stories filed under: "anti-circumvention"

Rep. Goodlatte Slips Secret Change Into Phone Unlocking Bill That Opens The DMCA Up For Wider Abuse

from the a-big-mistake dept

Tue, Feb 25th 2014 5:16am — Mike Masnick

As you may recall, there's been a ridiculous (on many levels) fight concerning the legality of "unlocking" mobile phones. Let's go through the history first. Because of section 1201 of the DMCA, the "anti-circumvention" provision, companies have been abusing copyright law to block all sorts of actions that are totally unrelated to copyright. That's because 1201 makes it illegal to circumvent basically any "technological protection measures." The intent of the copyright maximalists was to use this section to stop people from breaking DRM. However, other companies soon distorted the language to argue that it could be used to block certain actions totally unrelated to copyright law -- such as unlocking garage doors, ink jet cartridges, gaming accessories... and phones. There have been court cases about a number of these issues, with (thankfully) many courts ruling against this kind of abuse, though it still happens.

Separately, every three years, the Librarian of Congress gets to announce "exemptions" to section 1201 where it feels that things are being locked up that shouldn't be. Back in 2006, one of these exemptions involved mobile phone unlocking. Every three years this exemption was modified a bit, but in 2012, for unexplained reasons, the Librarian of Congress dropped that exemption entirely, meaning that starting in late January of 2013, it was possible to interpret the DMCA to mean that phone unlocking was illegal. In response to this there was a major White House petition -- which got over 100,000 signatures, leading the White House to announce (just weeks later) that it thought unlocking should be legal -- though, oddly, it seemed to place the issue with the FCC to fix, rather than recognizing the problem was with current copyright law.

Following this, a slew of new bills were introduced in Congress, many of which attempted to narrowly deal with the specific issue, while leaving the larger issues untouched. Many of these bills were incredibly problematic, though eventually the consensus seemed to get behind one bill before... nothing. Fast forward a year and nothing has changed, though the main bill, supported by Rep. Goodlatte, called the Unlocking Consumer Choice Act, is scheduled to go to a vote on Tuesday. It had gone through the basic markup process and some adjustments had been made to make it a good first step towards fixing problems.

As of last week, a bunch of folks, who were concerned about the issues with unlocking and how Section 1201 was a problem, were supportive of this bill and were expecting to publicly speak out in favor of getting the bill passed. Except... late last week, with no explanation whatsoever, and no consultation with others even though the markup and Judiciary Committee process had already concluded, Rep. Goodlatte slipped into the bill a little poison pill/favor to big phone companies, adding a seemingly innocuous statement as section (c)(2):

No Bulk Unlocking--Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law.

While this gives Goodlatte and other maximalists some sort of plausible deniability that this bill is making no statement one way or the other on bulk unlocking, it certainly very strongly implies that Congress believes bulk unlocking is, in fact, still illegal. And that's massively problematic on any number of levels, in part suggesting that the unlocker's motives in unlocking has an impact on the determination under Section 1201 as to whether or not it's legal. And that's an entirely subjective distinction when a bill seems to assume motives, which makes an already problematic Section 1201 much more problematic. Without that clause, this seemed like a bill that was making it clear that you can't use the DMCA to interfere with an issue that is clearly unrelated to copyright, such as phone unlocking. But with this clause, it suggests that perhaps the DMCA's anti-circumvention clause can be used for entirely non-copyright issues if someone doesn't like the "motive" behind the unlocker.

Given that, both Public Knowledge and EFF have pulled their support for the bill. As Public Knowledge noted:

"The new language specifically excluding bulk unlocking could indicate that the drafters believe that phone unlocking has something to do with copyright law. This is not a position we support. Even if Congress believes that bulk unlocking is a problem, it's clear that it's not a copyright problem, just as individual unlocking is not a copyright problem. A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law."

EFF made a similar statement:

By expressly excluding [bulk unlocking], this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright; and (2) that Congress still doesn’t understand the collateral damage Section 1201 is causing. For example, bulk unlocking not only benefits consumers, it's good for the environment—unlocking allows re-use, and that means less electronic waste

Two members of Congress who have been closely associated with these issues, Reps. Zoe Lofgren and Anna Eshoo, also pulled their support of the bill late Monday as well, expressing their clear outrage at how this change was slipped in after the fact, in a letter sent to their colleagues in the House:

After this bill was marked up and reported out of committee, a new section was added to the bill without notice to or consultation with us....

They furthermore point out that it's ridiculous that Congress is not fixing the broken anti-circumvention parts of the DMCA, and could possibly be strengthening them with this sneaky change of language:

In his concurring opinion in Lexmark v. Static Control Components, Judge Merritt wrote: "We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves..." The court's holding prevented Lexmark from using dubious copyright claims and an overboard reading of 17 USC 1201--the same section the Unlocking Consumer Choice Act alters--to prevent third parties from creating competing printer ink cartridges. The issue is similar here.

Congress should work to roll back abusive practices that use copyright law to prevent owners from having control over the devices they lawfully own. What it means to "own" a device that has been purchased is what's at stake here. The new addition to the bill puts the effort to stand up for the property rights of the owners of technology devices at risk.

It is sad that the bipartisan consensus reached during mark-up in the Judiciary committee to improve the law has been destroyed by a secret decision of the majority after the bill was reported out.

Unfortunately, the bill was deemed so uncontroversial that it's been listed on the suspension calendar of the House, which is where non-controversial bills are put to ensure quick passage. That means that, not only did Goodlatte slip in a significant change to this bill that impacts the entire meaning and intent of the bill long after it went through the committee process (and without informing anyone about it), but he also got it put on the list of non-controversial bills to try to have it slip through without anyone even noticing.

