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On Wednesday, Representatives John Conyers (D, MI) and Howard Berman (D, CA) introduced new legislation, H.R. 2752, the "Author, Consumer, and Computer Owner Protection and Security (ACCOPS) Act of 2003".

This bill has nothing to do with protecting or securing computer owners or consumers. The bill is little more than a thinly veiled attempt by the RIAA and MPAA to make file-sharing a felony offense. After first required the Attorney General to include statistics on copyright infringement when issuing crime statistics, the bill makes one file equivalent to ten files. Sharing of a single unauthorized copyrighted work "shall be considered to be the distribution...of at least 10 copies of that work with a retail value of more than $2,500." $2,500 is the minimum amount for a crime to be considered a felony instead of a misdemeanor.

Later, the bill would criminalize the practice of using a video camera to capture a movie being shown in a movie theater. Somewhere in the middle, the bill would make stealthily distributing bundled spyware an offense punishable by a fine or max. 6 month imprisonment. Right after that, it would be made a crime to provide false or fraudulent information in the registration of a domain name. This 'offense' would be punishable by a fine or max. 5 year imprisonment.

First, let's have a look at the part of the bill that would equate one file with ten files, and make a $15 CD or DVD worth $2,500 when shared on the Internet. If this reminds you of the RIAA CD burner math of last December (156 CD burners were considered to be 421 burners, because 'some of them were fast'), you're not alone. One file is one file, and ten files is ten files. To assume that one file is ten files is absolutely ridiculous. Just because the RIAA/MPAA is unable to obtain an accurate count of how many times a shared file has been downloaded is no reason to automatically (and be legally forced to) consider a single instance as 10 instances.

Imagine if this idea were applied to other areas of the law, like murder laws, for example. A person who is guilty of a single murder would be presumed guilty of ten murders, and legally have no recourse to prove that actual damages (the real # of murders committed) was not 10. No one would think that any law doing this would be fair, or constitutional, so is this sort of idea even being considered for copyright infringement? I am embarking on a quest to seek answers to this question, and will keep you all updated on what I may find.

But the fuzzy math is only one part of the disturbing bill. If this bill were to become law, sharing a single file, which was downloaded once, would be counted as a loss of $2,500 for the copyright holder. This could a single song of an album (which costs at most $100, for a large compilation; prices average around $15-$20 at retail), a single movie (which can be rented for $3-$7, seen in a theater for $5-$15, or purchased on VHS or DVD for $10-$25 in most cases), yet it would be counted as being worth $2,500 at retail. No song, album, or movie sells at retail for anywhere near $2,500, with the possible exception of extremely rare films or autographed copies (which is meaningless when considered in an online context). Where did this number come from? Another question I will be seeking an answer to.

Worth noting is the comparison (or rather, the contrast) between the laws and penalties for shoplifting, and those for copyright infringement. Shoplifting, in which someone is deprived of a physical product that they can no longer use (in this case, sell), is a misdemeanor, and penalties are in good proportion to the amount of property stolen. Theft of a $15 CD would not be punished by a > $2,500 fine. Contrast this with copyright infringement (assuming this proposed bill were law). Any person found sharing even one single file could be charged with a felony, since 1/10th of that $15 CD (.1 * 15 = 1.5, or an expected $1.50) is apparently worth (at retail) $2,500 (nearly 20 times the retail cost of the entire CD). And since this one file is somehow actually 10 files, the case proceeds over a sum of $25,000 (nearly 200 times the retail cost of the CD).

While stiff penalties are likely a deterrent to committing a crime (in many cases), insane penalties are just that: insane. To treat copyright infringement (in which nothing is physically lost or stolen, and the original owner can still sell/distribute the work) nearly 200 times as harshly as physical theft (where a person is actually deprived of property, and can no longer use/sell it) is just preposterous.

The other provisions of this bill have their own disturbing implications, but much of it is beyond the scope of this site, or my desire to look into further. I urge everyone to contact the members of the House Subcommittee on Courts, the Internet, and Intellectual Property, which is the subcommittee this bill will first have to clear, as well as their own representative, and urge them to put a stop to this insanity before it's given any more consideration.

Firstly, sincere apologies for the unusually long time since my last post. My excuse for this one is that I took last week as a vacation week, which I spent at home, and accomplished absolutely nothing during. As a consequence, it's going to be a little light, since most of what's happened has already happened and been discussed in a large number of other places.

