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The Digital Millennium Copyright Act in Plain English

by Damian Yerrick

Imagine if all the major automobile makers required all buyers of their products to accept a contract along the following lines:

  1. You may not open the hood of this vehicle.
  2. You may not make the minor modifications necessary to operate this vehicle in any country other than the United States.
  3. If you find a safety defect in this vehicle, you may not report it to any third party.
  4. If you violate any of terms 1 through 3, you can be sent to prison for up to ten years.

This contract is the Digital Millennium Copyright Act of 1998. It applies not to cars but to entertainment products such as electronic books, CDs, and DVDs. The DMCA, codified as 17 USC 1201, prohibits circumvention of access control measures that publishers place on copyrighted works, even for otherwise lawful "fair use" purposes such as criticism, satire, and education. It (and the related Sonny Bono Copyright Term Extension Act) came about as the result of a WIPO treaty and a "soft money" donation of millions of dollars from major U.S. motion picture studios to both the Republican Party and the Democratic Party. The act also contains other provisions permitting operation of web caches, search engines, and store-and-forward message systems (such as e-mail and Usenet); see this information from the Library of Congress for more details. I will discuss only the access control circumvention issues here.

(The following "encrypted book" analogy is due to DarkbladePDX of Slashdot. Read the original version here.)

Imagine buying a book at the bookstore. You take it home, break the shrinkwrap, and open it. The inside front cover of the book has a stamp that tells in what part of the world you bought the book. So you flip past the title page, and instead of plain English (substitute your native language as necessary), you find a page of numbers, and then gibberish: "Gur Qzpn gheaf gur ragregnvazrag vaqhfgel vagb gur tbireazrag." After looking at it a bit, you find that the book is in English, with a simple cipher applied, something possibly as simple as moving each letter 13 spaces forward in the alphabet. However, without decoding it, you can't read it.

So you take the book back to the store. They tell you that all sales are final, that you can exchange a title only for the identical title, and that all copies of the book are encrypted. However, you can hire an employee of the publisher (called a "decoder") to live in your house and read the encrypted books to you, because this decoder understands the code. He looks up half the key from a particular point in the page of numbers and combines it with the other half in his own head. However, the decoder refuses to decode books that aren't from his part of the world. For example, if a book is stamped "United States and Canada," and the employee is from the United Kingdom, the decoder will not decode the book, and you will have to hire another decoder. This can become very expensive if you buy books from around the world. Also, the decoder is required to read the entire first chapter (consisting mostly of advertisements for the publisher's other books) every time he begins to read the book. In fact, the publisher can partially disable the decoder at any time without refunding any of your money, and the decoder will not be able to decode new books because the publisher no longer prints half of that decoder's key in new books.

In other words, you own a book that you are not allowed to read for yourself, and the only person who is allowed to read it for you cannot be hired by you, and is only lent to you, even though your payment for his services is not in any way or part refundable. The DMCA makes it illegal for you to do the following:

  • Learn to decode books yourself or tell anyone how to decode the books.
  • Make a recording or make a transcription of your decoder reading the book.
  • Hire a decoder that doesn't work for the publisher.
  • Teach the decoder to decode books from outside the decoder's native region or to skip the first chapter.

Similar terms apply to DVD techology. The book is like a DVD; it contains encrypted data and a region code. The decoder is like a part of every DVD player sold in stores. It's illegal to read the player software to determine how it works and then publish your results. It's illegal to modify American DVD players to play DVD discs manufactured for the United Kingdom, Australia, or any other country outside the United States and Canada. It's illegal to modify a DVD player to let you skip past ten minutes of previews for other movies. It's illegal to report flaws in the encryption or watermarking schemes used to protect the quality of the picture and sound. And you can go to jail for ten years.

All official DVD Video players include Macrovision, a system designed to prevent copying of DVD Video discs onto VHS tapes. Macrovision confuses the gain control and color correction of a VCR, making the picture fade in and out, and the DMCA prohibits manufacturers from selling VCRs that ignores Macrovision. However, some people must watch their DVD player's outputs through their VCR because the DVD player has only A/V connections and the TV has only an antenna connection. These people have no way to watch DVDs at full quality without buying another expensive television set.

Imagine buying a brand new album, taking it home, and discovering that it fails to play on your CD player, producing clicks and pops, repeating a short section of sound over and over, or even failing to be recognized as a CD by the player. Now imagine taking it back, getting the same title, and discovering that it fails in exactly the same way. The store clerk tells you, "They're all like that. The copy protection on the new CDs breaks the Red Book Standard [that is, the standard published by Philips governing how CDs work] in some way, and they just won't work in some high-end CD players." Such copy protection is designed to keep users from putting music discs into computers and extracting the audio. Extracting the audio would let a consumer play the CD on a computer or on a portable player such as a Rio or iPod player (both of which are lawful notwithstanding the DMCA), but it would also allow consumers to copy the music across the Internet without permission (which is unlawful in any case). The silliest thing about it is that some CDs published by Sony don't work in some CD players made by Sony.

Imagine if most if not all new books were shrinkwrapped and printed with ink that would fade thirty days after initial exposure to light, transforming a purchase into a mere rental. Imagine if all the major publishers forced you to agree not to use an assistive device that allows a machine to read the book to a blind person, such as a magnifying glass or a device that reads the words aloud. Imagine if you had to buy a $300 reader device for a $10 book, you needed a separate reader device for books published by each major publisher, and you could go to jail for making the minor changes necessary to make one device read books designed for another device. Current electronic book technology potentially suffers from all of these flaws.

The DMCA protects the motion picture studios from their customers, but it doesn't protect private citizens from the government. Official actions of law enforcement and intelligence agencies are completely exempt from the DMCA.

There are times when an identical defect in a product can both allow access control circumvention and safety defects. For example, if a particular form of encryption (that is, numerical scrambling of data to protect privacy) is commonly used to protect the security of financial transactions, and this encryption has a flaw, this can potentially be a safety defect. If Hollywood uses the same encryption to protect copyrighted works, then a scientific report about such a defect may draw lawsuits from the entertainment industry on grounds that the release of the information allows pirates to copy the work, even if the report mentions only the financial implications. The DMCA specifically permits encryption research and security tests, but if the entertainment industry has more money than a university, the industry gets its way in the court system.

Why didn't the motion picture studios and record labels tell you about the restrictions of the DMCA? They thought you wouldn't notice. They understand that most consumers prefer shiny things to liberty. Fortunately, you don't have to be one of them. Please sign this petition to repeal the DMCA and this petition to reject the upcoming SSSCA, which puts government spyware into all digital devices.

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