Either way, it seems that even if the bill does pass, it won't do anything to fix a very broken part of the DMCA and, in fact, could make it somewhat worse. Politics as usual when it comes to anything having to do with copyright.

Filed Under: anti-circumvention, bob goodlatte, dmca, drm, unlocking

35 Comments

How The Copyright Industry Made Your Computer Less Safe

from the welcome-to-the-world-of-drm dept

Thu, Feb 6th 2014 12:01pm — Mike Masnick

I've already written one piece about Cory Doctorow's incredible column at the Guardian concerning digital rights management and anti-circumvention, in which I focused on how the combination of DRM and anti-circumvention laws allows companies to make up their own copyright laws in a way that removes the rights of the public. Those rights are fairly important, and the reason we have them encoded within our copyright laws is to make sure that copyright isn't abused to stifle speech. But, anti-circumvention laws combined with DRM allow the industry to route around that entirely.

But there's a second important point in Doctorow's piece that is equally worth highlighting, and it's that the combination of DRM and anti-circumvention laws make all of our computers less safe. For this to make sense, you need to understand that DRM is really a form of security software.

The entertainment industry calls DRM "security" software, because it makes them secure from their customers. Security is not a matter of abstract absolutes, it requires a context. You can't be "secure," generally -- you can only be secure from some risk. For example, having food makes you secure from hunger, but puts you at risk from obesity-related illness.

DRM is designed on the presumption that users don't want it, and if they could turn it off, they would. You only need DRM to stop users from doing things they're trying to do and want to do. If the thing the DRM restricts is something no one wants to do anyway, you don't need the DRM. You don't need a lock on a door that no one ever wants to open.

DRM assumes that the computer's owner is its adversary.

But, to understand security, you have to recognize that it's an ever-evolving situation. Doctorow quotes Bruce Schneier in pointing out that security is a process, not a product. Another way of thinking about it is that you're only secure until you're not -- and that point is going to come eventually. As Doctorow notes, every security system relies on people probing it and finding and reporting new vulnerabilities. That allows the process of security to keep moving forward. As vulnerabilities are found and understood, new defenses can be built and the security gets better. But anti-circumvention laws make that almost impossible with DRM, meaning that the process of making security better stops -- while the process of breaking it doesn't.

Here is where DRM and your security work at cross-purposes. The DMCA's injunction against publishing weaknesses in DRM means that its vulnerabilities remain unpatched for longer than in comparable systems that are not covered by the DMCA. That means that any system with DRM will on average be more dangerous for its users than one without DRM.

And that leads to very real vulnerabilities. The most famous, of course, is the case of the Sony rootkit. As Doctorow notes, multiple security companies were aware of the nefarious nature of that rootkit, which not only hid itself on your computer and was difficult to delete, but also opened up a massive vulnerability for malware to piggyback on -- something malware writers took advantage of. And yet, the security companies did nothing, because explaining how to remove the rootkit would violate the DMCA.

Given the post-Snowden world we live in today, people are suddenly taking computer security and privacy more seriously than they have in the past -- and that, as Doctorow notes, represents another opportunity to start rethinking the ridiculousness of anti-circumvention laws combined with DRM. Unfortunately, politicians who are way behind on this stuff still don't get it. Recent trade agreements like the TPP and ACTA continue to push anti-circumvention clauses, and require them around the globe, thereby weakening computer security.

This isn't just an issue for the "usual copyright people." This is about actually making sure the computers we use are as secure and safe as they can be. Yet, in a world with anti-circumvention provisions, that's just not possible. It's time to fix that.

Filed Under: anti-circumvention, copyright, cory doctorow, dmca, drm, security, sony rootkit

63 Comments

DRM Is The Right To Make Up Your Own Copyright Laws

from the why-anticircumvention-laws-are-a-problem dept

Thu, Feb 6th 2014 11:03am — Mike Masnick

We've written about the problems of DRM and anti-circumvention laws since basically when we started way back in 1997. Cory Doctorow has been writing about the same stuff for just about as long (or perhaps longer). And yet, just when you think everything that can be said about this stuff has been said, Doctorow comes along and writes what may be the best column describing why DRM, combined with anti-circumvention laws, is so incredibly nefarious. Read the whole thing. It's so well done, and so important, I'm actually going to write two posts about it, because there are two separate issues that deserve highlighting.

The first concerns just how the combination of DRM and anti-circumvention is effectively a way that the content industry (and many other industries since) have been able to void the limitations on copyright law. Here's the key paragraph, which follows a discussion of the Reimerdes case, which more or less said that breaking any DRM is illegal in itself, even if the circumvention is done for legal reasons. And, because of that, we've taken copyright out of the law, and put it into the DRM:

Ever since Reimerdes, it's been clear that DRM isn't the right to prevent piracy: it's the right to make up your own copyright laws. The right to invent things that people aren't allowed to do – even though the law permits it -- and to embed these prohibitions in code that is illegal to violate. Reimerdes also showed us that DRM is the right to suppress speech: the right to stop people from uttering code or keys or other expressions if there is some chance that these utterances will interfere with your made-up copyright laws.

This is an important point summarized so perfectly that it deserves to be repeated over and over again. Because any circumvention of DRM is considered illegal, even if the purpose of the circumvention itself is legal, it basically gives not just "the copyright industries" but pretty much any industry the road map to stop people from making, say, fair use of copyrighted works. Or, worse, preventing them from tinkering with products they own. It allows them to wipe out fair use and other important user rights -- by just writing into code that it's not allowed, and even though that code is easily breakable, making that code breaking itself a form of "infringement."