The first thing that jumps to mind is a new paper from Rachna Dhamija and Fredrik Wallenberg at Berkeley, entitled A Framework for Evaluating Digital Rights Management Proposals, in which they discuss various DRM systems and compulsory licensing, their strengths, weaknesses, impact on users and privacy, and feasibility. Having only skimmed the paper myself as of this writing, I can't really say anything substantial about it, but it looks like it covers many facets of current and proposed DRM systems. The accompanying Slashdot discussion has some commentary on it, for those who can find the few worthwhile posts in the mess of a Slashdot story.

Way back on the 7th, the 9th Circuit Court of Appeals issued it's decision in the case of Kelly vs. Arriba. The case was brought about by photographer Leslie Kelly against Arriba Soft (who runs the ditto.com search engine) because ditto.com, which has an images search, was displaying thumbnail images of full-size photographs from Kelly's site. The decision upheld part of an earlier ruling that the creation and display of thumbnails is fair use under the law, and abandoned part of the prior ruling which related to linking to the full-size images.

It's certainly refreshing to see that the courts still consider fair use, especially at a time when major IP owners are seeking to control and constrict a user's fair use rights at every possible turn. Back on the 4th, InfoWorld covered the Supreme Court's refusal to hear arguments in a reverse engineering case. This case, Bowers v. Baystate Technologies, was brought about by programmer Harold Bowers, who wrote a CAD program, with a EULA prohibiting reverse engineering of the software. Baystate Technologies allegedly borrowed interface elements from Bowers' program, and was sued for reverse engineering in violation of the license. The Supreme Court's decision not to hear the case means the appeal's court decision, that Baystate was in violation of the license in it's reverse engineering, stands.

The decision in this case has far-reaching consequences for all sorts of works, not just computer software. Firstly, it allows an implicit contract to be binding, and allow a user to 'click away' certain legal rights. This is predicted to pave the way for more restrictive license agreements in the future, and a precedent of upholding these 'contracts' (I use the term loosely, as whether a EULA carries the full weight of a contract is a matter of much debate). What I haven't seen mentioned in relation to this case is it's potential for the entertainment industry to distribute all their works with licenses prohibiting reverse engineering. Some of those in the entertainment industry have hinted that including similar agreements with music and movies is a possibility, and there are those who already feel that purchasing a CD or a DVD is merely purchasing some license to that medium, with a set of restrictions above and beyond those current codified.

In the weeks since the FCC's vote to lessen ownership limits on television and newspapers, the fight has not ended. The Democractic FCC commissioners, Michael Copps and Jonathan Adelstein, have sought a vote that would provide a temporary stay from the new rules taking effect. Adelstein is claiming to have found a 'blunder' in the new rules, which could alter the way public television stations are counted in smaller communities, allowing for more consolidation in those areas. This comes even as the House Appropriations Committee approved a measure (attached to a new spending bill) that would prevent most of the changes from taking effect. The House measure would affect the change in television ownership rules, but wouldn't change the new rule on ownership of a television station and a newspaper in the same area.

Over at C|Net, Declan McCullagh is reporting on the pending trade agreement between the US and Chile. This agreement contains provisions very similar to the DMCA, and would force Chile to abide by these restrictions on the use of copyright works. President Bush is pushing for Congress to approve the deal, which contains far more than just the DMCA-like provisions. Nevertheless, seeing the DMCA being effectively forced on other nations (as it was with Singapore, through a free-trade agreement made in May of this year) in disheartening, to say the least.

Trade agreements between the US and other countries aren't the only way that DMCA-like laws are coming into other nations. The European Union Copyright Directive is quite similar to the DMCA, except that some of the restrictions it creates are even worse than those of the DMCA (which is quite hard to accomplish, I would think). The EUCD, however, isn't binding law unless adopted by a certain percentage of member countries; unfortunately, this is starting to happen. Germany is the latest one to follow this, as the upper house of it's Parliament has implicitly consented to the law, already approved by the lower house. Germany now joins Austria, Denmark, Greece and Italy as the five European nations to have adopted law based off of the EUCD.

