Updated Thursday at 10:12 a.m. EST
In yet another example of how the Digital Millennium Copyright Act could trample on the First Amendment, Reuters may have violated the U.S. law by describing in a story this week how Sony's "copy-proof" protection for CDs can be defeated with a magic marker.
Of course, that would mean dozens of publications such as Yahoo.com and CNN.com, which carried the wire service's report, also violated the DMCA, and this very NewsForge article violated the DMCA by linking to the story.
What's this quaint notion about freedom of the press in the United States? Well, under the still enforced DMCA's anti-circumvention section, it's illegal to market information to the public on how to break copy protections, and the Reuters article did just that.
Under the 1998 law's sections 1201.2(a) and (c), it's illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is primarily designed to circumvent a copy protection. That's in part (a), and Reuters and its customers might be able to argue that the story wasn't "primarily" designed for that purpose.
But Reuters would have a lot of trouble getting around 1201.2(c). It outlaws the manufacture, etc., etc., of any "marketed" product or service that allows users to circumvent copy protections.
There's no question that Reuters marketed the story. Selling stories to its customers is the way it makes money, and several copyright lawyers suggest the "bad intent" language of those sections can easily apply to news stories. Reuters would have to be massively naÃ¯ve to believe that hundreds of music-sharing fans around the wouldn't test the magic marker technique on Sony CDs as soon as they read the story.
Read the Reuters description: "Monday, Reuters obtained an ordinary copy of Celine Dion's newest release 'A New Day Has Come,' which comes embedded with Sony's Key2Audio' technology. After an initial attempt to play the disc on a PC resulted in failure, the edge of the shiny side of the disc was blackened out with a felt tip marker. The second attempt with the marked-up CD played and copied to the hard drive without a hitch."
As pointed out on the Free Software law email list, here's how the penalties section of the DMCA reads:
"Any person who violates section 1201 or 1202
willfully and for purposes of commercial advantage or private
financial gain ... shall be fined not more than $500,000 or imprisoned for
not more than 5 years, or both, for the first offense ..."
How can you argue that Reuters didn't receive financial gain from this story?
This potential violation of the DMCA was first pointed out on the Free Software law list today, and one Reuters employee on the list contended that it's a stretch to say Reuters marketed the story as a way to circumvent the Sony copy protection. Here's the headline from Yahoo.com, you decide if that's marketing or not: "'Copy-Proof' CDs Cracked with 99-Cent Marker Pen."
In addition, 2600 Magazine has been prohibited from linking to DeCSS, the program that allows people to decode DVDs and play them on their Linux machines. If 2600.com can't even link to DeCSS in a news story, how can Reuters publish the instructions on how to defeat Sony's copy protections?
We first pointed out how the DMCA conflicts with the First Amendment back in August 2001, practically daring the DMCA cops to come after us in an article called, "Does this article violate the DMCA?" We pointed out then that the DMCA, in the 2600 case and others, was pretty much pummeling the First Amendment.
Of course, only a few people care about a niche Open Source news site and 2600.com. Our objections so far have raised few mainstream eyebrows. But Reuters can't have made Sony happy by publishing its article, and this may be the chance to get some heavyweight lawyers involved in a First Amendment vs. DMCA cat fight.
You have to wonder if a fight is what Reuters was looking for by publishing the article. It's hard to believe that Reuters was totally ignorant of the DMCA, although the anti-circumvention sections are much more well known in Free Software and Electronic Frontier Foundation circles than in the mainstream press. Another scenario is that Reuters knows about the DMCA rules and is deciding to take its chances.
Here's hoping this DMCA "violation" doesn't slip by. I'm asking Sony and law authorities, please, please, please, don't let Reuters get off when 2600 Magazine has been dragged through court for an alleged violation that was seen by tiny number of readers compared to the Reuters report. Please, Sony, Reuters has shown millions of people how to crack your copy protection, and you must take action.
It's time for a true First Amendment vs. DMCA slug-fest. It's time to get all kinds of Armani-suited lawyers involved in a two-out-three falls cage match in some New York courtroom.
It's time for the DMCA to get the butt-whooping it deserves from the First Amendment. It's time for the DMCA to die, in a way that's as slow and as expensive to the entertainment industry it protects as only a prolonged court fight could be.