In short, DRM with anti-circumvention restrictions lets industries simply route around the aspects of copyright law that are designed to protect the user's rights.

And, because of that, Doctorow wonders if there's a chance go to back and revisit the Reimerdes case, and bring back freedom to the public. As we've noted in the past, fair use is not, as some would have you believe, a "limitation and exception" to copyright, but rather a definition of the public's rights, whereby copyright is a limitation on those rights. DRM with anti-circumvention actually blocks those rights. Cory further points to another milestone case involving software, Bernstein v. US, in which it was determined that software was a form of speech, and that restricting it was a First Amendment violation. Doctorow notes that Reimerdes goes against that ruling -- and he thinks that this, plus a decade plus showing the damages done to the public's rights because of the anti-circumvention provisions of the DMCA, open up a real opportunity to revisit the issue:

No court case is ever a sure thing, but I believe that there's a good chance that a judge in 2014 might answer the DMCA/free speech question very differently. In 14 years, the case for code as expressive speech has only strengthened, and the dangers of censoring code have only become more apparent.

If I was a canny entrepreneur with a high appetite for risk -- and a reasonable war-chest for litigation – I would be thinking very seriously about how to build a technology that adds legal features to a DRM-enfeebled system (say, Itunes/Netflix/Amazon video), features that all my competitors are too cowardly to contemplate. The potential market for devices that do legal things that people want to do is titanic, and a judgment that went the right way on this would eliminate a serious existential threat to computer security, which, these days, is a synonym for security itself.

We've seen entrepreneurs take on these kinds of high risk/high reward challenges before (Aereo comes to mind, though so do ones that ended up failing in court, such as ivi and Zediva), so this seems like a very real possibility. This would be an important ruling not just to free up innovation, but to bring back the rights of the public, and to stop an encroachment that began years ago, entirely at the behest of a legacy entertainment industry who was focused on using mechanisms of control to remove the freedoms of the public, solely to protect an obsolete business model.

Filed Under: anti-circumvention, bernstein, code, copyright, cory doctorow, drm, fair use, free speech, reimerdes

79 Comments

Up Is Down, Day Is Night, And Keeping Mobile Phones Locked Increases Consumer Choice?

Wireless

from the let's-try-this-again dept

Mon, Jun 24th 2013 2:53pm — Mike Masnick

A guy named Michael Moroney has taken to Roll Call, a popular publication for politicians, to argue that we don't need to allow mobile phone unlocking, as is currently being debated in Congress, after over 100,000 people signed a petition in favor of it and the White House came out supporting such unlocking rights as well. I'm not sure where Moroney got his information, but it's almost entirely factually incorrect, which is quite incredible. Derek Khanna has a very thorough point-by-point debunking, but here's a shorter look at some of Moroney's statements that really don't make any sense. After reviewing that background, along with one of the bills that has been introduced, Moroney jumps into the meat of his argument:

Despite the best of intentions, the very innovation that some members of Congress, the White House and presumably consumers who signed the petition claim they want to protect would actually be hampered by allowing consumers and third parties to unlock their cellphones. The DMCA is supposed to prevent digital piracy by making it illegal to disable digital rights management software, and it applies to the device locks that carriers put on cellphones — primarily to prevent phones they sell from being used on other carrier networks.

First off, it's not intentional that the DMCA applies to the locks on mobile phones. Basically, the phone providers recognized the law provided them with a backdoor way of locking in customers, and used it. The intention of the DMCA was to stop copyright infringement, not phone locking. That it was eventually used that way is because the authors of section 1201, the anti-circumvention provision of the DMCA, drafted it terribly, opening up lots of opportunities for tech companies -- including ink cartridge makers, garage door openers, and mobile phone makers -- to abuse the law not to stop copyright infringement, but to be anti-competitive.

When tech companies spend billions of dollars on research and development, they have to recoup those costs and make a profit to stay on the cutting edge of innovation.

One of these things has nothing to do with the other. Just because a phone maker needs to recoup its money on R&D has nothing to do with whether or not it should have the right to forbid unlocking by using a twisted interpretation of copyright law. There are lots of ways to recoup your investment, such as by selling a product at a reasonable price above what you made it for.

One of the ways they do this is by entering exclusive agreements with certain wireless carriers. AT&T, for example, dominated the smartphone market for years because of its exclusive contract to distribute Apple’s iPhone in the United States. AT&T paid Apple an exceptionally high subsidy on top of the consumer purchase prices, but the company made quite a return on its investment. In subsidizing more expensive phones, AT&T could sell more expensive data plans to its customers.

Phone subsidies are really a red herring here. Even with phone unlocking, mobile carriers can (and do!) offer phone subsidies. In the meantime, carriers like T-Mobile have already realized phone subsidies are bad, and actually mean consumers pay more in the long run. But, again, this has nothing to do with unlocking. Most subsidies are held in place via contractual agreements and early termination fees that have nothing to do with phone unlocking.

Now that cellphone manufactures and cellphone carriers have more protection for their intellectual property, they can recoup their research-and-development investment more quickly and, hence, spend more on developing new technologies in the future. It also ensures that most major carriers will continue to offer subsidized phones to their customers — increasing consumer choice.

