Five items follow: 1. A note from the American Association of Publishers to USACM (forwarded via Dave Farber's interesting-people list). 2. Matt Gaylor's response to AAP's Judith Platt about her Waco/Ruby Ridge reference (Judith's message is here: http://www.politechbot.com/p-02345.html) 3. A response from Mark Rosenzweig, American Library Association Councilor at large 4. A response from David Wagner, an assistant professor of computer science at UC Berkeley 5. A link to a relevant St. Petersburg Times column by Robyn Blumner -Declan ********** August 1, 2001 TO: U.S. ACM Public Policy Committee FR: Allan Adler, VP for Legal and Governmental Affairs, AAP RE: Digital Millennium Copyright Act ("DMCA") This memorandum is intended to respond to the letter dated July 26, 2001 which was sent to AAP President Pat Schroeder by Barbara Simons and Eugene Spafford, Co-Chairs of the U.S. Public Policy Committee of the Association for Computing Machinery ("ACM"), regarding ACM's opposition to the anticircumvention provisions of the DMCA. AAP is aware that ACM has "consistently opposed" the anti-circumvention provisions of the DMCA. During Congressional consideration of the DMCA in 1998, I recall accepting an invitation to attend a meeting of ACM's Public Policy Committee to debate a representative of the American Library Association regarding the merits of the then-pending legislation. Although the ALA representative failed to participate, I used the opportunity to have a lively discussion of differing AAP and ACM viewpoints with Committee members. Still, not all AAP members see eye-to-eye on every issue that AAP addresses. AAP's support for the DMCA, however, has on many occasions been vigorously detailed on the public record, both during the period of its enactment and in subsequent related rulemaking proceedings and amicus briefs. In each instance, the positions adopted by AAP were vetted through appropriate internal channels, usually the Copyright Committee but sometimes also through the Board or its Executive Committee. AAP's President and CEO signs off on all press releases issued by AAP, and AAP staff are (as a practical matter) able to act on established AAP positions without further clearance as part of their daily activities on AAP's behalf. AAP members are, of course, welcome to make their views known to AAP and elsewhere whether they agree or disagree with positions that AAP has taken. The specific points you raise regarding the anticircumvention provisions of the DMCA are familiar to AAP because all of them were raised and considered during the process leading up to enactment of the statute. AAP respectfully continues to disagree with ACM's stated positions for the following reasons: Requiring proof of infringement or intent to infringe, as a condition for enforcing the anticircumvention prohibitions, would nullify their purpose. Even without the DMCA, copyright law enables legal action against infringers. The anticircumvention provisions are supposed to be supplementary to this protection, not merely redundant, in acknowledgment of the enhanced risks to copyright protection posed by digital technologies like the Internet. The DMCA does not, and need not, authorize copyright owners to use technological measures to protect their rights; nothing in the law has ever prevented them from doing so. But the DMCA, in light of the WIPO Treaties' obligation to provide "adequate legal protection and effective legal remedies against circumvention" of such technological measures, recognizes that such measures will never provide meaningful supplementary protection against the capabilities for flawless digital reproduction and instantaneous digital distribution of protected works by unauthorized users unless the technological measures are themselves protected by law against circumvention. Otherwise, the use of technological measures would be futile because, as we've all seen, there would undoubtedly be constant and, inevitably, successful efforts made to break them. Making protection of the technological measures contingent on whether the copyright owner could prove infringement or intent to infringe would lead to the establishment of a competitive market for circumvention tools, and would allow individuals to expose ostensibly protected copyrighted works to unauthorized exploitation provided that they did so without themselves actually infringing or intending to infringe upon those works much as Mr. Sklyarov is alleged to have done in creating software that does not itself infringe upon the ostensibly protected "ebook" but strips away the technological protection measures provided by Adobe so that the "ebook" content is left vulnerable to infringement by others. Since you apparently recognize that there is no device which is currently capable of distinguishing "fair use" from foul, you can understand why the manufacture, distribution, etc. of circumvention devices is illegal under the DMCA even when, as in the case of technological measures that protect rights of a copyright owner under copyright law (as distinct from "access control" measures), the act of circumvention is not itself illegal. You should also understand why, since "circumvention" is a distinct concept from "infringement," there can be no "fair use" exception to the anticircumvention provisions. This is not a new concept in federal law. Similar laws supporting the use of technological measures with prohibitions against circumvention and against trafficking in circumvention devices were established in related contexts long before enactment of the DMCA; see, e.g , 47 USC 553(a) (prohibiting unauthorized reception of cable TV service, and the manufacture or distribution of equipment intended for the unauthorized reception of cable TV service); 47 USC 605(e) (prohibiting the unauthorized decryption of satellite cable programming signals, and the manufacture, assembly, import, and sale of equipment used in the unauthorized decryption of satellite cable programming). Neither of these laws, intended to permit control over copyrighted video programming, has any "fair use" exception. Again, it's not difficult to