philosophy

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    that might be in the public domain or subject to fair use. It puts
    the power to regulate copying in the hands of engineers and the
    companies that employ them.

The last sentence is vital: the regulatory role regarding copyright
has now been fully turned over to the publishers and technology
producers.  Congress has explicitly written itself out of the loop on
such regulatory issues, and has thrown the balance between publishers
and citizens entirely to the control of the publishers.  The citizens
have lost their voice in these matters, and unless Congress acts to
drastically change the DMCA and reassert the consumer side of the
balance, we simply will have no say in what rights the publishers
deign to allow us to have.


HOW THINGS SHOULD BE

Any Digital Rights Management (DRM) scheme has two sides: on the one
hand, the most obvious use is to take away the rights of the consumer.
On the other hand, it can in fact be used to give the consumer *more*
possibilities than existed before.  I think the idea of limited time,
full-length previews, or time-limited Internet-based rentals is
excellent.  If DRM was *only* used for this, in order to give us more
options than we previously had, I would not have taken the effort to
break the scheme.  What is bad is the use of DRM to restrict the
traditional form of music sale.  When I buy a piece of music (not rent
it, and not preview it), I expect (and demand!) my traditional fair
use rights to the material.  I should be able to take that content,
copy it onto all my computers at home, my laptop, my portable MP3
player, ...  basically anything I use to listen to the music that I
have purchased.  I can't do this at all with Microsoft's DRM scheme.
Ideally, I would see two types of sales: limited, clearly spelled-out
licenses for rentals and previews, and traditional sales, where the
content is not protected, and ideally is provided in an open,
non-proprietary format.  As long as publishers insist on removing our
rights in a traditional sale, we will continue to fight back with
technical and legal measures.

To complicate matters in the specific case of Microsoft's DRM version
2 technology, not only are licenses applied, but there doesn't seem to
be a clear way to even see what your license really enforces.  A
technically skilled person who knows how the scheme works can look
through the binary license file, find the ACTION strings, and figure
out what restrictions the license imposes, but the overwhelming
majority of people simply will have no idea what license they have
purchased.  If a publisher decided to hide a 5 year expiration date in
the license, for whatever reason, the average consumer would have no
way of knowing this.  And after 5 years, your license would go away,
and there would be nothing you could do about it.

Laws passed by the government should not simply do corporate bidding.
Congress is supposed to be there to protect *our* rights, but
unfortunately, money talks, and that seems to be the basis of the
DMCA.  Even with legal issues put aside, technology has the ability to
take away our rights, especially if cryptographic "secure hardware"
gets incorporated into devices.  The government should be using its
power to *limit* that, not enhance it!  In other words, the government
should be passing laws that guarantee that the citizens retain their
fair use rights, *regardless* of what the technology allows.  And laws
should somehow (escrowed keys for corporations, perhaps!?)  be in a
position to guarantee that technical measures expire at the same time
the copyright does, forcing the work into the public domain as has
been happened historically.  And finally, if the technology is used
for new services, laws should ensure that the technology should be
designed in such a way that full disclosure of license restrictions is
made to the consumers.

I'm not sure I hold out much hope of this happening.  The publishers
will certainly fight strongly against it.  But until such changes are
made, expect to see me and others like me doing acts of civil
disobedience in order to salvage what we can out of this travesty.


CURRENT ABUSES

The DMCA has been used in a reprehensible fashion in at least 3 cases:
the DeCSS case, the case of Edward Felton, and the case of Dmitri
Sklyarov.  The DeCSS case was mentioned above, where the MPAA used the
DMCA as a weapon to attack a tool whose primary use is to make legal
use of legally obtained material (DVDs).  However, since the
particular use is not sanctioned by the MPAA, they used the DMCA to
criminalize what would otherwise have been a perfectly legal use.

Increasing the level of appalling behavior, the SDMI Foundation
threatened to sue Professor Edward Felton for disclosing an attack on
several of the SDMI audio watermarking technologies, even though the
attacks were performed at the specific invitation of the SDMI
Foundation!  By participating in the SDMI challenge, and rejecting any
claims to the cash prizes offered, the challenge announcement clearly
allowed Felton to retain rights to publish details of his work.  In
the DeCSS case, Judge Kaplan decided that DeCSS could be suppressed,
despite first amendment concerns, because computer code was not
allowed the same rights as English prose.  This seems to contradict
the decision in the Bernstein case that source code is protected
speech, but this is just one of the many decisions Kaplan made in this
case that were very poorly thought-out.  Kaplan decided that code
wasn't protected speech, so Felton's paper carefully avoided including
any code, and stuck to straight English descriptions.  Even so, the
SDMI Foundation, in its initial threats to sue Felton and his research
group, was somehow trying to make the argument that English
descriptions are no longer protected speech.  This is clearly absurd,
and the RIAA and SDMI Foundation have apparently understood this and
backed off in their initial threats, now going so far as to claim they
never intended to sue.  However, their actions with Professor Felton
are clearly at odds with their later revised history of events.

Finally, the case of Dmitri Sklyrov is perhaps the most appalling of
all.  Among its other problems, the DMCA has taken what has
traditionally been a civil matter (copyright issues) and criminalized
certain actions.  Dmitri Sklyrov wrote a program that removes
protections from Adobe e-books, restoring traditional fair-use rights
to e-book owners.  Furthermore, he wrote this program in Russia, where
it is not illegal.  His company (and I don't believe there are any
claims that he did this personally) distributed his unlocking software
from a U.S. website, and on the basis of this Sklyrov was arrested
when he made a trip to the U.S.  Sklyrov has actually spent time in
jail on these extremely flimsy grounds, and faces a criminal
prosecution in the matter.  Despite the fact that Adobe has
subsequently said it doesn't wish for Sklyarov to be prosecuted, the
government is continuing in its case.  This is apparently the reward
that the government gives for people who stand up for their fair use
rights under copyright law, and is the primary reason I'm remaining
anonymous.


FUTURE

What does the future hold?  Hopefully, the government will start
acting to protect citizen's rights instead of corporate interests.  If
this doesn't happen, expect to see many of the current DRM schemes
being very publicly broken as an act of protest.  I will stay quiet
for a while, until any publicity of this current work dies down, but
there are many, many others out there that have the ability to do
precisely what I've done, and are in fact doing so right now.
Remember: "We're mad as hell, and we're not going to take this any
more!"


REFERENCES

[1]  http://www.arl.org/info/frn/copy/timeline.html
 
[2]  http://www.msnbc.com/news/594462.asp?cp1=1
 
[3]  http://www.openp2p.com/pub/a/p2p/2001/01/30/lessig.html


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