Arne Flones -- The Digital Millenium Copyright Act: A Corporate Bully Bludgeon
Jan 25, 2000, 23:00 (41 Talkback[s])
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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
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
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
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:
- Measures that prevent unauthorized access to a
- Measures that prevent unauthorized copying of a copyrighted
Note well, that these prohibitions have specific exemptions:
- Nonprofit library archive and educational institutions
- Reverse engineering
- Encryption research
- Protection of minors
- Personal privacy
- 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
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
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
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
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
Copyright 02000 by Arne W. Flones. All rights
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