Moving along, access to the Internet may remain tax-free, if a measure approved by the House Judiciary Committee passes both houses of Congress. The measure would extend a 1998 moratorium on Internet access taxes which is set to expire on the first of November this year.

Having almost missed the boat here, presidential candidate and former Vermont governor Howard Dean is guest-blogging this week at Larry Lessig's blog. His postings have sparked a large number of comments on the blog, the more popular of which Dean recently took the time to answer. With discussions ranging from Dean's position on the Patriot Act ("I have real problems authorizing the FBI to obtain library and bookstore and video store records simply by claiming the information is 'sought for' an investigation against international terrorism. It's also clearly unconstitutional to detain individuals and deny them access to a lawyer.") to his position on the DMCA and copyright law (he doesn't have one at present, he's working one), Dean has covered some of the issues that matter to the people reading Lessig's blog. One of Dean's earlier postings laid out his position on the FCC deregulation, and how he disapproves of their decision. This position generated a lot of thanks and appreciation from posters, many of whom believe (as I do) that allowing a few large corporations control of the media is not the way to go.

As is quite common with large gaps in updates, much of what has transpired since my last update is either lost from memory or covered to death in other places. Hopefully (but I'm not making any promises, since I never seem to be able to live up to them) updates should be more frequent, and more specialized, without me degenerating into an old link propagator. In the space between updates, though, I still try and keep the 'daily links' section stocked with content, so you'll at least have something to look at. I leave you now with a Kuro5hin story which raises doubts as to the copyright status of the song 'Happy Birthday'. I'm hoping the link is good, as the K5 server is out of commission at the moment.

It's been a rather depressing week, in terms of some of the losses that have come up. Decisions came up in the Aimster/Madster case, and after several months of waiting, Adam Kosmin's small-claims case against Toshiba was finally heard and decided.

On Monday evening, I attended the hearing of Adam Kosmin's case against Toshiba. I've talked about the case before, but the quick summary goes something like this. Adam purchased a laptop from Toshiba that came with both Windows XP Pro and Windows 2000 Pro preinstalled. Having no intention of ever using these operating systems, and with the knowledge that the Microsoft Windows EULA contained a provision governing obtaining a refund for an unused, uncopied operating system, attempted to have the cost of the operating systems refunded by Toshiba. He was told they would not do this, and then filed in small claims court, seeking the cost of the operating systems, interest since August 2002, and court costs. After being pushed back 4 times, the case was heard before Judge David Elliot. Adam was representing himself, against a lawyer from Toshiba. Adam did a very good job of explaining his side, and had a serious chance of victory, until the judge ruled that the copy of the Microsoft EULA Adam sought to enter into evidence was hearsay and therefore inadmissible.

The final outcome of the case was that it was dismissed without prejudice. This means that Adam is still free to pursue the case on the EULA grounds, something he has not yet decided if he will do.

Also on Monday, the 7th Circuit Court of Appeals delivered it's opinion in the Madster case. The court ruled that Madster was liable for the content shared via it's network, despite the fact that the actual content was obscured. Calling this "willful blindness", the court upheld the ruling of a lower court, and Madster will remain closed for the foreseeable future. One benefit of the ruling was that the court did approve the use of Madster's analogy between it's situation and the ruling in the Betamax case, which means that if a device or network has substantial non-infringing uses, this takes precedence over any possible infringing uses of the device.

Also in Monday news (busy day, it seems), the EU parliament has chosen to put off a vote on controversial new software patent legislation until September. Supporters of the legislation, which is mainly large companies, had pushed for a rushed vote on the legislation, and almost received it.

The proposed legislation would give members of the EU a patent system to the broken US system. Software patents are a particularly controversial area of patent law, with some likening software patents to "allowing a monopoly on the ideas in novels." I certainly hope that when the time comes to vote on this, the EU parliament has the sense to vote for what's best, instead of what benefits large companies the most.

In some more good news, a pro-P2P lobby is emerging in both the US and Europe. Hopefully, these groups will provide sensibility and logic to when the RIAA and MPAA cry foul over P2P, without actually showing any way in which it harms them. This is something that many (including myself) have long felt was needed, and to see it finally happening makes the Internet future look a little brighter.

