NZ Judge In Dotcom Extradition Case Speaks Out Against TPP & US Copyright Extremism

from the good-for-him dept

A bunch of news reports are highlighting a story in which New Zealand District Court Judge David Harvey supposedly called the US "the enemy," and are pointing out that he's the judge overseeing the extradition case for Kim Dotcom. Upon seeing the headline, I was pretty amazed as well, figuring that might cause problems with the case, but the details show that his comments were not about the US in general, or about the Dotcom case. Rather, they were in response to the TPP negotiations that we've been following closely -- and how the TPP will take away certain rights from New Zealanders, like the ability to get around region-specific DVD players:

It is legal in New Zealand to use methods to get around these regional codes and make the DVDs watchable but Judge Harvey said the TPP would change this.

"Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited... if you do you will be a criminal - that's what will happen. Even before the 2008 amendments it wasn't criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown's] tweet from earlier on: we have met the enemy and he is [the] U.S."

His point is that the US is trying to expand copyright protectionism and curtail current rights of New Zealanders, blocking them from doing something that is currently legal and seems perfectly reasonable (getting around regional restrictions to watch legally purchased DVDs from other regions). It's a good thing that more people are seeing the problems of American extremism on copyright law, but I wonder if this will be used (as it appears to be in the press) to hit back on him for his role in the Dotcom case.

Filed Under: anti-circumvention, copyright, david harvey, dvds, new zealand, policy, region free, tpp, us
Companies: megaupload

Just Because A Banana Can Be Used To Rob A Bank, It Doesn't Mean We Ban Bananas

from the ban-ban-bananas dept

We recently wrote about the RIAA's new war against software that can be used to record or download YouTube videos. As we noted, such software has substantial non-infringing uses, but the RIAA wants to ban it anyway. Michael Weinberg has a great response, in pointing out that just because something can be used illegally, it doesn't mean we ban it:

It is possible to use a banana to rob a bank.  It is also possible to use a phone to defraud people of millions of dollars.  But we do not make possession of a banana or the use of a phone illegal.  We make bank robbery and fraud illegal.  We do not outlaw bananas and phones because bananas and phones serve any number of socially useful services.  It would be dumb to outlaw them just because someone could use them in a bad way.

That’s why the test that the Supreme Court identified in the famous Betamax case is so useful.  As long as a technology is capable of “substantial noninfringing uses” we welcome it.  Because those substantial noninfringing uses are great to have, and we cannot stop innovation just because it can sometimes be abused.

On our last post about this, someone brought up the anti-circumvention issue, noting that if the software circumvents DRM, then under the DMCA it's illegal across the board. But all this really highlights is the insanity of the anti-circumvention provision and how it makes perfectly legitimate activity "copyright infringement." Think about it: if you use this to make a perfectly legal recording of some content, then none of the rights covered by copyright law have been infringed. And yet it's still illegal solely because of the circumvention? That makes no sense. How can it be illegal if no illegal copy was actually made?

Filed Under: anti-circumvention, dmca, drm
Companies: google, riaa, youtube

Canada's Own Justice Department Worried That Digital Locks Provision Is Not Constitutional

from the open-to-challenge dept

In our post game analysis of Canada's new copyright law, we noted the surprising number of good things in there. But, still, much of the focus (quite reasonably) is on the really awful "digital locks" provision, which has many similarities to the US's anti-circumvention clause in the DMCA, and similar copycat DMCA-like provisions around the globe. There is one piece of the DMCA and the digital locks portion of the C-11 bill which has simply never made any sense to me at all: it's that circumvention of "technical protection measures" (generally, DRM) breaks the law even if the circumvention was to make a legal copy of something. It has never been explained why such a provision cannot be limited to cases where the tools are used to infringe. When you make such a broad restriction against circumvention, you lock up plenty of perfectly legal uses of content and (potentially even worse) open up an opportunity to deny people access to things in the public domain -- creating the potential for a perpetual copyright via DRM.