Except, this isn't true. None of this is about "protecting intellectual property." It's about trying to keep people from switching carriers when their contracts are up. And for all his talk about "increasing consumer choice," that's simply incorrect. Being able to unlock your phone, and go to a different provider once there's no contract, clearly increases consumer choice. If someone doesn't want to buy a new phone, but wants to switch carriers, unlocking means they don't have to spend on a costly new phone, but can continue to use their existing phone.

Filed Under: 1201, anti-circumvention, contracts, copyright, dmca, early termination fees, locking, michael moroney, mobile phones

30 Comments

Debate Over Mobile Phone Unlocking Highlights Fantasy Thinking vs. Real World

(Mis)Uses of Technology

from the are-they-serious dept

Thu, Jun 6th 2013 7:31am — Mike Masnick

Today in the House Judiciary Committee, they're holding hearings concerning cell phone unlocking, focused specifically on Rep. Goodlatte's proposed bill, which actually seems to be the weakest of all the proposed bills. It doesn't offer a permanent fix. It doesn't fully tackle the problem. Actually, it barely tackles the problem, and serves only to punt the issue down the road. That is, it would "repeal" the rejection of the exemption to the DMCA for cell phone unlocking by the Librarian of Congress (if you don't recall, the whole fight is because the DMCA ridiculously makes it illegal to circumvent "technology protection measures" even if the reason has nothing to do with infringing on someone's copyright, but every three years, the Librarian of Congress gets to issue "exemptions"), but would allow the Librarian of Congress to revisit the issue at the next triennial review. It does nothing to address the actual problem, which is a ridiculous and broken anti-circumvention clause, section 1201 of the Copyright Act.

The hearing has four witnesses... and all are more or less lining up behind Goodlatte's weak bill, some for better reasons than others. A few others haven't been invited to speak, but have submitted written testimony as well. I'll cover the remarks of the four speakers going in order of "reasonable" to "ridiculous" followed by two of the interesting written submissions.

First up, is testimony from George Slover of Consumer's Union. He highlights, correctly, how important mobile phone unlocking is for consumers, and points out that it's a demonstration of "the harm the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are causing consumers." He also points out that this issue should be a reason to explore more deeply the role of the anti-circumvention provisions found in Section 1201. He does offer a qualified support for the bill, but lists out a bunch of other changes that he thinks really should be added to the bill, to further allow consumer freedom and innovation around unlocked phones to thrive. The basic rights of consumers is important, and Slover definitely highlights that.
Next up, is testimony from Steven Berry from the Competitive Carriers Association, who have also been fighting hard to allow phone unlocking. There, the message is obvious. The competitive carriers provide greater innovation in terms of business models, service plans, etc., but much of that is enabled by allowing unlocking of phones, so users can switch from big network providers to a competitive carrier, without having to buy a new phone. This testimony focuses on the importance of unlocking specifically, and doesn't touch on the bigger issue of fixing the anti-circumvention provision. It's narrowly focused.
Then we get to testimony from Mike Altschul from CTIA, which is basically the trade group for the big mobile carriers. Their argument is basically "hey, we let you unlock your phones if you ask, so there's no need for this exemption." It claims, ridiculously, that carriers need to "lock" their phones so they can provide subsidies to make phones cheaper. But that's clearly not true. Carriers that subsidize their phones also have contractual early termination fees, which solve the subsidy issue, so the claim that they need the locks to protect the subsidies makes no sense. They already have the ability to do so contractually -- and they use it. There's no need for them to rely on digital locks and a broken copyright law to further protect something they already have through contract. Furthermore, the argument that they already allow unlocking is simply not correct. They allow unlocking in certain situations, but not all, and people have run into issues such as when travelling abroad, and just wanting to put in a foreign sim card.
And, finally on the spoken testimony, we come to testimony from Steve Metalitz. Metalitz is the MPAA and RIAA's go to guy for writing the laws they like in DC. ACTA, SOPA, TPP have his fingerprints all over them, and he's the epitome of an extreme maximalist. There's nothing about greater copyright protection that he finds problematic, and he always supports expansions. I have no idea why he's a witness at this panel, since he has nothing to do with phone unlocking, and while he has advocated for the MPAA/RIAA's extreme interests during DMCA exemption reviews, he officially took "no position" on cell phone unlocking.

His testimony is basically a spirited, ridiculous, and flat-out misleading "defense" of Section 1201 and the anti-circumvention provisions of the DMCA, which he seems to credit as being the reason why we have any entertainment at all online today. He claims that 1201 is "one of the most critical provisions" and says that it, specifically, has been "critical" (he likes that word) to the entertainment industry embracing the online world. This is wrong. First, the industry was dragged kicking and screaming into the online world, not willingly. And the anti-circumvention provisions have been nearly entirely useless in protecting their works, nearly all of which are available DRM-free from unauthorized sources. On the music front, they've already ditched DRM, and others will likely follow.

Metalitz then claims that 1201 is critical to the success of cloud computing, which is also wrong and ridiculous. It's wrong because what protects cloud computing is not copyright law, but good computer security. If cloud providers are hanging their hat on a copyright infringement claim if someone breaks into their network, they're doing it wrong. It's also ridiculous, because it tries to pretend that the tech industry is supportive of section 1201, when many find it quite problematic.

After that, he points out that 1201 was such a good idea that "scores of other countries have followed." What he leaves out is that those "scores of other countries" were pressured by the US government, in large part because of international treaties that (oooh, look at that) were strongly "supported" by Metalitz. It's quite a feat to claim that other countries supported your idea when they did so under pressure from the US government, using points highlighted by the RIAA/MPAA's own representatives.