Speaking of the RIAA, it may soon move from 5 members to 4. Not because one's dropping out of the organization, but because AOL Time Warner and Bertelsmann are in talks of merging the Warner Music and BMG Music labels. If this merger should take place, it's quite conceivable that other RIAA members might also consider mergers. While it's apparent that the groups of the RIAA are acting in unison on most things, moving closer towards a single company dominating the music industry is not an appealing idea. I urge everyone to support independent music instead of the labels composing the RIAA.

It's been more than 2 months since I last made any mention of Iraq, and closer to 3 since I've had any substantial writing on the subject. I definitely feel the issue needs to be mentioned here again, especially with the way that there's been so much of it in the news lately.

One of Bush's primary motives for starting a pre-emptive war against Iraq was the 'clear' threat that Iraq had weapons of mass destruction, had the capability to launch an attack in a short amount of time, and was planning to do so. Since the end of major combat operations in Iraq, US military forces have been scouring Iraq looking for any signs of WMD, or even of programs to build these weapons. In the 2 months since Bush declared an end to "major combat operations" in Iraq, not a single piece of evidence has been produced that would give any credibility to the idea that Iraq was a "dire threat." The closest thing that has been found so far has been plans for centrifuges found buried in the garden of a former Iraqi weapons scientist. These plans have been buried since the end of the first Gulf War, and this scientist was never asked to dig up these plans for any purpose, even during periods when there were no UN weapons inspectors in Iraq. The age of the plans, and the fact that they were never called upon, really limits the potential threat of these.

One of the benefits of being a superpower, it seems, is the ability to extort other countries to grant yours immunity from prosecutions in an international war crimes court. This is exactly what the US is doing by threatening to (and carrying through on) withholding military aid from countries that do not sign immunity deals with the US. What possible reason could there be for seeking such immunity, unless you were planning to take part in some of the acts that would be prosecuted in the court? The hypocrisy of the US is too much for words, with the government seeking immunity from war crimes prosecutions on one hand, and on the other threatening maximum justice for others who commit war crimes.

The Feb. 15 anti-war rally in NYC is back in the news, with a class-action lawsuit being filed on behalf of everyone involved in the rally. The lawsuit alleges that the NYPD created a "hostile climate" through their methods of blockading streets and restraining protestors. I agree, as this was certianly the case, but I'm not sure that a lawsuit is really necessary. I'll have to watch it closely, and when I know more about it, I'll form more of an opinion.

It's been a busy week and a half since my last update, so this will be a long one.

The most obvious thing to look at from the week is Senator Orrin Hatch's remarks about curbing illegal downloads. During a hearing about curbing illegal file downloading, Sen. Hatch said he would be interested in exempting copyright holders from anti-hacking laws, so that they could remotely destroy the computers of suspected file-sharers. He said that it "may be the only way you can teach someone about copyrights."

The Senator later clarified his position, stating that he did not favor extreme measures, unless no moderate remedies can be found, and that he feels the industry is not doing enough to find working ways to stop people from illegally downloading files.

Senator Hatch serves as chairman of the Senate Judiciary Committee, and as such, can have a significant impact on legislation. It will be important to keep an eye on Sen. Hatch in the coming months, as his comments were not made in jest. To allow anyone to give copyright holders the power and authority to remotely destroy the computers of suspected file-sharers simply cannot be allowed. Recent history is showing us that groups like the RIAA are nowhere near 100% accurate in their ability to determine whether a person is illegally sharing copyrighted material. To allow them to independently determine a sharer is infringing, and then destroy their computer based on information no one outside the RIAA sees, without any need to show any proof, or obtain any authorization to do so, would be the worst thing that Congress could do.

On Monday, the US Supreme Court delivered it's decision (or rather, decisions) in the case of United States vs. American Library Association. The ALA was opposing mandatory filtering software on Internet-connected computers in public libraries, as stipulated by CIPA (the Children's Online Protection Act). In a 6-3 decision, the Supreme Court overturned the lower court's decision and said that mandated filters were in line with the Constitution. Justice Rehnquist wrote the plurality opinion, with Justices Breyer and Kennedy each writing concurring opinions, and Justices Stevens and Souter (with Justice Ginsburg) writing dissenting opinions.

