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Arne Flones -- The Digital Millenium Copyright Act: A Corporate Bully Bludgeon

Jan 25, 2000, 23:00 (41 Talkback[s])
(Other stories by Arne Flones)

By Arne W. Flones

[ The opinions expressed by authors on Linux Today are their own. They speak only for themselves and not for Linux Today. ]

The Motion Picture Association of America and Real Networks are using the Digital Millenium Copyright Act to bludgeon consumers and to oppose rights long established in case law. Boycott DVD and Real Networks!

The Digital Millennium Copyright Act of 1998 (DMCA) was never meant to be a tool of the oppressor. However, that's exactly how Jack Valenti and his MPAA lawyer henchmen and the bully lawyers of Real Networks see it. These corporate thugs are using the DMCA to bludgeon consumers and to oppose rights long established in case law. I'm speaking of rights which cut to the core of primary Consitutional issues: fair use and equal access.

Disenfranchised

Both the DVD Copy Control Association and the MPAA have filed suit against Internet content providers who have posted the reverse engineered DVD decoder source code on their sites. The source code in question is essential to building a driver to support the DVD hardware. To deny access to the source code is to deny DVD access to any operating system which wishes to support DVD content. It also prevents people from exercising their fair use rights as guaranteed by law.

For Real Networks, the situation is slightly different. Real Networks (hereafter RN) supplies a huge percentage of streaming media content on the Net as well as products to access that content. Unfortunately their decoder products only fully support Windows 95/98/NT4 and, via a beta test version, Mac OS 8.x. Although their download page lists at least a dozen more platforms, some as obscure as Irix and SCO Open Server, virtually none of them are supported by the latest decoder.

A nearly totally useless alpha-level Real Media decoder is available for Linux. It hasn't seen a substantive update in many months. Earlier versions of the decoder may very well also be available for RN's listed litany of operating systems. Unfortunately, RN changed their format so that these old decoders will not function with current Net content. The result? RNs list of platforms is a tissue of lies. If you don't run Windows or Mac, you're out of luck.

Real Networks, Inc. is suing StreamBox, Inc. using the same DMCA tactic that Jack Valenti's hit men employ. StreamBox markets several products which will convert Real Media content to other formats or allow it to be saved for later playback, just like a VCR. These kind of activities are guaranteed under fair use principles of the Copyright law and have been upheld by the Supreme Court (see Sony Corp. v. Universal City Studios, Inc.).

The result of these policies and repressive litigations means that multimedia support for Linux and other smaller operating systems may be incomplete in the future. This speaks loudly for the advantages of open protocols.

The Weapon of Choice: The Digital Millennium Copyright Act

You're just another neighborhood bully. All you want to do is to express yourself to the rest of the world, "This is my turf and I'll beat up on anybody who walks here." That's Jack Valenti's MPAA and that's Real Networks, Inc. If you cross over into their neighborhood, they will hit you on the head with their weapon of choice.

The clause used as the bludgeon here is Section 1201 of the U. S. Copyright law. In certain circumstances it prohibits the making or selling of devices or services used to circumvent two classes of copyright protection measures:

  1. Measures that prevent unauthorized access to a copyrighted work
  2. Measures that prevent unauthorized copying of a copyrighted work
Note well, that these prohibitions have specific exemptions:
  1. Nonprofit library archive and educational institutions
  2. Reverse engineering
  3. Encryption research
  4. Protection of minors
  5. Personal privacy
  6. Security testing
Both the MPAA and Real Networks bully lawyers conveniently ignore these exemptions and interpret the prohibitions broadly. Apparently, so have some judges. But these special exemptions are not trivialities; they cut directly to the core of Constitutional issues.

The reverse engineering exception is described thusly by the U.S. Copyright Office Summary of the DMCA:

This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of a program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
In other words, if I need to reverse engineer the DVD code to make it work with Linux, the law explicitly says that this is legal. Furthermore, Section 1201(c)(1) explicitly states that nothing in Section 1201 affects rights, remedies, limitations or defenses to copyright infringement, including fair use.

As a matter of fact, these exceptions were so important that the Chairman of the House Commerce Committee, the Honorable Tom Bliley, made the special effort to extend his remarks concerning the DMCA. The exceptions to section 1201 figured prominently throughout his remarks. The chairman was particularly interested in fair use:

Section 1201(a)(1), in lieu of a new statutory prohibition against the act of circumvention, creates a rulemaking proceeding intended to ensure that persons (including institutions) will continue to be able to get access to copyrighted works in the future. ...[W]e felt strongly about the need to establish a mechanism that would ensure libraries, universities, and consumers generally would continue to be able to exercise their fair use rights and the other exceptions that have ensured access to works.
Here we see the original intent of a living law. So important is the protection of fair use to the DMCA that Rep. Bliley felt it was necessary to punctuate that which was already explicitly in the law. Then, concerning interoperability, Rep. Bliley said:
As advances in technology occur, consumers will enjoy additional benefits if devices are able to interact and share information. Achieving interoperability in the consumer electronics environment will be a critical factor in the growth of electronic commerce. Companies are already designing operating systems and networks that connect devices in the home and workplace. In the Committee's view, manufacturers, consumers, retailers, and professional servicers should not be prevented from correcting an interoperability problem or other adverse effect resulting from a technological measure causing one or more devices in a home or in a business to fail to interoperate with other technologies. [emphasis mine] Given the multiplicity of ways in which products will interoperate, it seems probable that some technological measures or copyright management information systems might cause playability problems.
Again, original intent speaks loudly for broad restraint in interpreting the restrictions of Section 1201. The exceptions built into DMCA were placed there precisely so that people can do exactly what Jack Valenti and Real Networks are attempting to enjoin them from doing. Knowing the intent of these exceptions, there is no other possible interpretation.

But none of this is stopping the MPAA and Real Networks from their rip-shod attack on fair use and the right to use reverse engineering to rectify the interoperability problems which are inevitable with their oppressively closed protocols.

A negative outcome in these cases could severely impede any burgeoning operating system by denying support for these media formats. This is where the Linux community's interests are foremost. Our reaction to these events must be united and strong. In addition to educating people with essays like this one, we can also provide financial support to organizations like the Electronic Frontier Foundation who have unselfishly been in court beside each and every DVD defendant. As a tight knit community, we can also speak in the marketplace.

Therefore, I will not use or buy any DVD products. I have purged all Real Networks products from my computers as well as all Real Media content. I will be proactive in informing those who use these products that I am most unhappy with them for doing so.

Boycott DVD and Real Networks, Inc.
Support the Electronic Frontier Foundation.

Citations

Copyright 02000 by Arne W. Flones. All rights reserved.


Arne Flones has worked in science and business programming for over two decades. Currently, he is a columnist for LinuxCare.com, editorial director for The Linux Show, and an independant software developer concentrating solely on Linux development.