Enough is enough

First, I would like to say thank you to Ryan and Keith for chiming in and offering advice, consultation, and most of all, understanding about my minor life issue. Thanks guys, I really appreciate it.

Now then, on to the ranting... bitch.

As some of you may know, the Digital Millenium Copyright Act of 1998 is a real... pet peeve(?) of mine... I guess that would be a nice way to say it. Or, I could just say I think it's the worst fucking piece of tripe to ever be passed through congress since the damnable Jim Crow laws of the late 1800's. (I'm not counting Prohibition, because at least the government was smart enough to repeal that one when they saw everyone violating it.) Now, the original intent of the DMCA, that of protecting the copyrights of the owner, isn't evil at all. I have a few things copyrighted, and I would like to keep them that way, or at least get accredited for the originals, etc. (One of the copyrighted pieces I have written is published in it's entirety below.) However, what the DMCA has become is the equivelant of a certain radioactive Japanese lizard. It's big, clumsy, destructive, and likes to destroy monsters from Planet 0. If you would care to read a paper I wrote about it for my English class, it is published below in it's entirety, and you will see that three out of four of my above claims are true. Try and guess which ones, I think you'll be pleasantly surprised.

The following is the copyrighted work of Nathaniel Aaron Bellon, 2003. No part of it may be reproduced for any commercial purposes without prior consent. Educational and Institutional use is encouraged.