CIPA, among other provisions, required that public libraries install filtering software on Internet-connected computers. Most currently available filtering software keeps it's databases secret, with some even claiming them as copyrighted material. This makes it obvious that these companies aren't going to easily reveal the contents of their databases, and the only way to find out if a site is blocked would be to try and get to that site from a filtered computer. This means people using these computers are restricted in the type of information they can access. It's quite likely that pornographic sites aren't the only ones being blocked by these filters. Sites having content related to sex may be blocked, though they may have no pornographic content whatsoever. There are some people who even say that sites having certain political views may be blocked, and I don't doubt that this is sometimes the case.

Today, Congresswoman Zoe Lofgren and Congressman John Doolittle introduced the Public Domain Enhancement Act. This act would require a small payment to keep a work under copyright. As written, a $1 payment would be required after 50 years of copyright protection, and then every 10 years following that up until the end of the copyright term. Works for which the fee is not paid would be considered 'abandoned' and become part of the public domain.

As before, I still don't think this law is going to work out as intended. Sure, it's wonderful to see that there's such an interest in doing something about reforming excessive copyright terms, but I don't think this law is going to accomplish that. My biggest concern is still that should this pass and become law, in 17 years, when Disney is lobbying for another term extension, they're going to point to this law as evidence that there is already some recourse for abandoned works, and that works remaining 'commercially viable' should receive the benefit of longer protection. This would defeat the entire purpose of the law, and still flies right in the fact of "promot[ing] the progress of ... the useful arts" because it's not driving progress at all. To settle for something like this, while it would be a small victory, could be the undoing of the larger fight, and I would hate to see all the effort poured in to this cause lost because we settled for something lesser.

Last Thursday, Representatives Lamar Smith and Howard Berman introduced the "Piracy Education and Deterrence Act". This act would charge the FBI with developing deterrents to peer-to-peer networks, and the Justice Department to develop programs to educate the public about copyright, and why copyright violation is bad. The bill also claims that P2P programs pose security and privacy threats to their users. To me, this just seems overly redundant; things that are illegal remain illegal, and things that are legal remain legal. All that really changes is that the government has to spend money on an education campaign. Since it's the RIAA and the MPAA who are likely behind this bill, I personally feel they should be footing the bill for getting the word out on copyright violation, and not waste federal funding on something like this.

Also in the news recently is the RIAA's new plan to go after "substantial" file sharers. I'll no doubt take a lot of flak for this (and I appreciate hearing any comments you have on this), but I think this is what the RIAA needs to be doing. I fully agree that peer-to-peer networks have plenty of non-infringing uses, and shouldn't be shut down because it's being used by some for copyright infringement. But, and let's face it, there are a large number of people downloading and sharing works that are under copyright, and that they do not have permission to share. At it's very core, that is what copyright is, a creator's (or copyright holder's, as the case may be) right to control distribution of their copyrighted works. If the RIAA can show, beyond the shadow of a doubt, that the people they accuse are guilty, and they knew this full well before pressing a lawsuit, then I think they're only doing what they should be, protecting their property. This is simple copyright infringement, not a DMCA violation, or most likely involving works affected by longer copyright terms. The people sharing these files are distributing them without the permission of the copyright holder, and that is exactly what copyright is (or rather, was originally designed) to protect against.

No doubt these tactics will have a large backlash though, as a lot of the people sharing these files are just average 'Net users. Jay Moiron made an insightful comparison between the tactics of the RIAA/MPAA and a scene from the movie Fight Club. The scene being referenced is the banquet scene, when the police commissioner is abducted by members of Project Mayhem. While holding the commissioner down, Tyler says "The people you are after are the people you depend on. We cook your meals. We haul your trash. We connect your calls. We drive your ambulances. We guard you while you sleep. Do not fuck with us." This largely parallels the underground warez scene, movie pirates, file sharers, etc. The people sharing these files, and the people downloading these files, are people from all walks of life. These people have jobs from all over the spectrum, probably ranging from government jobs down to fast food employees. These people are the ones the RIAA/MPAA are going after. More importantly though, these are the people they depend on for their continued survival. All kinds of people buy music, and watch movies, and many of these people also download music or pirate movies. To estrange these people, to push so hard that they have most of their customer base angry at them, is going to bring about the downfall of the RIAA.

