FC: Internet Society opposes proposed anti-copying laws

From: Declan McCullagh (declanat_private)
Date: Thu Aug 15 2002 - 14:37:18 PDT

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    From: "Julie Williams" <jwilliamsat_private>
    Subject: [press] ISOC Releases Statement On Digital Rights Management
    Date: Thu, 15 Aug 2002 16:48:26 -0400
    
    FOR IMMEDIATE RELEASE
    August 15, 2002
    Contact: Julie Williams
    703-326-9880, x111; 703-402-6715 cell
    
    STATEMENT OF THE INTERNET SOCIETY ON DIGITAL RIGHTS MANAGEMENT
    
    Washington, D.C. - The Internet Society strongly opposes attempts to impose
    governmental technology mandates that are designed to protect only the
    economic interests of certain owners of intellectual property over the
    economic interests of much larger portions of society.  The current debate
    in many countries of the world regarding digital rights management (DRM) has
    illustrated the inevitable conclusion of technology mandates in law: a world
    where all digital media technology is either forbidden or compulsory. The
    effect of these mandates is to grant veto power over new technologies to
    special interest groups who have continually opposed innovation.
    
    There are many policy reasons that can be advanced to oppose government
    intervention in technology.  Society at large has a powerful economic
    interest in promoting research resulting in the creation of new products and
    services as well as new jobs. Many of the legislative proposals currently
    under consideration would shackle technology and the research needed to
    support it, solely for the benefit of one small group. From the standpoint
    of sound public policy, intellectual property rights must be respected but
    must also be kept in balance with other rights and interests. In particular,
    copyright law is a kind of "bargain" between rights owners and consumers.
    Copyright, except in rare instances, is not perpetual, and there are a wide
    range of fair use exceptions to copyright that limit its restraints. Without
    these limits, copyright would soon become an oppressive burden on creativity
    and freedom of expression. The Internet Society acknowledges these policy
    considerations, but also believes that there are other even more persuasive
    arguments, based on sound engineering and technological principles, that
    show the folly of government mandated technology.
    
    Technology mandates are inherently anti-innovative. The entire concept of a
    mandate is that it freezes a particular technology at a point in time, and
    inhibits research and development on new and better technology.
    Technological standards are desirable and even necessary for widespread
    implementation of new technology, but all standards sooner or later must
    give way to new standards. This process should not be impeded by legislation
    that effectively prohibits research and development.
    
    A classic illustration of the dangers of DRM legislation may be found in
    legislation enacted by many countries as part of their treaty obligations
    under the World Intellectual Property Organization (WIPO) copyright
    treaties. The so-called Digital Millennium Copyright Act (DMCA), passed by
    the United States Congress in 1998, is an example. Under the WIPO treaties,
    the United States, like the other countries bound by the treaties, had an
    obligation to "provide 'legal protection and effective legal remedies'
    against circumventing technological measures, e.g., encryption and password
    protection, that are used by copyright owners to protect their works from
    piracy . . ." [See S. Rep. No. 105-190, at 8, 10-11 (1998)].  The DMCA, in
    responding to this obligation, illustrates the "law of unintended
    consequences." While purporting to help copyright owners, it seriously
    threatens research in the field of encryption for security.
    
    The DMCA prohibits "circumvention" of existing technological measures (such
    as encryption) that control access to a work and encryption; it prohibits
    "trafficking" in technology designed to circumvent access control; and it
    prohibits "trafficking" in technology designed to circumvent copying. These
    prohibitions are subject to certain exceptions; the DMCA acknowledges rights
    of fair use, so that, in certain limited circumstances, circumvention of
    copying protection for purposes of fair use of an encrypted work does not
    violate the act.
    
    Another important exception is the separate provision of the DMCA that
    allows circumvention of access controls for the purpose of encryption
    research to identify flaws and vulnerabilities of encryption technology.
    This provision is narrowly drawn with explicit conditions relating to good
    faith in performing research. Most significantly, the exception is for
    access only; it does not permit what the act refers to as trafficking in
    such research.
    
    The danger to research presented by statutes like the DMCA is best
    illustrated by a real world example of a researcher in the field of
    encryption. Just because cryptography can be or is being used for purposes
    other than copyright protection, does not mean it is not also used for
    copyright protection and therefore subject to the provision of the DMCA.
    Although a researcher may be looking at a certain type of cryptographic
    technology that is used to protect packets containing information in the
    public domain, that same technology might also be used to protect other
    packets that contain copyrighted data, unknown to the researcher. Likewise,
    a researcher might attempt to break the protection on an item without
    realizing that the protected item is a copyrighted work, which may not be
    discovered, if at all, until it is too late. But the issue isn't whether the
    researcher has cracked the protection - the issue is what the researcher may
    do with the resulting information.
    
    A central question for encryption researchers is whether publishing the
    results of their research amounts to disseminating something whose primary
    purpose is to circumvent copyright protection. Under the DMCA, the act of
    circumventing access controls for good faith research, standing alone, is,
    generally speaking, legitimate. This does not present great problems to
    researchers. However, when the researcher then wishes to publish the results
    of the research, the DMCA provides a test of the intent of the original
    circumvention that depends on whether the subsequent publication is made to
    "advance the state of knowledge" of encryption research, or whether it is
    made "in a manner that facilitates infringement." In other words, if the
    researcher acts in good faith to circumvent access control and publishes
    with the intent of reaching other researchers, but the information ends up
    being "disseminated in a manner that facilitates infringement," then the
    original circumvention of the access controls may have been illegal. Since
    there are both civil and criminal remedies available to copyright owners,
    the researcher faces serious dilemmas in deciding whether, how and when to
    publish.
    
    There are already court decisions in the United States and elsewhere
    involving both civil and criminal aspects of the publication of encryption
    research. Many prominent figures in the field have already spoken out
    against the chilling effect of legislative interference with research in
    technology. The Internet Society calls on the legislatures of the world to
    limit the damage caused by shortsighted legislative efforts, intended to
    carry out the seemingly high-minded purposes of the copyright treaties, that
    instead threaten the advancement of science and technology.
    
    About ISOC
    The Internet Society is a not-for-profit membership organization founded in
    1991 to provide leadership in the management of Internet related standards,
    educational, and policy development issues.  It has offices in Washington,
    DC and Geneva, Switzerland. Through its current initiatives in support of
    education and training, Internet standards and protocol, and public policy,
    ISOC has played a critical role in ensuring that the Internet has developed
    in a stable and open manner.  It is the organizational home of the Internet
    Engineering Task Force (IETF), the Internet Architecture Board (IAB), the
    Internet Engineering Steering Group (IESG) and other Internet-related
    bodies.
    
    For over 10 years ISOC has run international network training programs for
    developing countries which have played a vital role in setting up the
    Internet connections and networks in virtually every country that has
    connected to the Internet during this time, while at the same time working
    to protect the Internet's stability.  ISOC is taking the next step in this
    evolution with the recent announcement of its intent to bid for the .ORG
    registry based on the belief that a thriving non-commercial presence is a
    key element in developing a strong social and technical infrastructure in
    all nations.  For additional information see http://www.ISOC.org.
    
    
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