The DMCA and Friends: Extreme Justice
       Little Megan Dickinson, of Seattle, Washington, didn't know exactly what was happening. Megan liked to download music, and she had about 1,100 songs located on the hard drive of her computer, and enjoyed listening to them. That is, until the Recording Industry Association of America, hereafter referred to as the RIAA, located her, and served her with a lawsuit, demanding that they either pay a $3,500 settlement, or go to court and possibly pay a price of $750 a song, to the tune of $825,000. According to a local TV station, Komo News, “Megan... doesn't understand all the legal issues or what's at stake. She's 15 -- all she knows is she downloaded some music, and never had any idea it could cause so much trouble. “ (Furia) This sort of legal action is happening all around the country, with the RIAA having filed 382 lawsuits in the span of two months, and sending out 398 lawsuit notification letters, adding on to previous cases that have been files since the end of 2002. According to the Seattle Post-Intelligencer, a newspaper in Seattle, Washington, the RIAA has even filed several suits against people who do not own computers, including Ernest Brenot, a 79 year-old retiree who lives in Ridgefield, Washington. Mr. Brenot “wrote in a handwritten note to a federal judge that he does not own a computer nor can he operate one. Brenot was accused of illegally offering for download 774 songs by artists including Vanilla Ice, U2, Creed, Linkin Park and Guns N' Roses.” (Bridis) The apparent message is “copyright violators beware.” (slashdot)
       Almost everyone has done it, though. Nearly everyone has violated copyright law at one point or another. It is as easy as copying a movie from the video store, taping a CD that was
borrowed from a friend, or even, according to the RIAA, the most egregious of all, downloading music off the Internet. Few have ever thought of the ramifications of their actions. Now, however, thanks to the Digital Millennium Copyright Act of 1998, hereafter referred to as the DMCA, those who violate copyright are considered a criminal, and if the punishment for said violation is any indication, they are criminals most foul.
       The DMCA, passed on the twenty-seventh of January, 1998 by the United States Congress, appears, at first glance, to be a rather boring piece of legislation. The Act was drafted, and passed, to protect the owners of copyrights against the infringement that occurs on a daily basis. It is a fairly short bill, being only 50 pages in length, but it documents quite a bit of new ground, including the implementation of the World Intellectual Property Organization Treaty, a section on Online Copyright Infringement and liability, and a few miscellaneous extras, including a protection placed on boat hull designs. It seems like a fairly innocuous bit of law, until the Act is disassembled and the truth about the World Intellectual Property Organization Treaty, hereafter referred to as WIPO, shines forth in all of its Orwellian glory.
       The WIPO Treaty documents exactly what copyright violation is in the digital age, i.e. the circumvention of copyright protection systems. Many copyright systems are detailed in the bill, some being as simple as a four-line colorstripe system that adds a few lines in the reception of a TV or movie broadcast, and some being as technically complex as a 128-bit encryption method that uses highly complex algorithms to encrypt and decrypt information. The Act goes to great pains to document each copyright system and its technical boundaries. While all of this information is very useful, it is the next eleven or twelve pages that really bring the trebuchet of law to bear, and of course, it’s the violation portion.
       As detailed in the DMCA, Section 103, subsection 1201, to circumvent a technological copyright system means to “descramble a scrambled work, to decrypt an encrypted work or otherwise avoid, bypass, remove, deactivate, or impair a technological measure” without the authority of the copyright owner.” (Digital) Ergo, if someone were to tape Monday Night Football, and bring it to a friends house for display during a football party, they would technically be in violation of the DMCA, even though the Fair-Use law contradicts this with a legal precedent commonly known as the Betamax case. In this case, “the Supreme court determined that the home videotaping of a television broadcast was fair use.” (Stanford) This, however, does not address the issue of copyright circumvention, which could be the assumed job of a video recorder, bypassing the colorstripes or static bursts that are included in the DMCA as a form of broadcast copyright protection. It will be interesting to see if a case with such a circumstance goes to court. Of course, provisions are thrown in for government officials, such as law enforcement and the intelligence community, and for educational institutions and archives, but none of the exemptions really offer any substantive difference from the initial statement of the bill. A violation is still a violation, no matter who did it, and they will be punished to the full extent of the law, and the punishments for violating the above subsection of the DMCA are harsh, to say the least.
       Even some computer security devices are considered copyright circumvention tools, according to the DMCA, such as firewalls. A firewall is a piece of software, or sometimes even a piece of hardware, that controls traffic on a network. It's job is to keep the computers on the network, and the network infrastructure as a whole, safe from malicious deeds, such as hacking and cracking. It does this by filtering a complex series of packets, or computer information bits, and only allowing certain packets through. However, an increasing number of software designers are using packet based communications to verify the Serial number, which is a unique number assigned to every piece of software by it's creator. If the firewall is setup improperly, or properly, depending on the intent, it can block this packet traffic that the software manufacturer uses to track registered users of it's program, and thus allow software pirates to use it with impunity.
       Dmitry Sklyarov, a computer programmer was arrested, at the urging of Adobe Software, for publishing a paper detailing a how to break the exceptionally rudimentary cryptographic lock on Adobe's eBook. Skylarov spent 14 days in jail before he was bailed by a group formed to fight his case. Legal action is still being levied against Dmitry, who noted that Adobe's new cryptographic routine was nothing other than ROT-13. The child-like encryption technique of ROT-13 involves simply rotating the English alphabet by 13 places, ergo the letter B becomes the letter O, and so on. Had Dmitry not pointed this fatal security flaw out, Adobe may have been faced with many enraged customers, who, after having their computers security endangered, may have filed suit against Adobe. Instead, Adobe chose to file suit against Skylarov. (Anti)
       However, it's not just pirating music and software that is being taken to task by the DMCA. Free speech uses of copyright materials are also being attacked by the copyright holder. Fatwallet.com, an online coupon and discount bulletin board, had legal action filed against it by 5 national retailers, stating that the inclusion of their sale prices for the Thanksgiving week of 2003 was a violation of their respective copyrights. Best Buy, one of the principal companies involved in the legal action, filed a subpoena against Fatwallet.com, demanding the identity of the poster whom had posted the sale information. Due to the fact that the subpoena was improperly served and was full of legal errors, Fatwallet.com was not forced to comply. However, the legal department of Fatwallet.com has filed a lawsuit “in the United States District Court for the Northern District of Illinois seeking a declaration that these demands constitute an abuse of the DMCA and violate the First Amendment rights of both FatWallet and its users (FatWallet, Inc. v. Best Buy Enterprise Services, Inc., et al., Case No. 03C50508).” (Fatwallet)
       The DMCA also contains a section that essentially charges a hefty fee for webcasting copyrighted material. Webcasting is the popular name for broadcasting music across the Internet, using a variety of technical tools. Most webcasters, it should be noted, are educational institutions, such as a school-funded radio station. For many schools, the broadcasting budget is rather tight, preventing them from purchasing tall radio towers or signal generators. This usually limits many college radios stations to a 12 mile broadcast radius. With webcasting, however, students and supporters that are out of the 12 mile earth-curvature effect are able to hear the college's broadcasts. However, now the DMCA requires that all webcasting entities that play any sort of copyrighted material pay a licensing fee to each of the holders of copyright. That means if the station chooses to play albums that are owned by BMI, EMI and Time-Warner, they are forced to pay three separate fees to the different companies.
       If someone is caught in violation of the DMCA, Section 103, they may be prosecuted in a civil trail or a criminal trial. The civil trails, as it may seem, are much “friendlier” than the criminal trails are. Of course, both are still extreme. For violating copyright in a civil trail, each act of violation can be fined for “not less than $200 or more than $2,500.”(Digital) This means if an imaginary subject by the name of Bill has 3,000 mp3 files, a digital music file used by online file-sharers, Bill could be fined as little as $600,000 or as much as $7,500,000, and this is all before a secondary set of statutory damages are added on. If it pleases the individual or association who is pressing the charges, they can add on another set of damages “not less than $2,500 or more than $25,000,” for each violation. Using the same example of Bill, he would owe as little as $8,100,000 or as much as $82,500,000. That is a large amount of money for a series of violations that could take only days to commit, and that’s only the civil case.
       Criminal cases are defined by the use of the copyrighted material. If the copyrighted material in question is used in any way to that involved the exchange of money for the copyrighted goods, or services that can be rendered by the copyright goods, such as sound-recording software being used to record a band, then the DMCA allows for this case to be files in criminal court. There the penalties are much harsher and more demanding than in the civil case, and do included incarceration, if the prosecuting party so wishes to push for it. The penalties state that a violator “shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense, and shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.” Thusly, if Jill were to sell 50 copied CDs to her friends made from copyright music, or from copyright protected music files, she could be fined up to $49,500,000 and could go to jail for up to 495 years. This punishment is for a mere 50 violations of copyright, and not the 3,000 that was detailed earlier, in the example for the civil case. This means that if Jill were convicted of murder in the first degree in Pennsylvania, she would only serve a life sentence in prison, which is generally 80 years, and which decreases with good-behavior parole. The premeditated snuffing of a life actually can hold a smaller sentence than the violation of copyright. There is something desperately wrong with that statement.
       Due to the way in which the DMCA attempts to limit the rights of the consumer, numerous people have spoken out against it. One of the more compelling arguments is that the DMCA violates multiple rights afforded to us by the Bill of Rights, the first ten amendments to the Constitution of the United States of America. The First Amendment states that the government will not limit religion, the right to assembly, petition the government about grievances, “or abridging the freedom of speech, or of the press.” (U.S.) Many believe that these rights could be easily infringed, and are currently being infringed, by corporations abusing the DMCA. Especially notable are the cases of Fatwallet.com and Dmitry Sklyarov, mentioned earlier in this paper.
       Almost all of the penalties also seem to violate the 8th Amendment. The 8th Amendment states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S.) This may be one of the reasons that the RIAA and the Motion Picture Association of America (MPAA) are so quick to settle out of court, wielding lawsuits who's fines usually rocket above the $500,000 mark against private citizens. And while many may think that $49,500,000 may seem excessive for 50 counts of copyright violation, the Supreme Court has not ruled it excessive, and therefore, it is not considered so yet. All this stands on the shoulders of a law called the No Electronic Theft (NET) Act of 1997, which makes any form of online copyright violation a federal felony, with it's own punishments of up to $250,000 and 3 years in jail.
       All of these laws, but especially the DMCA, seem to have several main points in mind, and the main is the overt control of the copyright holder over the consumer. Copyright holders can flex their legal muscle, and keep consumers in line by forcing them to purchase specific VCRs and DVD players, i.e. those that conform to the DMCA's copyright protection methods, or by disallowing them to perform the music sharing that has been alive and well since the invention of the tape recorder, which allows the music labels to get a wonderfully effective, unpaid advertising service.
       However, while the largest of companies, those being the music industry, the recording industry and the software industry, are allowed to hire as many lobbyists as they please, and pay their way into legislation that benefits them with power, the American consumer will continue being a victim of horrible rights violations, performed by the companies who they support, and convinced that it is for “their own good.”