Senator Hollings, along with saying that he's interested in technologies to destroy file-sharer's computers, also made the point that most people who download files either aren't aware of, or don't care about, copyright law. Nearly all of the people I know have at one point or another, downloading a song or a movie from the Internet, and many still do. But downloading songs and movies from the Internet has become so commonplace among people today that few people take a moment to consider the legality or morality of what they're doing. People listen to the radio, hear a song they like, and their first thought is to download it when they get a chance. For those who do think about the legality/morality, many don't care, either because they thing what they're doing is a form of protest, or they just don't care. Whatever the reason, copyright infringement is much easier with file sharing being as ubiquitous as it is, and infringement is probably more prevalent now than it's ever been. Whether it's affecting profits is another matter entirely (I doubt it is, at least, not nearly as much as is claimed), but all types of people are doing it. At it's current rate, it is going to matter whether it's right or wrong; people will end up seeing downloading as a 'right' and get upset when someone tries to take that away from them.

As a closing statement, sorry about the long wait between updates, I should be updating more frequently from now on.

Changing Terms

When the Founders first set the length of a copyright term, it was a period of 7 years from the date of the work's creation, with the chance to renew it for an additional 7 years at the end of the first term. The longest a work would be under copyright in this system was 14 years. In today's system, the shortest a copyright term will be is 70 years, which assumes that the creator of the work dies the day that the work is created. For anonymous works, the term is 95 years from the date of publication, or 120 from the date of creation, whichever is shorter.¹

So on average, a copyright term today is about 95 years from the date that a work was created. This is more than the average human lifespan, with only an estimated 403,000 out of nearly 273,000,000 people in the US² being over the age of 95. This is only .15% of the population. With numbers like these, it's highly unlikely that a person born today will live to see a work created today enter into the public domain. For those of us already alive, it's entirely possible that two generations may pass before a new work enters the public domain.

But is this the way things should be? It certainly doesn't seem to fit with the original intent of copyright in the US, which was "[t]o 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."³ This language, with a maximum initial copyright term of 14 years, seems proof that copyright was created to be a very limited protection that should entice people to create and release material.

I say "create" because copyright is, and always has been, an artificial creation. Physical property has always been a clear-cut thing, with people being assured of protection against theft or destruction of physical items they own. Intellectual property, however, is entirely different and should not be looked at the same way as tangible property. Once often cited difference between the two is that if a tangible item is stolen from someone, then they no longer have that item and are unable to use or enjoy it, while if an idea is "taken" then its creator still has the idea and their ability to use it isn't changed at all. That ideas do not diminish with distribution is the single greatest thing separating the two types of property. Among others is that ideas can be independently reached by two or more people or groups, through entirely different means.

This isn't to say that copyright (and intellectual property, in general) shouldn't have any legal protections, I fully agree with the intent of the Founders when they chose to protect IP to give an incentive to keep creating. The problem is the evolution that copyright has taken, with the form that it exists in today.

On of the largest changes to copyright law took place in 1976, when Congress completely changed copyright law. No longer were works required to display a copyright notice to be under the protection of copyright. Anonymous works were given different protections than works with a known author. Most importantly, the term of copyright law was changed dramatically. Prior to the 1976 act, the length of a copyright term was 28 years, with the option to renew for an additional 28 years, yielding a maximum term of 56 years. After the change in the 1976 act, works before 1978 were protected by an automatic 47 year renewal (if they hadn't yet renewed) at the end of their term and new works were protected for the life of their creator plus an additional 50 years.

These changes were mostly made to bring US copyright law into line with that of other nations, as decided by the Berne Convention. And in that regard, it did, and from that point on the terms of US copyright and that of European nations was much the same, up until the passage of the 1998 extension act, which was claimed to "harmonize" US copyright with the rest of the world, but in reality made our term longer than that of most other countries.

The length of a copyright term is not the only thing that has changed about copyright law since it's inception. The protections that copyright provides have changed significantly, mostly brought about by the 1998 Digital Millennium Copyright Act (DMCA). To most people involved with computers or digital media in any way, the DMCA is something of which they are very much aware.

Massive Changes - The DMCA

The DMCA was ostensibly passed to ensure copyright protection to works in digital format, since it is much easier to disseminate a digital work than a physical one, with no loss to the quality of the original. This in and of itself is not a bad thing to do; however, the DMCA takes this idea and gives copyright holders an unprecedented amount of control over the use of their created works.