understand why when one considers the practical implications of such an exception, especially given some of the mistaken notions about "fair use" that are routinely circulated as articles of faith in some circles. Contrary to mistaken popular beliefs, "fair use" is a defense only against infringement. It does not provide a right of access to any work or, perhaps more to the point, to any particular copy of a work. Moreover, nothing in copyright law requires a copyright owner to facilitate or, again more to the point, to make it easy for someone to engage in any "fair use" of a work. Similarly, nothing in the law prohibits copyright owners from making "fair use" more difficult through the use of anti-theft measures in connection with a particular copy of a work. If it were otherwise, "fair use" could be invoked to justify breaking into a bookstore, library, theater or even a private home so long as the purpose of doing so was to make "fair use" of a particular copy of a copyrighted work found within. People could insist on a right to enter a movie theater without charge in order to watch a movie and, perhaps, even copy a portion of it for the purpose of educational use or criticism. The hypotheticals can go on and on. Far from being "overly-broad" in its approach to "multi-use technologies," the standards created in the DMCA by Congress are clearer and much more specific than the largely impractical "capable of substantial noninfringing uses" test concocted by a closely-divided Supreme Court seventeen years ago in the Sony case. In order for a person manufacturing or distributing a device to run afoul of the anticircumvention standards, the device must (1) be "primarily designed or produced for the purpose" of circumventing, (2) have "only limited commercially significant purpose or use other than" to circumvent, or (3) be "marketed by that person or another acting in concern with that person with that person's knowledge for use in" circumventing. These standards clearly do not threaten VCRs or PCs and can hardly be characterized as traps for the unwary. As for the exemptions from the anticircumvention provisions, well, they may not be as broad as ACM would prefer, but AAP believes they represent a fair attempt at balancing competing interests. The "reverse engineering" exemption, for example, essentially codified the existing caselaw as represented by Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). The "encryption research" exemption broadly permits such research, together with the use of appropriate tools, provided that criteria for "good faith encryption research" are met. The underlying concept of the exemption is to ensure that such research is not merely a pretext for circumvention, and to emphasize that valuable legitimate research can be conducted without facilitating infringement. Beyond this, the "security testing" exemption, which focuses on circumvention to access a computer, computer system, or computer network, was included precisely in recognition of ACM's point that merely providing an "encryption research" exemption would be too limiting with respect to computer security research. As a final point, I would urge interested ACM members to carefully read not only the actual language of the DMCA anticircumvention provisions, but also the legislative history as set forth in the House Judiciary Committee's Section-by-Section Analysis of the House-Passed Version of the Legislation, 105th Cong., 2d Sess. (Serial No. 6) (Sept. 1998) and the House-Senate Conference Report on the Final Version of the Legislation, 105th Cong., 2d Sess. (Rpt. No. 105-796) (Oct. 1998). Hopefully, these explanations of the legislative intent behind the DMCA's provisions will help to allay some of ACM's concerns. ********** Date: Sat, 4 Aug 2001 15:50:26 -0400 To: jplattat_private From: Matthew Gaylor <freemattat_private> Subject: Association of American Publishers Derides Ruby Ridge & Waco types Cc: Declan McCullagh <declanat_private>, lisa_bowmanat_private, politechat_private Excerpted via http://www.politechbot.com/p-02311.html : > >...librarians are finding themselves the subject of rhetoric usually > >reserved for terrorists or revolutionaries. "They've got their radical > >factions, like the Ruby Ridge or Waco types," who want to share all > >content for free, said Judith Platt, a spokeswoman for the Association of > >American Publishers. Judith, It's a sad day in America when criticism over the shooting of an unarmed women with a baby in her arms by a FBI sharpshooter (Vicki Weaver shot in the head by FBI's Lon Horichi at Ruby Ridge) and the assault and subsequent inferno that killed over 80 men, women and children by government agents at the Branch Davidian Church in Waco, TX is considered radical. Regards, Matt Gaylor- { Judith Platt may be reached at <jplattat_private> } [Also sent to Freematt's Alerts, thousands of subscribers worldwide.] [Archive and subscription info at http://groups.yahoo.com/group/fa/ --DBM] ********** Date: Sat, 4 Aug 2001 17:51:01 -0500 To: Judith Platt <jplattat_private>, "'declanat_private'" <declanat_private> From: Mark Rosenzweig <iskraat_private> Subject: AAP v."extremist" librarians (Waco-style) Cc: srrtac-lat_private, plg-lat_private What follows is one ALA Councilor's reaction(mine) to the AAP's current spokesperson re: librarians and copyright.... +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Dear Ms. Platt You wrote the letter below in reply to Declan McCullaghs' response to publication of your allegations about librarians ("...librarians are finding themselves the subject of rhetoric usually reserved for terrorists or revolutionaries. "They've got their radical factions, like the Ruby Ridge or Waco types," who want to share all content for free, said Judith Platt, a spokeswoman for the Association of American Publishers...") As you know, your quoted remarks in that recent article http://news.cnet.com/news/0-1005-201-6545588-0.html followed the earlier, unexpectedly yet unabashedly hostile public statement of Pat Schroeder on behalf of the publishing industry, that, put quite simply "Librarians are the enemy", a brief