August 17, 2001

Does this article violate the DMCA?

Author: JT Smith

- By Grant Gross -

In the three years since the U.S. Congress passed the Digital Millennium Copyright Act, the law's anti-circumvention provisions have now gone head to head with the U.S. Constitution's First Amendment in a handful of cases. So far, freedom of speech is getting its ass kicked by the DMCA.

The DMCA's collision course with freedom of speech and the press was a topic of much conversation during a panel discussion Wednesday evening after Princeton Professor Edward Felten's team finally presented the paper describing their hack of the Secure Digital Music Initiative's watermarking technologies.

Felten's continuing lawsuit asks that the anti-circumvention provisions of the DMCA be declared unconstitutional. The U.S. recording and movie industries have used those provisions as a threat against scientists and journalists who would dare to even discuss technologies that "circumvent" those multi-billion dollar industries' controls on what buyers do with their products.

In my limited understanding of constitutional law, the First Amendment freedoms normally trump any conflicting law Congress can come up with. That's not much comfort to the editors at 2600 Magazine, who were successfully sued last year for linking to the DeCSS code, which allows Linux users to decode and play DVDs.

However, Cindy Cohn, legal director of the Electronic Frontier Foundation, told audience members at the Wednesday panel the assumptions that the First Amendment reigns supreme can no longer be taken for granted after a judge ruled in August 2000 that 2600 Magazine is barred from even linking to the DeCSS code because of its supposed "bad intent." That case, in which members of the Motion Picture Association of America sued 2600, is now being appealed.

Cohn said that "bad intent" test is highly subjective, and I'll add, even for mainstream media that don't have the largely undeserved reputation that 2600 has as being a haven for script kiddies. "It's pretty cold comfort to think that later on, someone might take a look over your shoulder and say, 'It's actually OK what you did,' " Cohn said, in response to an audience question on the DMCA's impact on journalism. "That isn't the kind of thing that gives a lot of journalists a lot of comfort."

While some journalism groups did file statements in support of 2600, the potential impact of the DMCA on news reporting hasn't prompted a lot of protest in the mainstream media.

When journalists scream about their First Amendment rights eroding, few people sit up and take notice because they think it doesn't affect them. But consider this: If you don't care about the media's ability to do its job, you probably should care that there's now a growing list of cases where the DMCA and similar laws have been used in attempts to silence free speech. Including the 2600 case, Universal v. Reimerdes (a.k.a. the New York DVD case), there's also the California DVD case, DVD-CCA v. Bunner, in which the DVD Copy Control Association sued dozens of Web sites publishers, including the Linux Video and DVD Project's Matthew Pavlovich, for allegedly violating the California Uniform Trade Secrets Act for posting the DeCSS code. Pavlovich's case, a curious one because LiViD is hosted in Germany and that's nowhere near California at last report, is also under appeal.

Of course, there's also the Felten case, in which the recording industry threatened in April to sue Felten's team under the DMCA if the team released its successful compromises of the SDMI anti-copying technology. The Felten team presented its paper this week after the recording industry gave its "permission," but Felten's continuing lawsuit against the recording industry and the U.S. government is based on the fact that Felten's team -- or anyone else for that matter -- has no guarantee against a DMCA-driven lawsuit for any other presentations of the SDMI material or research based on that material.

Less connected to freedom of speech on its face, but one with potential impact, is the Dmitry Sklyarov case, in which the Russian programmer wasn't sued, but actually arrested, under the DMCA for trafficking in circumvention technologies. DMCA makes profiting on circumvention methods an actual crime. Like the Pavlovich case, the Sklyarov case is confusing because he was arrested while visiting the United States to talk at DefCon about his program that allows users to convert Adobe eBooks into other formats. The last time I checked, U.S. citizens weren't subject to Russian laws.

So how could a news article violate the DMCA? I'd never actively flaunt law-breaking of any kind, but in the interest of journalism, let's count the ways:

  • By linking to circumvention technology, as 2600 did. It's not out of the realm of possibility that such a news article at a for-profit Web site -- shhhh, let's not mention any names -- could be viewed as trafficking in and profiting from circumvention technologies, and thus be a criminal violation of the DMCA, a la Sklyarov.
  • By linking to scientific research about circumvention technologies, such the Felten paper. Remember, Felten and crew don't have the recording industry's guarantee against a lawsuit on any research beyond the Wednesday presentation.
  • By simply critiquing research such as Felten's. If I were a signal processing expert, I might say that the Felten team's research was brilliant in exposing the simplistic attempts by the SMDI Foundation to watermark music tracks. The Felten team appeared to uncover the watermarks easier than than a dog digs up a bone. During Wednesday's panel discussion, American University law professor Peter Jaszi said critiques of Felten's work -- admittedly more brilliant critiques than I've just offered -- may "theoretically" be interpreted as trafficking in circumvention technologies.

Other examples exist, I'm sure. Cohn said a journalist who hires the 14-year-old down the street to figure out the password on a protected disk containing government "secrets" would likely be violating the DMCA.

So why aren't the mainstream media up in arms about the DMCA? Good question, says Cohn.

My take: Big Media sees the people fighting this battle as fringe players. Those "hackers" are tilting at windmills Big Media thinks it'll never care about -- until the New York Times or ABC News gets sued for reporting on a circumvention technology. Then we'll all hear a lot of screaming, and we'll refrain from saying, "I told you so."

Cohn also suggested that mainstream reporters covering the issue are trying to appear objective. She also suggested a more sinister reason most of Big Media doesn't seem to care: "I suspect it has something to do with the fact that there's a lot of media conglomeration now, and a lot of the mainstream media in the U.S. is actually owned by content holders.

"If I were to speculate, I might speculate along those lines," she joked, "but I have no evidence, and I'm not normally prone to speculation."

Click Here!