October 16, 2002

If I tell you that I'll have to kill you: Red Hat fights the DMCA

- By John Lettice -
-The Register -

Red Hat has struck a small blow against the DMCA, by publishing a security patch which can only be explained fully to people who are not within U.S. jurisdiction. The company's position here seems to be not altogether voluntary -- according to a spokesman "it is bizarre, and unfortunately something Red Hat cannot easily do much about," but like it or not Red Hat has been recruited to the campaign to make the DMCA look ridiculous.

The patch itself is on the Red Hat site, on this page, and the oddity here can be seen if you go down to the bottom. Under the heading "references" there is a link to http://www.thefreeworld.net/non-US/. At this point, those of you reading this while within U.S. jurisdiction should have a care. We will endeavour to unfold the tale to you without exposing ourselves to action under the DMCA, but we stress now that we are not encouraging you to do so, nor is it our intention to provide you with the tools to do so.

Thefreeworld.net is not as yet an especially widely-known site, but its purpose is explained here. Briefly, it notes that the United States has shown a readiness to bust individuals who perfectly legally publish information and software outside of the United States, on the basis that this is published to people within U.S. jurisdiction, among others. In order to publish this information without getting busted, Thefreeworld.net uses a licensing agreement which specifically rules out people within U.S. jurisdiction. You can see the licence here, and again we stress that people within U.S. jurisdiction should not accept this licence.

This bit makes it all nice and clear:

By continuing you warrant that you:

* are not a citizen of the USA.

* are not under US jurisdiction, including embassies, naval vessels, military bases and other areas of US jurisdiction.

* are permitted to import security information that may include information that can be used to subvert copy or content protection, even though this is not the primary purpose of the supply of this information.

* are not obtaining the information with the intent to commit a crime.

* understand the information is provided without fee and without warranty and/or guarantee of correctness of any kind.

* acknowledge that by downloading the data outside of the European Union you are performing an act of importation.

This rules out several Register staffers, and as Andrew Orlowski in particular, not being a U.S. citizen but being within easy reach of the feds (as the Reg's San Francisco correspondent), is particularly vulnerable to being lined up in front of a military tribunal in Cuba and shot, we caution him to stay away.

So what's all this got to do with Red Hat? Well, non-qualifying people, we can't exactly tell you that. But when we asked Red Hat about it we got an official comment which at least partially explains it: "RHSA-2002-158 is an errata kernel which addresses certain security vulnerabilities. Quite simply, these vulnerabilities were discovered and documented by ppl outside of the United States, and due to the Digital Millennium Copyright Act legislation in the United States, it is potentially dangerous to disclose any information on security vulnerabilities, which may also be used in order to circumvent digital security -- i.e. computer security. For this reason, RH cannot publish this security information, as it is not available from the community in the first instance. The www.thefreeworld.net site allows for accessing this information, but requires you agree to terms which protect the author and documenter of the patches from being accusations that they themselves have breached DMCA."

Got that? In some instances at least, the very act of explaining what has been fixed by a security patch could be construed as explaining how the security of a product could be breached, and hence could be viewed as a breach of the DMCA.

This is of course ridiculous. Does this mean that all of the companies issuing security advisories are breaching the DMCA? Well, quite possibly. Does it mean The Register's pole position security watcher John Leyden might be breaching the DMCA every day of his life? Oh dear.

Obviously, it is ridiculous, and the notion that the DMCA could be used to send virtually the entire security industry to prison for a very long time is ridiculous - just as ridiculous as the idea that the U.S. authorities are going to start flying non-U.S. citizens to Cuba to shoot them. But if neither of these things are ever going to happen, why do the laws permit them? At the very least, it's untidy.

It seems to us that the authors of the explanatory document which U.S. citizens are not permitted to read would have been most unlikely to get themselves busted by just publishing it. We could of course be wrong, but it seems to us the more likely purpose of the exercise was to make a point, which they have done splendidly.

The document has been copyrighted, and the authors have chosen to restrict its distribution, and to use Thefreeworld.net licence as the mechanism for doing so. Note that it is the copyright, rather than fear of the DMCA, that has forced Red Hat to join in. Looking at the Ts & Cs we think it would probably be OK (i.e. not a breach of copyright) for us to publish it here via a click-through agreement for the benefit (or should that be continuing deprivation?) of U.S. readers, and we could adopt a DMCA defence wall along the lines of Thefreeworld.net's in order to shield ourselves from the other stuff. Not that we'd be any more likely to get busted than the authors, but we feel a responsibility to support their stance here.

But as you already know where you can or can't read it, our duplicating the mechanisms here would serve no purpose. Making points in the way the authors have however does serve a purpose, because it keeps the DMCA in the public eye, and exposes its stupidities. More of this would be good, and possibly most excellent sport, we think.

And the perpetrators? It's not entirely clear, but Red Hat names some of the people involved in the fixes. In addition, we understand that some guy called Alan Cox might have been in some way connected. You may have heard of him.

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