and bold characterization which was never effectively disclaimed as the emphatically-made, yet entirely erroneous characterization it was. Now you begin a reply to Mr. McCullagh, 'explaining' yourself... "In case anyone out there is REALLY interested in the truth re the ZDNEt story on librarians and copyright, I was quoted completely out of context." Why wouldn't librarians "REALLY" be interested in the truth? One truth one discerns is that you can't disguise the fact that you believe you are, somehow, the injured party here and that your remarks, "taken out of context", were entirely innocent. Yet how innocent can they be when they were entirely consistent with - and a rather grotesque elaboration of - Pat Schroeder's earlier battle cry that, for publishers, "Librarians are the enemy"? Your saying what you did strongly suggested to most people the continuity of that attitude in the AAP. That's the larger "context" of your remarks as I see it. You now say: >"My reference to "Ruby Ridge," while perhaps ill-advised, was >used metaphorically to indicate an extremist position out of the >mainstream--a very radical view that has been expressed in some quarters >(although not by any librarians of my acquaintance...)" Your reference to "Ruby Ridge" (and Waco) was CERTAINLY "ill-advised." It was also entirely inappropriate and distasteful. It wouldn't be fair to use it to characterize ANY 'factions' in the library field , including those who actually take the position you describe as "radical" and "extremist" (you claim now that you don't even know any such factions or persons ). What's "extremist" was your analogy of rational, non-violent professionals, in this case librarians -- some holding a different philosophical point of view than your bosses' on a contentious issue --as, on that account, IN ANY WAY comparable to gun-toting cultists (your references to Waco, Ruby Ridge) who were considered so dangerous (in my opinion, without justification) that they were ruthlessly destroyed by the government! When all is said and done, I suppose the AAP believes (and this is the implicit meaning of your initial remarks on their behalf) that it should be clear that anyone, any librarian "radical", who suggests that whatever the publishing industry feels they need to do to maximize their profits may not necessarily be in the public interest, would deserve "metaphorically" having their public library burned down with the "radicals'" inside, a la Waco. Mark Rosenzweig ALA Councilor at large [for ID purposes only] Councilor, SRRT/ALA (Social Responsibilities Round Table/ALA ) [for ID purposes only] ********** From: David Wagner <dawat_private> Subject: FC: AAP's Judith Platt replies to Politech post, clarifies remarks To: jplattat_private Date: Sat, 4 Aug 2001 12:52:59 -0700 (PDT) Cc: declanat_private In article <5.0.2.1.0.20010804120845.0203c210at_private> you write: >From: Judith Platt <jplattat_private> >To: "'declanat_private'" <declanat_private> >Subject: The ZD Net Story >Date: Mon, 30 Jul 2001 10:40:19 -0400 > >[...] My reference to "Ruby Ridge," while perhaps ill-advised, was >used metaphorically to indicate an extremist position out of the >mainstream--a very radical view that has been expressed in some quarters >(although not by any librarians of my acquaintance) that all computer code >is protected speech under the First Amendment and that no one--neither a >publisher nor an author, nor anyone else-should be able to encrypt >copyrighted material to protect it from unauthorized use and reproduction, >and expect the encryption to be viewed as any other lock used to protect >property. [...] Thank you for your note. I wanted to argue that this is hardly an extremist position, when one considers the important differences between everyday locks and the special privileges the DMCA accords to copy protection systems. In particular, when we talk about physical locks, I am perfectly free to break open locks on my own property (I can't cut a lock protecting someone else's property, but I certainly can cut a lock protecting my own property if I like). However, when it comes to copy protection systems, the DMCA appears to make this illegal: I am no longer allowed to break the encryption on my own property. One consequence of this rather strange prohibition is that it threatens scientific research into the field of copy protection systems, encryption, and computer security. The study of codemaking is fundamentally interwoven with the sudy of codebreaking: One cannot build secure systems without knowing how they may be attacked, and this involves trying to break our own systems to see how strong they are. Under some readings of the law, publishing tools and techniques for this purpose may be prohibited by the DMCA, and some researchers (such as Prof. Felten at Princeton) have already felt the effects of the DMCA. I am deeply concerned that the AAP's position is short-sighted and will stunt innovation in copyright protection technology by chilling scientific inquiry. As a scientist working in this field, I can say that the DMCA leaves me scared to continue working in this area. I hope that the AAP will re-consider its position. The AAP should clearly distinguish circumvention for the purpose of actual copyright infringement from circumvention in service of scientific inquiry. -- David Wagner Disclaimer: I am an assistant professor of computer science at UC Berkeley, but I wrote solely in my own personal capacity as someone interested in furthering the science and practice of computer security. ********** From: Mark Dallara <mdallaraat_private> To: declanat_private Subject: St. Pete Times on "Internet copyright tizzy" Date: Sun, 05 Aug 2001 13:29:50 -0400 Declan, The DMCA and Dmitri Sklyarov both get a mention in this column by the former director of the Florida ACLU: http://www.sptimes.com/News/080501/Columns/Internet_copyright_ti.shtml Internet copyright tizzy will pass By ROBYN E. BLUMNER © St. Petersburg Times, published August 5, 2001 Re, Mark Dallara www.xenu-city.net ********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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