Phil Gengler
2003-04-17 12:50:31

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.