TECHNOLOGY IN PRACTICE
E-DEFINITIONS WITH MARK TAMMINGA
The Cudgel of Copy Protection Schemes
DMCA provisions to keep the genie in the bottle have unsettling implications.
In the mid-1980s, Stewart Brand, the creator of the Whole Earth Catalog, coined the phrase "Information wants to be free." But that was only the first half of the sentence. It wants to be free, Brand suggested, "because it has become so cheap to distribute, copy and recombine." He didn’t stop there, either. In roughly the same breath, Brand observed that information also wants to be expensive because of its potential value to the recipient.
But people hear what they want to hear. So in short order, Brand’s insightful formulation that information wants to be all kinds of things was stripped down to just "Information wants to be free." And that’s a tight little phrase you can really use to scare people, especially people who own copyrighted stuffpeople like recording, publishing and film executives. By 1995, they were in a collective funk about the specter of perfect, free and uncontrollable digital copies of their expensively acquired and still quite profitable intellectual property swirling around that crazy Internet thing. So they stormed Washington in a sustained effort to Keep Things the Way They Were.
Congress came through. In 1998 it passed the Digital Millennium Copyright Act, the most radical reworking of copyright law in decades. No one disputed the requirement for copyright reform in a digital world, and the United States had obligated itself to do something when it signed on to the World Intellectual Property Organization Copyright Treaty in 1996. But the DMCA went further than simply updating copyright law or complying with treaty obligations. It handed copyright owners just the cudgel they needed to beat up on all them nasty, no good, copyright thievin’ varmints on that dang Internet.
The DMCA cudgel is found in Section 1201—the anti-circumvention provisions. Here’s the operating theory: If you’re trying to ensure the genie stays in the bottle, forget about the genie. Concentrate on the bottle.
In the digital context, the bottle is copy protection technology designed to keep binary forms of music, movies and books stoppered up and under the strict control of copyright owners. Without deploying technical safeguards to protect copyright, goes the argument, all the valuable intellectual property in the world would quickly be pirated by unscrupulous teenagers, thereby destroying the world as we know it.
Can’t have that. So Section 1201 lends some legislative muscle to the entertainment industry’s attempts to restrict use of its content. The section starts by requiring that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." Then, just to make sure that all angles are covered, it insists that "No person shall ... traffic in any technology ... that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." As the Electronic Frontier Foundation has pointed out, this amounts to a ban on acts of circumvention as well as a ban on the distribution of tools and technologies used for circumvention.
What do these prohibitions mean in practice? Well, the fact that music CDs can be played on computers has caused no end of heartache for the music industry. If you can play a CD on a computer, you can also copy the music freely, perfectly and uncontrollably.
This spooked Sony enough to create Key2Audio. By loading the outermost track with junk data, the Key2Audio-protected music CD is rendered unplayable on computers. Regular CD players ignore this track and carry on with the business of playing music. Pretty nifty. Except that Key2Audio CDs cannot only crash PCs, they can actually damage some iMacs by locking their CD trays and making the machines unbootable.
But—returning to the point—if you take a felt-tip marker and black out that outermost track, you can disable the Key2Audio copy protection scheme. It’s almost comical. Do so, however, and you are probably in violation of the DMCA. Inking over the outer ring of your Key2Audio CD could easily draw you into an expensive federal court action launched by the copyright owner. If you do your inking for "commercial advantage or private financial gain," you’re looking at a $500,000 fine and five years in the slammer for a first offense—double that if you brandish your felt-tip marker a second time.
Of course, all you wanted to do was make a copy of the CD so that you could play your music on your portable MP3 player, just like the old days when you recorded your LPs onto cassettes to play in your car. Sorry, Bub. That old fair use principle has been nothing but trouble for the entertainment business; time to shut it down. The DMCA prohibition on acts of circumvention is a good first step.
Adobe eBook Reader
The real targets of the DMCA, however, are the distributors of circumvention tools and technologies. Here’s a case in point. The Acrobat-based program Adobe eBook Reader is used for publishing books electronically. It is loaded with multiple levels of security that publishers can use to preclude the printing, copying and even lending of electronic books. Use restrictions like that make for a juicy target.
One company that rose to the bait was Elcomsoft, a Russian software company. It makes the Advanced Ebook Processor, a little security cracking tool designed to cleanly and simply strip away all that eBook copy protection. This tool, as it happens, is perfectly legal in Russia.
Enter Dmitry Skylarov, a 27-year-old Elcomsoft programmer with the dubious distinction of being the first person charged under the DMCA’s anti-circumvention provisions. Skylarov had flown from Russia to Las Vegas to give a speech on just how easy it was for Elcomsoft to break the eBook copy protection when, on July 17, 2001, he was busted by the FBI for "distributing a product designed to circumvent copyright protection measures." He spent the next three weeks in jail and was released only after posting a $50,000 bail and giving up his passport. Skylarov is back in Russia, but criminal prosecution under the DMCA continues against Elcomsoft.
The implications are serious and chilling. Most of the copy protection schemes proposed by the entertainment industry are junk and can be easily bypassed. Yet breaking those lousy technical controls now invites criminal sanction. "It’s the equivalent of tying doors shut with string and outlawing scissors," grumbled one commentator. We are all in danger if encryption research is litigated into hiding.
As Lawrence Lessig has noted, "Research into security and encryption depends upon the right to crack and report." The DMCA, he continues, is "law protecting software code protecting copyright.…Copyright law permits fair use of copyrighted material; technologies that protect copyrighted material need not. Copyright law protects for a limited time; technologies have no such limit."
The abuse inherent in using technology to protect copyright is rapidly becoming one of the key technology issues of our time.
Mark Tamminga (email@example.com) practices law and fiddles with software at Gowling Lafleur Henderson LLP in Toronto.