When it came to written testimony, we'll highlight two key ones. First is from the Library Copyright Alliance, which says what really needed to be said: that section 1201 of the DMCA is ridiculous, broken and in need of real reform:

Most significantly, the Section 1201 rulemaking is an exercise in legal theatre. All the parties to the rulemaking—those seeking an exemption, the rights holders, and the Copyright Office staff--acknowledge that it is unclear whether the rulemaking has any practical effect. This is because Section 1201(a)(1)(C) authorizes the Librarian of Congress to adopt exemptions to the Section 1201(a)(1)(A) prohibition on the act of circumventing a technological protection measure (TPM), but not to the Section 1201(a)(2) prohibition on the development and distribution of the technologies necessary to perform the circumvention. In other words, after receiving an exemption, a person might be legally permitted to perform the act of circumvention, but might have no lawful way of obtaining the technology necessary to perform that act.

Similarly, all the parties understand that what occurs inside the hearing room has no connection to the world outside it. In the last three rulemaking cycles, LCA has joined with other groups in seeking exemptions for educators and students to circumvent the TPMs on DVDs for the purpose of making educational uses of film clips. The rights holders know that the uses we seek will not harm their market in any way. They also know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement. This is because the technology necessary to circumvent the TPMs on DVDs is widely available on the Internet and easy to use. Nonetheless, the rights holders reflexively oppose the exemption or seek to narrow it so that it would be unusable. As a result, the discussions in the rulemaking descend into hyper-technical issues such as the quality of video necessary for effective pedagogy in different kinds of courses.

Moreover, in two rulemaking cycles, witnesses from the Motion Picture Association of America (MPAA) demonstrated how a person could camcord a film off of a high definition television. MPAA was attempting to show that a relatively high quality recording could be made without circumventing a technological protection measure. What it succeeded in proving, however, was the contradiction underlying its position. If one could obtain a high quality copy without circumvention, why use technological protection measures in the first place, and why should their circumvention be unlawful? Moreover, the MPAA was demonstrating how to camcord a film precisely at the same time it was asking Congress, state governments, and foreign legislatures to impose criminal penalties on camcording.

There's more to it, but that's a good snippet. It's a shame that this more detailed view wasn't included as a part of the actual hearing.

Similarly, we've got Derek Khanna's submission which he discussed here yesterday. Khanna's submission, alone among all of the testimony, actually delves into the details of what the actual problems are and how allowing people to actually own what they buy (what a concept!) is a good idea for consumers, for innovation and for business. It's fairly comprehensive, and again, his voice would have been quite a useful addition to the actual hearing.

Banning technologies is an extreme step by government, a truly incredible reach of Federal power, and I would petition this body to be very careful in continuing to delegate the authority of what technologies to ban to a quasi-regulatory agent when, in these and many other circumstances, there is no compelling governmental interest.

This legislation, as currently crafted, does not reflect the input of the White House, former FCC Chairman, FCC Commissioner, scholars or outside groups such as R Street and FreedomWorks. Our campaign was about actually solving this problem and restoring a free market. Minor changes to this legislation would ensure that H.R. 1123 actually solves the problem it intends to address by permanently legalizing unlocking and allowing for businesses to sell the technology to consumers. Overall, our contention is that given the enormous benefits that phone unlocking provides to the consumer, phone unlocking should be made permanently lawful for the consumer to use, industry to develop and marketers to sell.

Hopefully, Congress will recognize that punting this and pretending there's nothing wrong with section 1201 is the wrong way to go, but given the situation, it doesn't seem like those in Congress are even open to considering that issue at this time.

Filed Under: 1201, anti-circumvention, bob goodlatte, congress, copyright, digital locks, dmca, judiciary committee, mobile phone unlocking, mobile phones, steve metalitz
Companies: cca, consumers union, ctia, mpaa, riaa

If You Think You Should Actually Own Products You Bought, Now Would Be A Good Time To Call Congress

from the call-in-time dept

Tue, May 21st 2013 12:01pm — Mike Masnick

We recently wrote about a bill being introduced in Congress that would help fix the DMCA by making a very minor, but important, set of changes to the anti-circumvention clauses of the DMCA. As you may recall, Section 1201 of the law says that it's against copyright law to circumvent "technological measures" designed to prevent you from accessing something, even if the purpose of bypassing those measures is not to actually infringe on any copyright. That's why we end up with crazy situations like it being illegal to "unlock" your mobile phone. A bipartisan group of Representatives have introduced this new bill, the Unlocking Technology Act (HR 1892), which makes it clear that if you circumvent technological protection measures to do something that doesn't infringe, then that, itself, is not a violation of copyright law. This doesn't "weaken" copyrights in any way. Those who break DRM to infringe are still violating this clause. All it does is stop the absurd situation where you are found to "violate" copyright law despite not infringing on anyone's copyright.

It's difficult to think of any reason why this bill shouldn't become law.

And, of course, because of that, there's an uphill battle to get Congress to actually support it. FixTheDMCA -- the group that first put forth the petition that got the White House to agree that you should be able to unlock your mobile phones -- is now running a call-in campaign, asking people to call their Congressional representatives, to let them know that they should support the bill.

It's a pretty simple question: do you actually own the products you buy? Most people think that they do, but under the current text of Section 1201, the anti-circumvention provision of the DMCA, you don't. Here's a chance to fix that basic premise and to make it clear you own what you buy. Seems like something Congress should easily support, so now might be a good time to let them know that.