“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country.... corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the
Republic is destroyed."
--U.S. President Abraham Lincoln, Nov. 21, 1864 (Anti)


Sources Cited and Referenced:
Anti-DMCA explains Dmitry Sklyarov and the DMCA Anti-DMCA.org 1 December 2003
Link

Bridis, Ted. Recording Industry targets even computer-less. Seattle Post-Intelligencer Seattle, Washington. 3 December 2003.
Link

Digital Millennium Copyright Act of 1998. H.R.2281 12 November 2003
Link

Fatwallet files lawsuit challenging both retailers demands for removal of Thanksgiving Sales
Price web postings and subpoena seeking posters identities. Fatwallet.com. 26
November 2003.
Link

Furia, Joe. Local Teen Singing The Blues After Being Sued For Downloading Music. Komo
1000 News. Seattle, Washington. 17 November 2003.
Link

Music/Your Rights Online, Slashdot.org 3 December 2003
Link

Stanford University Libraries. Fair Use Law. 1 December 2003
Link

U.S. Constitution: Bill of Rights. Findlaw.com 1 December 2003
Link


Now what prompted me, you may ask, to post this paper of mine online? Well, first off, I think it's a damn good paper, and it really opens the issue to people who are not familiar with the DMCA. (If you're really interested, read the legislation itself. It's like reading a Dental Health manual without all the pretty pictures, and it smells worse.) Secondly, it's because my taste for legislative blood has been refreshed by the actions of Senator Orrin Hatch. He's introduced a bill that will destroy our rights to ever record anything ever again, among other things. One of it's seeming thrusts is to reverse the Betamax decision that currently stands under fair-use law (read my paper for a full description of the Betamax case). This is yet another threat to our liberties, although, granted, not nearly the threat that The Patriot Act (HR3162) poses to our society, and freedoms. Peering down that road, you may be interested to read the Electronic Freedom Foundation's fairly thorough and concise Analysis of the Patriot Act as it effects online activities. It's excellent, but I digress.

So, what I'm advocating, is the biting of my stanky, funk-laden scrot by these fat, arrogant, money-bloated nozzle-suckers that we have in the legislature, always keeping with the hyperbole of "keeping us safe," by essentially handcuffing our ability to do anything, and putting us in jail for any reason that they see fit. Thank God political speech is still free, although I'm sure they'd like to rid us of that too... Can anyone say Patriot Act II?

Am I the only one thats outraged by this kind of shit, or do I just have an exceedingly large... mouth? Everyone needs to speak up if we're going to tell the government to go stick it, because they're big and bad, but we can get things to change, it's just going to take a lot of us. Fuck it... let's get drunk and watch the world go to hell. Either way, for me, thank you.

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.