And now, according to some government documents that Michael Geist obtained using an access to information request, we discover that Canada's own Justice Department appears to have worried that the digital locks provision -- when not tied to actual infringement of content -- was itself unconstitutional. While the analysis actually covers an earlier version of Canada's copyright reform effort, the digital locks provisions are still quite similar, and clearly do not address the constitutional concerns the Justice Department raised.

At the very least, this certainly opens the door for a constitutional challenge to the provision. Either way, I'm curious, for the various copyright system defenders we have in the community here, if anyone can take a stab at why it makes sense to have anti-circumvention rules apply even in cases where no content is actually infringed? Some of us would really like to know...

Filed Under: anti-circumvention, c-11, canada, digital locks, dmca, drm

After Four Years Feds Finally Get Around To Prosecuting Ten Mod Chip Sellers

from the to-jailbreak-or-not-to-jailbreak dept

Over four years ago, ICE ran an investigation into mod chip sellers in the US titled "Operation Tangled Web". During this investigation, ICE agents raided 32 locations in 16 states. Very little information was released at the time regarding who was targeted and if any charges were brought up. Since then, almost no information has been released about the operation. Thankfully, an eagle eyed John Doe found a press release from April 10 that details the names of ten individuals officially indicted on charges of violating the DMCA's anti-circumvention clause. The charges are as follows:

The indictments generally charge that the defendants knowingly manufactured, imported, offered to the public, or otherwise trafficked in technology, products, services, devices, components or parts thereof, which were primarily designed to circumvent technological measures designed to effectively control access to a work copyrighted under Title 17 of the United States Code, for purposes of commercial advantage or private financial gain.

Other than this information and the list of names, there is no other publicly available information on any of the ten cases. What really makes this announcement interesting is its proximity to the US Copyright Office considering proposals that would provide a jailbreaking exemption for game consoles. If that proposal is accepted by the Copyright Office, then the actions performed by these ten individuals would be legal for others to perform for the next three years. However, it is unclear how such an exception would effect the charges brought against these individuals. It is really sad to see ten people's lives being dragged through criminal courts for performing an action that should be perfectly legal.

Filed Under: anti-circumvention, dmca, ice, mod chip, operation tangled web

Ridiculous Statutory Damages Rules Mean Judge Regretfully Awards $3.6 Million For Circumvention Of DRM

from the totally-out-of-touch-with-reality dept

Eric Goldman points us to yet another example of ridiculous statutory damages rules around copyright creating awards in court cases that have no connection to any real harm. And, this time, it involves the violation of the highly questionable (and controversial) anti-circumvention clause of the DMCA. The case involves an online game, MapleStory, and some people who set up an alternate server, UMaple, allowing users to play the game with the official game client, but without logging into the official MapleStory servers. This kind of thing happens all the time.

In this case, the people behind UMaple apparently ignored the lawsuit, leading to a default judgment. However, even there, it appears that MapleStory went too far, and the judge is clearly annoyed with them at times. Even though judges often side entirely with winners in default judgments, in this case, the judge repeatedly expresses skepticism about arguments made for determining "damages" to be awarded. Thus on most of the claims, the judge seems to look for ways to avoid giving MapleStory much, if any, money. For example, in determining profits made by UMaple, the judge repeatedly knocks MapleStory for failing to show what profits were specific to UMaple's infringement, telling it that it can't just assume all money made by UMaple belongs to MapleStory. So the judge dumps a request for $68,764.23 in profits made by UMaple down to just $398.98.

But... then we get to the anti-circumvention stuff. Here, the ridiculous statutory rates set a minimum of $200 per infringement. Multiply that by 17,938 users of UMaple... and you get $3.6 million. MapleStory, of course, asked for the statutory maximum of $44,845,000, which the court refuses to grant. In fact, the judge chides MapleStory for its request for the maximum -- even to the point of noting that the arguments by MapleStory make it "question very seriously whether Plaintiff intended to actively mislead the Court or whether these oversights were merely the result of poor legal research."

