Response to RJB: Clearing It Up

For those of you who may have missed it, here's a comment left by my buddy Ryan on Punish Sony Using the DMCA posting [Link].

I'm not a lawyer, but posts like yours make me wish I had some legal background. I found a logical disconnect.

Software licensing (including the GPL family) and copyrighting long predate the DMCA (1998). The LGPL, as I understand it, is little more than a copyright claim.

Why would we, the people of the United States, need the DMCA to prosecute this case? Stronger punishments? Intellectual property complications? As I see it, if copyright-restricted material is found in Sony's code, they're busted - DMCA or not.

If I'm oversimplifying or misunderstanding the issues at hand, please correct me.

Aye, yer right on some accounts, lad.

However, here's the deal. IANAL myself, but here it goes. The Copyright Law of the United States of America, Chapter 5,[Link] has a damages section where it lays out how much each infringment costs (in a "Damages" ruling) plus the profits made off of said infringement. Damages, as the document linked above states, should be not less than $750 and not more than $30,000, excepting cases where the court proves that the infringement was willfull, wherein the maximum amount of the damage award increases to $150,000.

"The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages."

Now, that all sounds like a fine deal, but the DMCA's section on criminal violation of copyright (which this is, as profit was gained in the violation of copyright) beats the hell out of this with a gigantic 4x4. [Link] Chapter 12, section 1204, deals with the criminal offenses and penalties, defined below:

"(a) IN GENERAL- Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain--

`(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

`(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense."

Now remember, the DMCA was passed to amended title 17 of the US Code to extend the reach of copyright. Which means not only are they in violation of U.S. Copyright law, they are under violation of the DMCA, a special section of copyright law dealing with technology. Thanks to Sony's screw-up, we can use the law they helped push through to tighten their grip on their copyright against them. All because they violated a simple LGPL agreement.

I won't even go into the fact that when they started releasing a "fix" for the rootkit they were in violation of the DMCA for circumventing a copyright device, or that by having auto-run disabled on your CD-ROM and placing one of the infected CDs in your computer, you would also be in violation of the DMCA for circumventing a copyright device. {Think I'm kidding? I'm not... when you get a spare minute, read the DMCA [Secondary Link], it's scary as hell.)

So, to boil it all down to a quick, edible bite, they are in violation of copyright, and as Ryan correctly pointed out, copyright is much older than the DMCA. However, the DMCA covers just this sort of copyright violation, and is, in fact, an addendum to the US Copyright Law, and as such, is highly viable for use against Sony. The best part is the irony, though. Sweet, sweet irony.

Comments or questions anyone?