philosophy

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		      Mad as Hell about the DMCA
			 By "Beale Screamer"


This document is intended as a position paper on copyright and the
abuses the copyright system has undergone, especially with the
introduction and abuse of the notorious Digital Millennium Copyright
Act (DMCA).  This document is originally distributed with software
that in fact clearly violates the DMCA, and so this gives background
on why I would write this software.  I hope that anyone who uses this
software reads the "README" and "LICENSE" files in the same
distribution, and respects my wishes as to how the software should be
used.  I do not want to create massive copyright infringement, but
rather hope to give people the tools to regain the rights that have
existed for centuries with respect to copyright, and are now in danger
of being taken away in a most uncompromising manner.

Copyright has always been intended as a balancing act between the
rights of authors/publishers and the rights of consumers.  Technical
advances are making it possible for publishers to take away
technically what they would have a hard time justifying legally or
morally.  And unfortunately, in a misguided attempt to address
copyright issues in the digital age, the U.S. government has given
legal backing to the technical means through the DMCA, outlawing
attempts at circumventing these technical protections.  In effect,
this gives publishers full and complete control over copyright issues,
without the annoyance of actually having to go through the usual
legislative debate and judicial review.  As a shock to no one, the
publishing industry (particularly the MPAA and RIAA) have used the
DMCA as a bludgeon to attack anyone who suggests that consumers and
citizens have rights too.  I hope people take my civil disobedience as
an opportunity to send a message to publishers.  To borrow words from
Howard Beale in the movie "Network," just yell to the publishers "I'm
mad as hell, and I'm not going to take this anymore!"


DISCLAIMER

I am neither a lawyer nor a copyright expert, so my personal opinions
are really those of an "interested outsider."  I have done extensive
reading on the basis and history copyright, as well as following the
most visible current legal cases regarding the application of
copyright and the DMCA.  But clearly no one should take any of the
information or ideas of this document as legal advice or precedent!  I
*am* an expert on the technical issues involved, and plan on being a
thorn in the side of the publishers until they adopt a more reasoned
and reasonable approach.  The current climate regarding these issues
leaves me little choice except to remain anonymous.  I don't intend on
being a martyr, or on spending the next decade of my life defending
myself in legal proceedings.


HISTORY OF COPYRIGHT

The history of copyright has been written many times, but a good,
brief account is available from the Association of Research 
Libraries [1].  For the past several centuries, copyright law has 
tried to balance the rights of consumers with incentives to authors
and publishers for promoting their work.  It is quite explicit in the
intent of copyright that in the sale of a copyrighted work, "once
purchased the copyright owner does not control the use of the work" [1].
Lawrence Lessig, a Stanford law professor and expert on these issues,
echoed this observation in an interview when he pointed out that "The
traditional idea of fair use - and the law has been extremely vague in
defining this - is that the copyright owners do not have the right to
perfectly control how you use their copyrighted material" [3].

However, the situation today with the DMCA is precisely the opposite
of this intent: the use of the DMCA often does not have to do with
limiting copying or distribution, but rather with restricting the use
of the copyrighted work.  The violation of this intent was described,
among many other places, in quote taken from a New York Times article
in which they wrote "In the past, when a company published a book, the
fair use rights of readers limited its control over the work. But if
the same company issues a book today and encrypts it, its control over
readers is far greater -- in fact, almost unlimited -- unless there is
a right of access to the material."

The DeCSS case is a particularly flagrant example of this: the DeCSS
code does not have any effect on DVD pirates, who can simply copy a
full disk as-is.  The entire purpose of using CSS by DVD publishers
seems to be to restrict how the material is used!  The purpose of
DeCSS was to allow legitimately purchased DVDs to be played on Linux,
a system that at the time did not support DVD playback.  It is
abundantly clear that this is 100% OK with respect to copyright;
however, it violates the DMCA, since the *use* of the material is in a
manner inconsistent with what the publisher desired.

The erosion of the reader's/listener's rights has been a steady process
for many, many years.  The limited time granted for copyrights has
been repeatedly lengthened, and now is a totally preposterous 70 years
past the death of the author.  While the "limited time" is no longer
terribly limited, the introduction of the DMCA goes even farther in
this extreme by allowing publishers to have an infinite-time monopoly
on a work: they can simply put technological protection measures on a
work, and the DMCA makes removing those measures a crime even when the
work is no longer covered by copyright!

The best treatment I've seen of these issues is an excerpt from Siva
Vaidhyanathan's book "Copyrights and Copywrongs: The Rise of
Intellectual Property and How it Threatens Creativity" that was
published on msnbc.com [2]. If the bulk of the book is as good as the
excerpt, this will be an outstanding book, and I take the liberty of
quoting quite a bit from this work here.  As an overall background to
copyright, Vaidhyanathan begins with the following:

    Copyright, when well balanced, encourages the production and
    distribution of the raw material of democracy. But after more than
    200 years of legal evolution and technological revolution,
    American copyright no longer offers strong democratic
    safeguards. It is out of balance. And our founders - especially
    Thomas Jefferson - would not be pleased.

    Copyright was created as a policy that balanced the interests of
    authors, publishers, and readers. It was not intended to be a
    restrictive property right.

I have to agree that the founders would not be pleased with what is
happening today.  Vaidhyanathan quotes the following passage from
Thomas Jefferson regarding copyright: "It's peculiar character, too,
is that no one possesses the less, because every other possesses the
whole of it. He who receives an idea from me, receives instruction
himself without lessening mine; as he who lights his taper at mine,
receives light without darkening me."

One of the big successes of publishers such as the RIAA and MPAA has
been a steady erosion and public brain-washing regarding the point of
copyright.  A simple but effective measure has been the modification
of terminology that is used for copyright violations: they speak of
people "stealing intellectual property" or "theft of copyrighted
music" in the trading of MP3s.  The wide-scale copying ala Napster
clearly is copyright violation, but "theft"?  The definition of
something being "stolen" means that it is taken from the rightful
owner - and the owner no longer has possession of that item.  As
Jefferson observed several centuries ago, this simply doesn't apply to
the types of material that are copyrighted.  Making a copy of an item
doesn't in any way remove that item from the original possessor, so
"theft" is clearly an inaccurate terminology.  However, the
publishers' insistence on using that word, and the public's acceptance
of it, means that a much more negative light is cast on an action
that, while wrong, is nowhere near the severity of a true "theft."

The use of terms "theft" and "intellectual property" cleverly casts
copyright issues as being "property" issues, although Jefferson and
other founding fathers explicitly did not accept the idea of writings
as property.  Remember: just because the publishers want you to think
of recordings and music as property does not make it so!

One final quote from Vaidhyanathan, this time talking directly about
the DMCA:

    This law has one major provision that upends more than 200 years
    of democratic copyright law. It forbids the "cracking" of
    electronic gates that protect works - even those portions of works