One of the more disturbing sections of the DMCA prohibits distributing information that could be used to defeat digital copy protection. The act of copying itself is already covered, and on top of that, the DMCA makes it illegal for anyone to describe how to get around any protection on that work. This imposes prior restraint on security researchers who wish to make available a bulletin about some protection mechanism, for example.

Let's take a hypothetical example to illustrate the point. Suppose that a CD is distributed with a special player bundled, so that to listen to the music on a computer, you have to use this player, because the songs are encrypted. If you buy the CD, and look at the encryption, and you find it to be ROT13 (one of the simplest encryption algorithms in existence), then if you published that fact, you would be open to lawsuits under the DMCA for allowing others to circumvent that encryption.

At no other point in history has a copyright holder that the ability to dictate in what way a work may be used. Any such restrictions were always contractual, and never through copyright law. With the DMCA, however, the copyright holder can practically dictate the time, place, and circumstances under which a work may be used. Should someone attempt to defeat the access control (no matter how simplistic it may be), then they are liable to being sued for violating section 1201(a)(1) of the copyright code.

To put this into a slightly exaggerated context, let's show another hypothetical case. Suppose that a publisher releases a book that has a lock, preventing you from reading it, unless you use the key attached to a certain kind of chair. In that case, you are bound to that particular chair for reading the book, and if you picked the lock to read the book anywhere, or told anyone how to pick the lock, then you would have violated the DMCA. This example is a direct analog to a situation which already exists in the computer world.

Some CDs are now coming with a special data-only track that is only readable on computers. This means that a normal audio CD player should play the CD normally, but a computer cannot. This data track contains digital versions of the tracks on the CD in Microsoft's proprietary Windows Media format, which can only be played in Windows Media Player, only available on the Windows operating system. This means that the files cannot be played on a Mac or a machine with Linux, for example; and to convert the files to a open format would be a violation of the DMCA, since the proprietary encoding constitutes an access control mechanism.

Another thing the DMCA allows copyright holders to do is 'order' a hosting provider or ISP to shut down an account accused of infringing on their copyrights. This is done with absolutely no judicial review of any kind, and can be an automated process. This means that at no point does a human ever see what files (if any) are being illegally distributed though the site in question, and recently has generated quite a few false positives. The DMCA attempts to discourage broadly sending takedown notices, by providing penalties if notices are sent that are known to be false or misleading. This is very shallow, and doesn't cover the situation where the notices are automatically sent (since nothing was done 'knowingly'). It probably doesn't even cover the case of an actual person sending out notices to every website starting with the letter 'n', since that person wouldn't know that a site wasn't infringing.

The lack of any burden of proof on the part of the copyright holder means that they can request any site be taken down, without the need to explain why (beyond saying "they're infringing"). To prevent themselves from being open to liability, a hosting provider or ISP who receives such a request will likely take the site down ASAP, and then notify the site's owner that their site is down. The potential for abuse here is staggering, and it's quite possible that this section of the DMCA could be used to create some sort of censorship (by sending a takedown request alleging copyright infringement).

There is absolutely no reason why a copyright holder who suspects a site of copyright infringement shouldn't have to get an injunction from a judge to shut down that site. This introduces an (ideally) impartial third party who needs to assess the merits of the copyright holder's claim before allowing a site to be shutdown. If the site in question is found to be infringing on copyrights, then by the order of the judge, the site can be shut down and the owner sued under regular copyright law. Removing this aspect means that the copyright holder is judge, jury, and executioner, and there doesn't even need to be a human who knows when a notice is sent.

One of the claims supporting the DMCA was that digital works are different from traditional works, and should have additional protections since they can be shared or distributed much more easily. It may be true that it is easier to infringe copyright with a digital work than a traditional physical work, but not to the extent that a whole new set of ambiguous and revolutionary laws need to be passed to ensure that a work remains protected. It's not as though an infringement of copyright with a digital work isn't covered under traditional copyright law, because any traditional copyright law applies to all works, whether they're digital or not.

The aim of the DMCA seems to be preventing infringement from taking place in the first place, instead of waiting for an infringement to take place. This is the wrong attitude to take, and flies in the face of copyright since it's inception. You could make a photocopy of an entire book, but if you tried to print your own and sell them, you would be infringing on the copyright. Digital rights management (DRM) is the digital equivalent of the copier not letting you make copies of the work. The DMCA makes it illegal for you to make copies of it anyway.

