and then donate it, writing off the value.

Patently Absurd

Some of these points can best be reinforced with some examples. So, here's a few, with some explanations of what qualifies them as abuses of the patent system.

6,368,227 - A method of swinging on a swing
This patent covers swinging by alternately pulling the chains of the swing. This is not new (it has been done many times), it may be useful (it can be fun), and it certainly fails the non-obviousness test (I know many people who have done it this way). This patent was granted about a year ago.

6,004,596 - Sealed Crustless Sandwich
This patent covers creating a peanut butter & jelly sandwich without an outer crust. This hardly needs explaining - PB&J sandwiches without crust were a part of many people's childhoods, certainly before the 1997 filing date of this patent. Useful seems to apply (though this is often the case), and again, it's obviousness is glaring. This patent was granted in 1999.

6,505,212 - System and method for website development
This patent covers the use of a source-control and versioning system as part of creating a website. The amount of prior art for this is staggering, and should have served as a clear sign this is not new or obvious (see the Slashdot discussion for examples of prior art, such as CVS [Concurrent Versions System]). This patent was granted this January.

6,430,602 - Method and system for interactively responding to instant messaging requests
This patent, granted to ActiveBuddy, covers any form of script or program that responds to any user request sent to it. Prior art for this goes back to at least 1993 (with the creation of Eggdrop bots for IRC), and no doubt goes back even further than that. This patent provoked this letter from me. The letter should address the reasons this patent should be considered an abuse. This patent was granted in Aug. 2002.

6,513,042 - Internet test-making method
This patent basically covers giving a test online. This patent brings up something I'll mention later, namely, patents granted for old inventions/ideas but applied to the Internet. This patent was granted this January.

Numerous other examples exist; too many of them to list even a small part of them here.

Patents And The Internet

Here's a question that I feel should be asked more by patent inspectors. Does applying an existing idea or invention to the Internet make the result new or unique? Through the actions of the Patent Office, it would seem the answer is yes; but logic would seem to dictate the opposite. In fact, some patents granted relating to the Internet are absolutely nothing more than someone else's work applied to the 'Net. There's no innovation, just a sense that they could 'own' something on the 'Net. Patents aren't being used to promote innovation, they're being used to create and maintain monopolies; to generate revenue.

Wrapping Up

The US Patent System has strayed from it's original mission to promote scientific progress, and has now found itself promoting monopolies, which it was never intended to do. By moving the burden of validating patents from itself to the already overworked court system, the Patent Office has made itself nothing more than a rubber stamp, facilitating corporate greed.

The patent office needs a complete restructuring. It needs to have both its limits and its procedures carefully defined, and available as public knowledge. It needs to adhere to its mission. Most of all, it needs to be accountable for its mistakes.

america's terrorism
Posted: 2003-03-20 07:22
No comment(s)
Author: Phil Gengler
Section: Stuff

Around 9:30 ET last night, the US launched several cruise missiles at a 'target of opportunity' in Bahgdad, believed to have been a possible location for Saddam Hussein and/or senior government officials. The US campaign of terrorism has now begun.

Terrorism. Not war. The dictionary defines terrorism as "The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons." I think the definition explains exactly why this attack was an act of terrorism and not one of war.

Iraq was not without a response to this provocation. Within hours of the first US attack, Iraq reportedly launched anywhere between 2 and 5 missiles towards US forces in Kuwait. That manifestation of honest reporting and journalistic integrity, CNN, is claiming the missiles were Scuds, which were supposed to have been destroyed as part of the 1991 agreement. Kuwaiti officials echoed this claim, but both US officials and the Iraqi government deny the claim, with the US theorizing instead that the missiles were the permitted al Samoud I, according to an MSNBC reports.

In a pathetic indication of what our society has become, one of the major headlines being reported is 'War to cost millions in Oscar revenues'. What does that say about a society when one of the most important things about a war is its impact on an awards show?

more irresponsible reporting from cnn
Posted: 2003-03-19 12:05
No comment(s)
Author: Phil Gengler
Section: Stuff

"Poll: Two-thirds of Americans support Bush ultimatum"

Quoted directly from that CNN report (emphasis mine): "With the nation on the brink of war, two-thirds of all Americans say they approve of President Bush's stark ultimatum to Iraqi leader Saddam Hussein and say they believe he did all he could to resolve the crisis diplomatically, according to a new CNN/USA TODAY/Gallup poll."

