Jat

http://www.eff.org/IP/DMCA/states/20...f_analysis.php

Yet another attempt of Corporate America working to take you rights and freedoms away.


State "Super-DMCA" Legislation:
MPAA's Stealth Attack on Your Living Room

Fred von Lohmann
Senior Intellectual Property Attorney
fred@eff.org

[Unfortunately I don't see anything there permitting redistribution]

Randi

This legislation is outrageous! PERMISSION to connect a VCR to a t.v.? Pay extra to have this permission, on the basis your intent is to record what you are already paying for to see? Isn't this rather fascist?

smugg

Well, guys, the Bill of Rights doesn't actually address your ability to make copies of copyrighted material, does it? While I may not be 100% behind the proposal, I think you guys take for granted that the T.V. shows are free -- even though the cost is not paid by you (directly) they aren't free. I think that because of the way commercial television works, the networks are going to have to do something if they want to stay in business now that TiVo et. al. removes the commercials for you.

Besides, Survivor may not be the Mona Lisa, but they don't hand out tracing paper at the Louvre.

Jat

But they do aloow you to paint a copy of the artwork there and of course take photos.

lisarea

Of course, though, this law doesn't simply address the issue of not watching commercials on broadcast TV. (Jack Valenti, if I recall correctly, called this 'theft' a while back. ) That's just a side effect. If that's all they wanted to do, it would have been simple for them to say so. But they're not getting legislation passed making it illegal not to watch commercials. If advertising supported media is to thrive, it has to do so on its own. It's silly, heavyhanded, and counterproductive to attempt to enforce behaviors. Regardless of the technology, people don't always watch commercials. What is the fundamental difference between skipping the commercials using technology, and going into the kitchen to get a glass of water until they're over? It's not the government's place to ensure the ongoing effectiveness of private industry's revenue generation models. That's not how capitalism works. That's not how a free society works. That's not how this country is supposed to do things.

And make no mistake--that is exactly what this sort of crap is for. (This is where someone much smarter than I am should insert a coherent rant about the personhood of corporations.)

Copyright violation is illegal, within a certain framework. Existing copyright law has certain fair use exemptions, allowing you to quote material in a limited fashion and make backup copies for personal use. The current wave of legislation, however, has allowed copyright holders to sidestep these exemptions, without ever directly addressing them. So, while I may have every legal right in the world to make a backup copy of a movie I purchase on DVD, I simply can't do it because the producers have included Macrovision technologies that preclude that. Laws regarding things like this are kind of sticky--when you purchase a book, a CD, a DVD, etc., you are essentially purchasing two things: a personal-use license to the copyrighted material, and the physical object itself. What has started to happen is that these large media associations such as the MPAA and the RIAA have begun to blur the lines with legislation such as the DMCA and this Son of DMCA. It's as though copyright laws are bleeding over and subsuming the basic concept of physical ownership. Laws like this, combined with absurdities like click- and shrinkwrap licensing create situations in which you can purchase a physical item and be limited in what you can do with it once you own it. All too often, too, it's done in such an obfuscated way that the consumer has no freaking idea they even agreed to those limitations.

Technically, under these laws, you could purchase a toaster--not license a toaster, but PURCHASE a toaster--and be legally prohibited from using it to toast anything but regular bread. Perhaps they could, in fine print, provide you with licensing options, for an additional fee, for use with such things as bagels and English muffins. You could buy a razor and be legally prohibited from refilling it with generic brand blades. It may sound silly, but that is exactly the sort of thing they're doing.

If you don't believe me, look up :CueCat and see what those idiots tried to pull off. They distributed free hand scanning devices in an attempt to support a ridiculous advertising model, and then attempted to limit what the people who received these scanners--often without having asked for them--could do with them. The only thing that actually subverted their odd little plan is that they were idiots, and included the shrinkwrap licensing with the Windows software disk distributed along with the physical device. As such, only people who opened the software had agreed to the license. (And I have my unopened shrinkwrapped CD, tucked away in my desk drawer.)

This kind of thing isn't limited to giveaways, of course. They could have just as easily done the same thing if people had purchased the scanners. (They're junky, relatively pointless little devices, though, so I don't think many people would have.)

The fact is that these laws don't really address the core issues they claim to be addressing. They expand copyright laws beyond their intended scope, by preventing even fair use through technical means. They prohibit any of a host of perfectly legitimate uses of technology in the interest of--what, enforcing? emphasizing?--existing laws. How far will we go in assuming guilty acts based on possession of devices that could be used to commit crimes?

Copyright and patent laws, as well as reverse engineering laws and practices, have been carved out very carefully to create the best compromise possible between protecting creators' rights and encouraging innovation. (I am pretending the Mouse Protection Acts don't exist, to simplify.) The current legislation does NOT address those laws directly, but seeks to subvert it through over-broad, vaguely written laws supposedly designed simply to ease enforcement of existing laws.

The whole thing is a backdoor approach to changing the fundamental nature of such things as our concept of ownership, physical ownership and licensing, and our traditional tools of innovation. Technology is developed and refined in large part through reverse engineering. We have patent law to protect the creators from flagrant copying, but laws like this subvert the intended scope of patents as well, making them far far broader than we've agreed is in our better interests as a society.