In no other area of law is this the case; the idea is that the punishment for the offense discourages the commission of the crime. I can go around and talk about the best way to kill someone, and this itself is not illegal. I can purchase a knife, which could potentially be used to kill someone, and this itself is also not illegal. As soon as I use that knowledge and that knife to kill someone, I haven't done anything illegal. The same logic applies to nearly every law on the books, with the exception of copyright. If I talk about the best way to break the CSS encryption on a DVD, I've violated the DMCA. If I made the code for DeCSS available, so that a Linux user can play a CSS-encrypted movie, I've violated the DMCA. In neither case did I infringe on anyone's copyright, yet in both cases I've broken the law.

Another of the weak points of the DMCA is that it tries (on the surface) to allow easing of it's restrictions. The hearings and Library of Congress rulemakings on exemptions from §1201(a)(1)(A) are one way in which the DMCA appears to allow easy changes so that legitimate uses of works are allowed. Looking harder, though, we see that this just superficial, and that there is no easy way to prevent fair uses from being covered, or from legitimate uses from being stifled. Even with an exemption from §1201(a)(1)(A) (which covers circumventing an access control to a protected work), the prohibition on manufacture or distribution of tools facilitating this (§1201(a)(2)) still applies, and so to circumvent an access control, a person would have to develop a tool entirely from scratch, entirely on their own. To make this tool available to anyone else, or to use a tool developed by someone else, is illegal under this section.

More Than Just Copying

Another thing that has changed a lot with copyright over the years is it's scope. Originally, copyright was written to allow creators to have control over who could make and distribute copies of their work. This definition has been expanded several times over the years, to the point where copyright law now governs how a work can be used.

The original copyright statute covered only reproduction and distribution of copies. Restrictions on things like public performance are all additions to the law over the years. But at no point up until the DMCA were there any restrictions on how a person could use a legitimate copy of a work.

The most obvious reason for these shifts toward giving rights from the public to the copyright holders is that the general public doesn't know what's happening. Most people I know have no idea just what sorts of things are covered in the DMCA. The techno-savvy people I know are generally aware that the DMCA is a bad thing, but don't know why; most others have no idea that the DMCA even exists, let alone it's scope or the things it restricts. And a large part of this is the fact that copyright law isn't interesting to most people, even though it will at some point affect nearly all of them.

Since the public generally hasn't been lobbying Congress for preservation of consumer rights under copyright, and corporations with a vested interest in more copyright owner rights have, nearly all these changes have happened without much, if any, public input. And it seems as though Congress did little more than bow to this lobbying, without any consideration for just what copyright means, or what it was originally intended to be.

Every change to copyright law, since it's inception in 1790, has been to give copyright holders some new right that the public had previously enjoyed. These rights rarely had anything to do with 'copying', in the sense of making a reproduction that could be distributed. Copyright has become the instrument of restricting usage of a work, instead of restricting mere copying of the work. While these changes may have been intended to 'promote the progress of Science and the Useful Arts', the Constitutional intent of copyright, these changes do not fit with the definition of the word 'copyright', or with it's original statutory meaning.

In Closing

Over the last 200+ years, copyright law has changed dramatically. Most of these changes, however, have come in the last 50 years, with the extensions of the 1976 Copyright Act and the 1998 Sunny Bono Copyright Term Extension Act, and the massive legal creations of the 1998 Digital Millennium Copyright Act. None of these changes seem to fit with the original intention of copyright as written by the founders, or even with those changes made to copyright law prior to 1976 (with the exception of the short extensions made in the 1960s and 1970s leading up to the 1976 act).

Copyright, like all laws, is and always will be evolving. But the evolution of copyright is not like that of any other law, because no other area of law can be exploited by entertainment companies to maximize their profits though legislation and the resulting lawsuits. It has not been an evolution of societal views (as was the case with slavery and segregation), nor one of technology. It has been one of corporate profit, even when the profits are virtually non-existent.

References
1. http://www.copyright.gov/circs/circ1.html#hlc
2. http://www.census.gov/population/projections/nation/detail/d1999_00.pdf
3. http://www.law.cornell.edu/constitution/constitution.articlei.html#section8