Filed Under: anti-circumvention, copyright, dmca, freedom to tinker, ownership, section 1201

152 Comments

Bill Introduced To Fix Anti-Circumvention Provision Of DMCA

from the well-needed dept

Thu, May 9th 2013 11:13am — Mike Masnick

While there was a lot of talk after the White House agreed with an awful lot of people that mobile phone unlocking should be legal, there's been little real action. Part of the problem might be that the White House suggested that this could be fixed via telecom law, when the whole issue had nothing to do with telecom law, but the broken anticircumvention provisions of the DMCA, also known as 17 USC 1201. While Congress did put forth a bunch of bills, they were all lacking, and none seemed to really tackle the underlying problem: 17 USC 1201 is completely broken. It makes circumventing a technical protection measure a form of infringement, even if the circumvention has nothing to do with actual copyright infringement. Furthermore, it makes it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof," that is primarily designed for circumventing digital locks even if the end use is not infringing.

Thankfully, Rep. Zoe Lofgren has finally introduced a real reform bill that tries to tackle this issue, along with Rep. Thomas Massie, Rep. Anna Eshoo and Rep. Jared Polis. The bill, called the Unlocking Technology Act of 2013, changes the law to make it clear: if you circumvent some sort of digital lock for a reason that has nothing to do with infringement, it would no longer be illegal. Basically, it would add the following:

It shall not be a violation of this section to circumvent a technological measure in connection with a work protected under this title if the purpose of such circumvention is to engage in a use that is not an infringement of copyright under this title.

Similarly, circumvention tools that have primarily non-infringing uses would also be legalized. It would still be illegal to do that big list of things above if the intent is to infringe, but merely creating the tools for non-infringing purposes would be legalized. Thus, tools for unlocking mobile phone, and the act of unlocking mobile phones, would be legal.

The bill also has two other key pieces. First, it makes it clear that it is not copyright infringement to switch networks and then access or load a copy of software that is stored in RAM. This seems very specific, but some operators have argued that by putting in a clause in a user agreement that forbids switching networks, those who do so could infringe by then accessing software stored in memory.

Finally, and perhaps most importantly, the bill addresses the claims that fixing the DMCA would violate trade agreements (we've heard seven different trade agreements would be violated with this simple fix of the DMCA) by telling the President that Congress says he needs to fix those agreements. Nice and simple:

The President shall take the necessary steps to secure modifications to applicable bilateral and multilateral trade agreements to which the United States is a party in order to ensure that such agreements are consistent with the amendments made by this Act.

This is actually really important. Because (just watch) copyright maximalists love to scream about how changes like this would "violate our international obligations" (while leaving out the fact that they were the ones who wrote half of those agreements in the first place). But the fact is that Congress has authority over international trade, not the executive branch. So if Congress wants, as would be the case with this bill, it can order the executive branch to change or fix any international agreements that get in the way of good law.

Filed Under: 1201, anna eshoo, anti-circumvention, circumvention, digital locks, dmca, jared polis, mobile phone unlocking, thomas massie, trade agreements, zoe lofgren

DMCA As Censorship: Chilling Effects On Research

from the make-it-stop dept

Mon, Apr 15th 2013 9:57am — Mike Masnick

Professor Ed Felten, back from his brief foray as the FTC's chief technology officer, has written a fantastic piece for Slate detailing how the DMCA is creating massive chilling effects for researchers. This should come as little surprise, seeing as Felten himself was famously threatened by the recording industry for his research (at their request in the form of a "contest") to hack their DRM. In the article, Felten relates -- as he did a few weeks ago at a conference about the DMCA at Santa Clara University -- that students in his own lab had discovered the infamous Sony Rootkit before it was revealed to the public back in 2005. But, rather than do something about it, the chilling effects set in:

We were worried about the part of the DMCA called 17 U.S.C. § 1201(a)(1), which says that “No person shall circumvent a technological measure that effectively controls access to a work protected under [copyright law].” We had to disable the rootkit to detect what it was hiding, and we had to partially disable the software to figure out what it was doing. An angry record company might call either of those steps an act of circumvention, landing us in court. Instead of talking to the public, we talked to our lawyer.

And, because of that, the dangerous rootkit lived on for a bit longer, the public blissfully unaware of the massive security holes they were introducing onto their computers, courtesy of a paranoid RIAA. While it was eventually revealed by another researcher Felten and his students sat on the info for a while (including info on another vulnerability) before eventually releasing the details. That's a clear example of the very real and very dangerous chilling effects of the DMCA. Every time we bring up this concern, maximalists insist that there is no such thing. I'm curious how they explain these examples away.

Felten notes that a bunch of researchers had actually told Congress about this problem back when the bill was first being discussed... and they were mostly ignored:

The research community saw this problem coming and repeatedly asked Congress to amend the bill that would become the DMCA, to create an effective safe harbor for research. There was a letter to Congress from 50 security researchers (including me), another from the heads of major scientific societies, and a third from the leading professional society for computer scientists. But with so much at stake in the act for so many major interests, our voice wasn’t heard. As they say in Washington, we didn’t have a seat at the table.

Congress did give us a research exemption, but it was so narrowly defined as to be all but useless. (So perhaps we did have a seat—at the kids’ table.) I’ll spare you the details, but basically, there is a 116-word section of the Act titled “Permissible Acts of Encryption Research,” and it appears to have been written without consulting any researchers. There may be someone, somewhere, who has benefited from this exemption, but it fails to protect almost all of the relevant research. It didn’t protect Alex and me, because we were investigating spyware that didn’t rely on the mathematical operations involved in encryption.

Congress should fix this, but it seems like there's not much interest in doing so these days, which is unfortunate. While Felten has revealed his situation, we'll never know how many others were similarly stifled, or (worse) how much useful research was never even started because of this kind of risk.