A poll of n people is just that; a look at the opinions of those n people. A poll is not, however, a reflection of what "all Americans" think. I wasn't polled for this, no one I know was, and so right there is isn't 'all Americans'. 2/3 of those surveyed may have supported Bush, but we don't know that it's 2/3 of 'all Americans'.

Polls, and statistics in general, can easily be manipulated to obtain whatever result you want. In this case, we don't know 2 things, first, what the question asked of these people was, and second, just what sort of demographic was targeted. It's very possible, and quite likely, that either of these factors here could show a bias toward obtaining that result.

For some reason, this (satire) seems all to appropriate given the media's coverage of the world lately.

t minus 8 hours and counting
Posted: 2003-03-19 09:00
No comment(s)
Author: Phil Gengler
Section: Stuff

As I'm sure you're no doubt aware, President Bush gave a speech the other night giving Saddam and his sons 48 hours to leave Iraq and go into exile, or else the US & UK would commence military operations. The speech itself was more of the same from Bush, consisting mainly of lies and unfounded allegations designed only to stir up support.

Some of the points I wanted to address from the speech:

Bush says: "For more than a decade, the United States and other nations have pursued patient and honorable efforts to disarm the Iraqi regime without war."
Reality: Iraq was neglected for the most part after the Gulf War, with no 'patient' or 'honorable' effort made to enforce any UN resolutions against Iraq.

Bush says: "We have passed more than a dozen resolutions in the United Nations Security Council. We have sent hundreds of weapons inspectors to oversee the disarmament of Iraq. Our good faith has not been returned."
Reality: However reluctantly, Saddam has been cooperating with every request or demand made by the inspectors.

Bush says: "Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised."
Reality: I don't know that this isn't true, but at the same time, I've seen no evidence to indicate that it is true. The only source I have heard make this claim is the Bush staff.

Bush says: "The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al Qaeda."
Reality: Prior to the Gulf War, Iraq was an ally of the US. And there has never been a connection made between al Qaeda and Iraq, though it has been attempted .

Bush says: "The danger is clear: using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country, or any other."
Reality: As with the last few points, there is no evidence to show that Saddam even has such weapons, and if he did, that he has ties to terrorist organizations that could get them from him.

Bush says: "The United States and other nations did nothing to deserve or invite this threat."
Reality: What threat? Iraq has taken no aggressive action towards the US or any of our allies, and in fact, is showing nothing but complicance with our demands for disarmament.

Bush says: "The United States of America has the sovereign authority to use force in assuring its own national security."
Reality: I agree with this part, though it being applied in the wrong way here. I have no problem with us acting against a government after we are attacked by them, or acting to stop a KNOWN threat, but we do not and should never have the 'sovereign authority' to wage war on a country because we simply don't like them, and they have done nothing to provoke any attack.

Bush says: "Under Resolutions 678 and 687 -- both still in effect -- the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction."
Reality: Neither resolution 678 nor 687 authorizes the use of force against Iraq unless Iraq acts aggressively towards Kuwait. Since it has not done so, these resolutions do not provide authorization to use force against Iraq to enforce disarmament.

Bush says: "Yet, some permanent members of the Security Council have publicly announced they will veto any resolution that compels the disarmament of Iraq."
Reality: Resolution 1440, unanimously approved by the Security Council, compels Iraq to disarm. The countries threatening veto were not doing so to stop Iraq from disarming, but to stop the use of force to effect this disarmamemt.

Bush says: "Should Saddam Hussein choose confrontation, the American people can know that every measure has been taken to avoid war, and every measure will be taken to win it."
Reality: The US has most certainly not taken every measure to avoid war. Bush, in fact, has been pushing for a war, back since when his staff said he did not need Congressional approval to wage a war with Iraq. When it comes to the Security Council, this same sentiment is reflected by choosing not to propose a new resolution authorizing force, since they knew it would be voted down.