These laws seem designed to swing the fundamental balance of individual vs. corporate rights so far to the corporate end that it would change our fundamental understanding of the concept of 'ownership.'

The only reason this legislation is being allowed to pass is that people do not understand what it's about. It's boring stuff if you're not fairly geeky to begin with. People fall asleep before you're halfway into the arguments. They'd rather just go along with it than make the effort to understand all that crap about encryption and firewalls and region coding and stuff. And I don't entirely blame them.

But if you believe this kind of legislation will remain in the domain for which is was purportedly created, affecting only engineers and hobbyists, I think you're being naive.

Randi

lisarea:

:notworthy

Kinross

The consumer still holds ultimate power over the entertainment industry. Simply cancel your cable and refuse to adopt technology that violates fair use.

I canceled my cable three years ago telling the cable company that would continue to not use their service until they stopped supporting DMCA type legislation.

Have you?

harrije

One major area of copyright law which I expect to see thrust into the spotlight in the next half decade is the entire notion of copyright for computer software programs.

Consider: the Constitution gives Congress authorization to pass laws "for limited Times" that protect an author's investment in various intellectual property areas, including copyrights and patents, in order to "promote the Progress of Science and useful Arts."

The entire purpose for copyrights and patents is to give the original author a head start in establishing branding and initial recovery of research and development costs by limiting a short-term monopoly on the creation. However, the terms of copyright and patent laws require that at the end of the term of protection, the creations must then be turned over to the public domain. Limited short-term profit potential in exchange for long-term proliferation in the free idea market. That is the traditional, common law theory behind intellectual property rights.

Now consider: The current copyright terms for, say, Windows 2000, is the life of the author plus 70 years. I'm not sure what the exact "life of the author" means when the author is a legal corporate person, so let's assume that Bill Gates is personally the author of said software. Gates is middle-aged. He has a young daughter.

His daughter will be dead before the copyright Windows 2000 runs out. I had just started grade school when the first versions of MS-DOS started appearing; at no point in my life will the proprietary interests of the Microsoft Corporation be legally compelled to enter into the free idea market.

And yet within the next 18-24 months, Microsoft will make a public statement that it considers Windows 2000 to be obsolete, and that it will no longer offer support or product maintenance. Customers must live with obsalescence or pay the upgrade fees.

Let me rephrase that: Microsoft will publicly announce that Windows 2000 is no longer economically viable.

At that point, the common law basis for IP rights would suggest that Microsoft no longer even needs a copyright on its software. Such a copyright would no longer protect Microsoft's initial product investment, and such a copyright would serve to prohibit rather than to progress the sciences and useful arts (arch-conservative originalists on the bench must give themselves migraines trying to contort the Constitution to find out what Madison would have originally thought about computer technology, no?)

A sensible approach to software copyright law, then, would be to limit that copyright to a term of 3-7 years and to force the codebase into the public domain at the end of that term. The company is released from many tort liabilities and the need to continually defend the copyrights and patents. Simultaneously, new growth industries would have a chance to wedge into the marketplace by providing support for an obsolete product (consider a company which cannot afford to upgrade its entire computer platform, but which still needs continuing virus protection and so forth). Other companies might then branch the software in a new direction. What should Microsoft care? It has already branched its own code, and those branchings are still protected under the law.

Of course, they would still raise a fuss about it all. After all, wouldn't it be a little embarassing if they have to admit that sometimes they just sugar-coat the old stuff and call it new? But that is the price one pays in a competitive market: continue to be relevant, or fall to rising market interests. That is what capitalism is all about.

CTEA and DMCA were knee-jerk reactions to the peer-to-peer filesharing networks. The 17-25 year olds who one-upped the recording industries were branded as pirates and thieves. To some extent, this was not undeserved. Artists should recieve compensation for their works. However, the real issue at the heart of the matter was not piracy, but the inability of established "too big to fail" corporate interests to adapt in a timely manner to emergent technologies. Rather than encourage competition from below, Congress decided to shore up the established companies with the greatest financial interests in strengthening the status quo.

It was the wrong direction to go if the real interests were to preserve the long-term health of the economy. The U.S. might outlaw emergent technologies, but foreign companies won't, and with the inexpensive nature of computers these days, we might just be one-upped by 17 year-olds in some third-world country who decide to make a power grab.

excreationist

I agree that copyrights should be shorter.

BTW, apparently in 1790, copyrights only lasted for 28 years! (14 years, then can be renewed for another 14 years if the author is still alive) It has been extended a few times - the most recent time was in 1998 when the Disney corporation and Sonny Bono's widow got personal copyrights extended to the life of the author plus 75 years and corporate copyrights extended to 95 years. Disney wanted this to happen because the copyright on Mickey Mouse would be expiring a few years later. If this trend continues, copyrights would be perpetual - i.e. copyrighted works would *never* go back into the public domain. (Unless the copyright owners wanted them to). Apparently the United States Constitution, Article I, says that copyright should be for a limited time, but I guess if they made it a google (1 with 100 zeros) years that is still a limited time.... (i.e. still technically constitutional...) (source) (An article about it)

Jat

This is sort of hypocritical of Disney since most of their characters are based on stories which the copyright has long run out.