Filed Under: anti-circumvention, chilling effects, dmca, ed felten, research, security

143 Comments

In Which NY Times Reporter Jenna Wortham Accidentally Reveals How She Violated Both The CFAA & The DMCA

Legal Issues

from the all-in-one dept

Mon, Apr 8th 2013 10:53am — Mike Masnick

Over the past few months and weeks there's been much greater attention paid to both the CFAA and the anti-circumvention provisions of the DMCA, and how both are in need of serious reform. The attention to anti-circumvention was galvanized around the fact that unlocking your mobile phone became illegal again, after the Library of Congress allowed an exemption to expire, making many people realize that the anti-circumvention clause of the DMCA, also known as section 1201, meant that they often don't really own the products they thought they owned. The attention to CFAA reform came in response to Aaron's Swartz's untimely death, and the light it shed on the parts of the CFAA that he was charged under. Of course, many of us have been fighting back against both laws for years, but the public attention on both has been key over the past few months.

One of the key issues that critics of both laws have pointed out, repeatedly, is how they criminalize things that most people don't really think are bad or illegal. That is, they often criminalize someone (or at least make them open to huge civil awards) for the types of things plenty of people do everyday without thinking twice about it.

Given all that, it's interesting to see a NY Times reporter, Jenna Wortham, more or less admit publicly to willfully breaking both laws in an article she wrote about the rising number of people, including herself, who use other people's logins for various streaming content services. In Wortham's case, she logs in to the HBO Go internet service via a login obtained from some guy she met at a restaurant.

LAST Sunday afternoon, some friends and I were hanging out in a local bar, talking about what we’d be doing that evening. It turned out that we all had the same plan: to watch the season premiere of “Game of Thrones.” But only one person in our group had a cable television subscription to HBO, where it is shown. The rest of us had a crafty workaround.

We were each going to use HBO Go, the network’s video Web site, to stream the show online — but not our own accounts. To gain access, one friend planned to use the login of the father of a childhood friend. Another would use his mother’s account. I had the information of a guy in New Jersey that I had once met in a Mexican restaurant.

That's a violation of the anti-circumvention clause of the DMCA, as she is circumventing a technical protection measure that is designed to keep her from watching the show without paying. It's a violation of the CFAA because it means that she is knowingly accessing a protected computer without authorization (or, at least, exceeding authorized access). There may be some questions about whether or not the data she obtained exceeds $5,000 in value, but it wouldn't be that hard for a inspired US Attorney to come up with some way to count it as such. After all, they made that claim with Aaron Swartz and all he was downloading was academic papers that have little or no actual commercial value. Wortham is admitting to streaming some of the most popular (and expensive to produce) content out there.

No, no one thinks that anyone is likely to actually go after Wortham, but this story highlights why both of those laws are highly problematic and are in serious need of immediate reform. Just the fact that Wortham could find herself on the receiving end of lawsuits (both criminal and civil) over both of those laws (and considering her public admission to the key facts, she might have a difficult time pleading innocence) shows why those laws desperately need to be fixed. A quick look through Wortham's writings this year suggest that she has not written about either of these issues. While it may not directly be considered her "beat," the fact that this latest article leads to inadvertent admissions to breaking two laws -- one of which can result in $150,000 in statutory damages and the other a felony charge and potential jail time -- suggest that perhaps it should be something worth covering.

All that said, her article is actually pretty interesting, and worth reading. While it starts out talking about how people are sharing their accounts, it also notes that many of these services are really falling down on enabling easier community and sharing features among friends or the wider community of people who like the same content. I agree with all of that, though I don't think people should face penalties for breaking these two incredibly obsolete laws to explore the topic.

Filed Under: anti-circumvention, cfaa, dmca, exceeds authorized access, hbo go, jenna wortham, shared accounts, streaming

75 Comments

Groups Call On Congress To Explore Fixing DMCA's Broken Anti-Circumvention Provisions

from the about-time dept

Thu, Mar 28th 2013 4:06pm — Mike Masnick

A bunch of companies (including us) and public interest groups all came together this week to ask Congress to hold hearings to look into fixing the DMCA's anti-circumvention provisions, and to recognize that any law that says you don't actually own what you've bought is a big problem. It focuses mainly on the problems with mobile phone unlocking, but asks Congress to go further than just a duct taped fix, and to actually explore why the cell phone unlocking problem came about and to fix the real root cause: an anti-circumvention provision that prevents people from making use of products they've actually bought.

In the longer term, we believe that the widespread concern about cell phone unlocking illustrates how these parts of the DMCA can interfere with consumer rights and competition policy. This interference is not limited to the realm of mobile communications devices. Congress must take action to ensure that laws and policies are keeping up with the pace of technological change. Not addressing these questions will stunt advances in access to digital media for people with disabilities and may prevent new innovations and competitive uses for emerging devices, as uncertainties around the law and the three-year cycle creates a chilling effect for individuals, businesses, innovators and investors who may be covered by the law.

To that end, we request that as the leadership of the two committees of jurisdiction, you convene hearings this year to investigate these possible reforms to the anticircumvention provisions of the DMCA in order to begin a thorough discussion of these problems.

Actually getting Congress to care about this may take some work, but it is a key issue if the US really wants to remain competitive with other countries. Furthermore, anyone who claims that we can't fix this part of the DMCA because of international obligations is really only demonstrating why IP issues shouldn't be a part of any trade agreement.