The court then notes that the minimum statutory amount -- the $3.6 million -- is already "a significant windfall to Plaintiff far in excess of any amount necessary to deter future infringing conduct," and also that the "award here likely bears little plausible relationship to Plaintiff’s actual damages." In fact, it sounds like the court would very much like to decrease the amount, but notes that "nevertheless, the court is powerless to deviate from the DMCA's statutory minimum."

As Goldman says, this is "guffaw-inducing", because the minimum award seems to have no bearing on the actual seriousness of the infringement. As he points out:

this case does provide an excellent example of the ridiculousness of anti-circumvention statutory damages. $3.4M can't be the right damages award in this case, and it's so guffaw-inducing that it further erodes the legitimacy of our copyright rules.

Indeed. And yet no one seems interested in exploring just how disconnected statutory damages are from reality.

Filed Under: anti-circumvention, damages, dmca, eric goldman, maplestory, umaple

Homemade Hardcovers: Yet Again, Anti-Circumvention Interferes With Fair Use

from the bound-by-law dept

Font blogger Thomas Phinney writes in to tell us about his concerns with the DMCA anti-circumvention clause in relation to creating home-printed versions of digital books. Phinney prints, stitches and binds his own books at home, producing fancy hardcovers for purely personal use from legally-purchased PDF ebooks. This, alone, is a clearly protected case of fair use -- even if it runs afoul of the overreaching copyright notices found in so many ebooks. The problem is that making nice, bound editions takes some extra work, and anti-circumvention laws get in the way:

Making a really high end hardcover from a document such as a PDF involves rearranging the pages (“imposition”) in order to print them in sets on sheets with more than one page per side, so that you can fold them and sew them in groups (“signatures”).

Commercial e-​​books sold as PDFs are often encrypted with flags on the PDF permit printing, but not modification. Nor do they permit “document assembly” which is exactly what I need: the ability to rearrange, add and delete pages in the PDF. Unfortunately, common approaches to doing imposition involve generating a modified PDF: one in which the pages are at least rearranged and put more than one to a (now larger) page. So far, it looks like many (perhaps all?) imposition apps do it this way and don’t work with PDFs that have restrictions on modification (perhaps on PDFs that have *any* access restrictions?).

Now, I can easily break the encryption on a PDF, if that PDF allows opening but just has restrictions on specific uses like modification. If I do that, I can then use imposition software on a PDF that allows printing but not modification, and make a fancy book.

But (at least as I understand it, and admittedly I’m not a lawyer) the Digital Millenium Copyright Act says that circumventing an access restriction is always illegal, regardless of why I do it. That makes me a criminal if I do that, even if for the sole reason of making a pretty hardcover book. Even when printing the pages out normally and slapping glue on the spine, like a typical softcover “perfect-​​bound” book, is permitted and legal.

The inherently nonsensical nature of the anti-circumvention clause strikes again: the ends are fair use, but the means are illegal. Of course, since circumvention software itself is illegal too, this raises questions about the applications that are available -- but breaking PDF protection is so trivial that the law seems futile. MacOS even ships with a system tool (ColorSync Utility) that inadvertently removes PDF passwords (an old graphic designer's trick for clients who have lost their source files). This kind of thing is inevitable when you have a law that targets the tools instead of the actual activity, since it's a near-universal truth about tools that they can all be used for both good and bad purposes.

Filed Under: anti-circumvention, book, dmca, pdf

Canada Plans To Re-Introduce Bad Copyright Plan, With Damaging Digital Locks Provisions, With No Additional Consultation

from the try-try-again dept

The US entertainment industry is nothing if not persistent in trying to pressure foreign countries into implementing ever more draconian copyright law. And in Canada, it appears that the US firms have a willing partner in the form of Heritage Minister James Moore, who has announced that, despite massive and widespread criticism of last year's (US-driven) attempt at putting in place bad changes to copyright law, the current government plans to introduce the exact same bill with no changes and no further consultation.