Bush says: "As we enforce the just demands of the world, we will also honor the deepest commitments of our country."
Reality: A measure opposed by France, Germany, Russia, Canada and a whole host of other countries is now the 'just demands of the world'?

Bush's commitment to a war, no matter who supports it, it almost certain to get the US into a bad situation. Whether it be needless troop deaths in Iraq, or increasinly negative foreign opinion, our entire country will pay the price for a single man's failings.

Addition: Check out GNN's take on the speech.

x => Terrorism ∀ x ∈ { bad things }
Posted: 2003-03-17 08:13
No comment(s)
Author: Phil Gengler
Section: Stuff

Last Thursday, John Malcolm (Deputy Asst. Attorney General For The Criminal Division of the US DOJ), Joan Borsten (President of Jove Films), Rich LaMagna (Senior Manager of Worldwide Anti-Piracy Investigations at Microsoft Corporation), and Jack Valenti (President & CEO, MPAA) gave testimony to the House Subcommittee on Courts, the Internet, and Intellectual Property. The matter at hand was connections between piracy and organized crime/terrorism. In general, the focus was on large-scale, international piracy groups.

According to Mr. Malcolm, most of these groups are backed by organized crime. While not making a connection between these groups and terrorism, he did say that the DOJ would be working to prevent money from these operations to fund terrorism.

Ms. Borsten testified that intellectual property (IP) infringement is a growing problem in Russia. She makes the statement that she does not connect piracy to organized crime or terrorism, and presents her case on how IP infringement in Russia hurts the US.

Mr. LaMagna's case centered around software counterfeiting, and how it is primarily managed by organized crime syndicates.

Which brings us to the testimony of Mr. Valenti. He first lashes out at digital piracy, eventually settling on the subject of physical piracy and counterfeiting. He, too, tells of connections between piracy and organized crime, and also claims the government has made a link between piracy and terrorism. His purported 'claim' by the government is nothing more than a single article in an issue of US Customs Today, and is not backed by any other sources. He quotes the article's claim that international counterfeiting funds a majority of all terrorism, a claim which I have seen no other evidence to support. He also cites the conclusion of the article, which states: "September 11 changed the way Americans look at the world. It also changed the way American law enforcement looks at Intellectual Property crimes." This is simply wrong. In the wake of 9/11, I cannot think of a single law-enforcement agency in this country that suddenly focused on IP crimes. In fact, at the time, such crimes were likely at the farthest edge of consideration, with allaying people's fears and providing physical security paramount to all else. An aricle with a bold lie and a single unsubstantiated fact would seem to carry very little weight, though Mr. Valenti uses it like it's some divine word. His testimony ends with the statement that "Large, violent, highly organized criminal groups are getting rich from the theft of America's copyrighted products."

Can anyone please show me ANYTHING which provides evidence that such groups are violent (I have no doubt that they exist), or that they are 'getting rich' from their activities? Mr. Valenti's false claims, coupled with his invocation of the word 'terrorism', shows that he is doing little more than sensationalising the problem, calling for stricter measures that will undoubtedly provide no benefit, and very likely harm, to the consumer and their rights to use a copyrighted work.

It's no secret that the entertainment industry is striving only to increase it's own profits, no matter what the expense to the American public. The DMCA, the CTEA, and a whole host of other proposals all show that groups like the MPAA have no interest in what's legal; they want to break laws to get those who are breaking laws; but these groups lobby for legislation to legalize what they want to to. Case in point, a proposed bill headed by Rep. Howard Berman and backed by the RIAA, would have given copyright holders the right to hack the machines of suspected copyright infringers to seek out any copyrighted works on their machine.

It's my understanding that the government exists to serve the people, and to do what is in their best interest, not to cater to large corporations who throw money at them. Under the euphemism of 'campaign contributions', we all look the other way as our elected officials are bribed. And this corruption of our elected leadership leads to diminishing rights to the citizens of this country, while corporations benefit. There is absolutely no reason why any company should be legally granted the right to hack into a citizen's machine, especially without any sort of warrant or due process. It's fortunate that bill did not pass, for it would have allowed companies to become vigilanties; to take the law into their own hands, but not have to answer to anyone if they exceeded their authority. There would be little recourse for those unfairly or wrongly made a victim of such a law; the companies behind it having no accountability for their actions.