Filed Under: 1201, anti-circumvention, congress, copyright, dmca, fix dmca

The Techdirt Greenhouse

Read the latest posts:

read all »

Techdirt Deals

Report this ad | Hide Techdirt ads

Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Older Stuff

Wednesday
15:32	Content Moderation Case Study: YouTube Doubles Down On Questionable 'graphic Content' Enforcement Before Reversing Course (2020) (9)
13:42	NASA Says 2nd Gen Starlink Satellites Will Cause Headaches For NASA, Hubble (9)
12:09	Alabama Speed Trap Town's PD Called Out On Its Bullshit By Nearby Sheriff, Limps On Without Most Of Its Officers (17)
10:45	Senator Klobuchar's Next Unconstitutional Speech Control Bill: The NUDGE Act (37)
10:40	Daily Deal: The Complete 2022 Microsoft Office Master Class Bundle (0)
09:33	Nonprofit Forced To Delete Thousands Of Court Documents Obtained With A Fee Waiver Because PACER Is Greedy And Stupid (19)
05:45	Judge And Jury Say Sarah Palin Failed To Prove 'Actual Malice' In Defamation Case Against The NY Times (41)
Tuesday
20:09	DC Comics Goes To UK High Court Over Trademark Granted To Unilever For 'Wonder Mum' (7)
15:57	Some Senators Are Freaking Out Because The White House Is Pitching Some Extremely Minor Police Reforms (26)
13:30	Techdirt Podcast Episode 311: EARN IT Is Still Bad (5)
12:08	Superbowl Ads Try To Make 5G Sexy, But Consumers Still Aren't Buying The Hype (13)
10:54	Israeli Police (Mostly) Cleared Of NSO-Related Wrongdoing While NSO Issues Legal Threats To Calcalist Over Cover-Up Claims (4)
10:49	Daily Deal: FlashBooks Business Book Summaries (1)
09:30	EARN ITs Big Knowledge 1st Amendment Problem (39)
06:08	ID.me Doesn't Have Enough Humans To Backstop Its AI, Allowed A Guy In A Bad Wig To Illegally Obtain $900,000 In Benefits (16)
Monday
20:16	YouTube's Content ID System Flags, Demonetizes Video Of Cat Purring (65)
15:43	Eleventh Circuit Smacks Georgia Sheriff Around For Posting 'Don't Trick Or Treat Here' Signs In Sex Offenders' Yards (22)
13:38	The Intersection Of Section 230, SLAPP Threats, The Streisand Effect And Sex Discrimination In Corporate Structures (10)
12:02	FCC To Take A Closer Look At Racial Discrimination In Broadband Deployment (2)
10:44	Missouri's Governor Still Insists Reporter Is A Hacker, Even As Prosecutors Decline To Press Charges (22)
10:39	Daily Deal: The 2022 Ultimate Adobe CC Training Bundle (0)
09:38	How EARN IT Could Give Abusers A Get Out Of Jail Free Card: By Making Evidence Inadmissible (21)
05:37	Law Firm Sues US Citizen And Immigration Service After It Tries To Claw Back Docs Obtained Legally Thru A FOIA Request (12)
Sunday
12:00	Funniest/Most Insightful Comments Of The Week At Techdirt (14)
Saturday
12:00	This Week In Techdirt History: February 6th - 12th (1)
Friday
19:39	Danish Court Confirms Insane 'Little Mermaid' Copyright Ruling Against Newspaper Over Cartoon (348)
16:26	Analog Books Go From Strength To Strength: Helped, Not Hindered, By The Digital World (62)
14:02	Declassified Documents Shows The CIA Is Using A 1981 Executive Order To Engage In Domestic Surveillance (12)
12:13	Can We Compare Dot-Com Bubble To Today's Web3/Blockchain Craze? (11)
10:49	Cop Trainer Encouraging Cops To Run Facial Recognition Searches On People During Traffic Stops (20)

Rep. Goodlatte Slips Secret Change Into Phone Unlocking Bill That Opens The DMCA Up For Wider Abuse

from the a-big-mistake dept

How The Copyright Industry Made Your Computer Less Safe

from the welcome-to-the-world-of-drm dept

DRM Is The Right To Make Up Your Own Copyright Laws

from the why-anticircumvention-laws-are-a-problem dept

Up Is Down, Day Is Night, And Keeping Mobile Phones Locked Increases Consumer Choice?

from the let's-try-this-again dept

Debate Over Mobile Phone Unlocking Highlights Fantasy Thinking vs. Real World

from the are-they-serious dept

If You Think You Should Actually Own Products You Bought, Now Would Be A Good Time To Call Congress

from the call-in-time dept

Bill Introduced To Fix Anti-Circumvention Provision Of DMCA

from the well-needed dept

DMCA As Censorship: Chilling Effects On Research

from the make-it-stop dept

In Which NY Times Reporter Jenna Wortham Accidentally Reveals How She Violated Both The CFAA & The DMCA

from the all-in-one dept

Groups Call On Congress To Explore Fixing DMCA's Broken Anti-Circumvention Provisions

from the about-time dept

The Techdirt Greenhouse

Wednesday

Tuesday

Monday

Sunday

Saturday

Friday

More

Tools & Services

Company

Contact

More

from the a-big-mistake dept

from the welcome-to-the-world-of-drm dept

from the why-anticircumvention-laws-are-a-problem dept

from the let's-try-this-again dept

from the are-they-serious dept

from the call-in-time dept

from the well-needed dept

from the make-it-stop dept

from the all-in-one dept

from the about-time dept

Techdirt Daily Newsletter

The Techdirt Greenhouse

Tools & Services

Company

Contact

More