Mr. Moore told The Canadian Press in an interview that the Conservative government will re-introduce its copyright bill this fall, in exactly the same form as legislation that died with the last Parliament.

The measures will go back to a legislative committee for study, and Mr. Moore said groups who testified before MPs won't be asked back to comment again.

“We've taken a couple runs at it before in minority Parliaments, but we think that we have a very good formula with the old Bill C-32 and when we come forward with our legislative agenda this fall we want to pick up where we left off, which is to continue the study of the legislation,” Mr. Moore said.

I guess that's what you would think when you brush off widespread and sustained criticism as merely being from "radical extremists."

Filed Under: anti-circumvention, canada, copyright, digital locks, drm

Some Good, Some Bad In New Ruling On Whether Or Not WoW Bot Infringes Copyright

from the no-contributory-infringement dept

It's quite a week for First Sale issues in copyright (and it's only Tuesday!). We already had the Supreme Court's non-decision stalemate on the Costco/Omega case, and now we've got another of the trifecta of first sale cases in the 9th Circuit. As you may recall, that court is considering three rather important cases concerning first sale rights, with the first one (Vernor v. Autodesk) already decided such that you no longer actually own most of the software you thought you bought.

Today, the court came out with its ruling in the MDY vs. Blizzard case, which as we noted had a really troubling district court ruling. This case was controversial because it involved a bot maker that let people automate certain tasks in World of Warcraft. Many people sided with Blizzard in this case because they just hate bots and people who use them -- but I don't think they considered the larger copyright issues raised by the original ruling, which said the bot software itself, called Glider, infringed on Blizzard's copyright. If you want a thorough understanding of how tortured the court's logic was in that case, just read William Patry's summary at the time, where he notes that absolutely nothing Glider did appeared to violate Blizzard's exclusive rights as laid out in the Copyright Act, so the judge effectively made stuff up -- saying that because using the bot violates the terms of service, it makes the "copy" of WoW (even if it was legally purchased) "unauthorized," and thus infringing. Thus, according to the ruling, Glider was responsible for contributory copyright infringement.

Thankfully, the appeals court appears to have walked back most of that part of the ruling. While it tips its cap to the Vernor decision, and says that you don't own your copy of WoW, but merely license it, it says that just because the Glider software might violate the terms of service, it doesn't mean that copyright law is automatically violated. It points out that there are lots of ways you can violate a software license that have nothing, whatsoever, to do with copyright's exclusive rights, and thus, just violating a terms of service shouldn't mean you violate copyright law. Thus, using Glider does not directly infringe on Blizzard's copyright (in this instance), and therefore, there's no contributory infringement on MDY's part, because there's no direct infringement that it could contribute to:

Were we to hold otherwise, Blizzard -- or any software copyright holder -- could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player's abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player's computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.

That said, MDY still runs into trouble due to the (you guessed it) ridiculous anti-circumvention clause in the DMCA. The court finds that MDY effectively "trafficked" in circumvention tools with Glider, in getting around Blizzard's anti-bot software, called Warden. Here, the ruling gets right back to being troubling. While it discusses the Federal Circuit's ruling that said third party providers of garage door openers were not violating the DMCA by getting around anti-circumvention tools in garage opener technology, because no copyright was violated beyond the circumvention, it says it chooses to ignore that decision -- saying it doesn't believe Congress intended the DMCA to work that way. Now, it's true that this court is under no obligation to follow that ruling, it's still troubling.

There is a further discussion about exactly which parts of the DMCA are and are not violated here, which begins to get really down in the weeds, so I'll skip the discussion on that for now, but you can read the entire ruling after the jump.

Filed Under: anti-circumvention, bots, copyright, dmca, first sale, glider, world of warcraft
Companies: blizzard, mdy