The Constitution of the US opens with this "We the People of the United States". We the People, not the corporations, not the slaves to the dollar. The entire basis of the government in this country was to have a government for the people, a government by the people. The Bill of Rights was passed to explicitly give certain freedoms to the people, with the understanding that the people were not to have only those mentioned there.

However, it seems that more and more the rights of the individual are being taken away so that the corporations and the government have more freedom and more power. Laws have been passed that completely disregard Constitutional freedoms; others have been upheld as complying with the letter of the law, if not the spirit.

This brings up an interesting question. Since the founders could not have forseen the future and what it would bring, and as such were somewhat vague with parts of the Constitution, is it better to follow the letter of the law (what's written), or the spirit of the law (the way it was intended to be)? In the case of the CTEA, it's clear that the spirit of the law was to provide a short period of limited monopoly for a work; the letter of the law, however, doesn't provide for a specific time, saying only that it need be a 'limited' time.

This truly is, as Greg Palast wrote, the best democracy money can buy.

on the balance act
Posted: 2003-03-14 10:31
No comment(s)
Author: Phil Gengler
Section: Stuff

Rep. Lofgren's BALANCE (Benefit Authors without Limiting Advancement or Net Consumer Expectations) Act seeks to make amendments to Title 17 of the US Code, which governs copyrights. There are a few points of interest about the Act, some good, some bad, and I will elaborate on these as I come to them.

Section 2 establishes what copyright is and why we need it, and that the DMCA was to secure copyrights in a digital world. It is pointed out, however, that the DMCA has been used in ways not intended, namely that it prevents lawful use of legitimately purchased material. Cited is a report to the House's Judiciary Committee (along with the DMCA), stating that "an individual [should] not be able to circumvent in order to gain unauthorized access to a work, but [should] be able to do so in order to make fair use of a work which he or she has acquired lawfully." This section closes by declaring that consumers should not all be treated as though they were criminals.

Section 3 begins the amendments to Title 17. Situations of legitimate use are laid out, so that they are protected by the law. Any nonnegotiable license on copyrighted material that went against the aforementioned situations are declared to be unenforceable (though it is unclear whether this means the whole license, or just the specific terms in conflict with the protected uses). The term 'digital work' is defined, and an important exception is made. Simply, the definition is that a digital work is any copyrightable work in a non-analog form, with the exception of computer programs. This exception is important, as it leaves a very large loophole in the Act, which I'll discuss later.

Section 4 covers the doctrine of First Sale with regard to digital material. First Sale means that if you bought something, you are able to sell it (without keeping any copies or parts) without requiring permission from the original owner/copyright holder.

Section 5 allows for circumvention of protection mechanisms, provided certain conditions are met. If a copyright holder releases a work with a protection mechanism, and does not 'make available' a means to enabling non-infringing use of the work (or obtaining such a means is an additional cost or burden on the consumer), then circumvention of that mechanism is explicitly allowed for the purposes of non-infringing uses. The meaning of 'make available' is missing here, and this provides another loophole. The section also allows import, distribution, etc. of tools which circumvent protection to enable non-infringing uses.



As I mentioned, there are 2 major loopholes in the Act, that could be used and render the Act's protections useless.

Firstly, the exception of a 'computer program' as a digital work covered by this act is very significant. It is possible that any copyrighted content will no longer be distributed as a file, and viewed with a separate application, but instead distributed only as an application containing the content and the means to view it. Such a bundle would not be covered by any of the provisions of this Act.

Secondly, the lack of a definition for 'mak[ing] available' means to non-infringing uses could also be used to work around the Act. The additional qualifiers that such a means must not put any additional cost or burden on the consumer somewhat addresses this, but the terms 'available' and 'burden' are vague. What constitutes 'made available', and what exactly constitutes a 'burden'? Publishing tools for a single platform (possibly a very obscure one) could be considered 'available', and if obtaining and installing the tool is simple, wouldn't constitute a burden, but the tool itself would still have a very sharply limited utility.

This Act is a good first step towards addressing the myriad of problems created by the DMCA, but it is not a solution. With the loopholes it has, it is of very limited benefit to the general public, and is no significant threat to copyright holders.