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Robin Gross

Hi ! Thank you all for inviting me and thanks to the organizers in particular for also inviting me as it is a pleasure to be here. I apologize in advance for doing my presentation in English, but you have to trust me that you would not want me to try it in French. So, let’s get started. I am here to talk about the Digital Millenium Copyright Act (DMCA) in the United States. It was passed in 1998, so we have five years now basically of experience on how the enforcement of this law has taken place in the US. We found out that :
  it chills freedom of expression and scientific research ;
  restricts private copying rights ;
  prevents interoperability ;
  it impedes competition, creates monopolies ;
  it creates a chokehold on innovation.

So what are these DMCA and these anti-circumvention measures ? What it does is it outlaws the circumvention of technological restrictions that are used to protect copyrighted works. What is important in the US is that it applies to your own property even when you have a lawful right to access that property.

So if you bought a DVD and you own that DVD and you want to bypass those technological restrictions, in order to play your DVD on your computer, your operating system, whatever, it’s against the law to do that. Even on your own property. Section 1201 of the DMCA in the US does two basic things :
  it bans the act of circumvention which is the act of actually bypassing these technological restrictions ;
  it also bans, outlaws, tools - that includes software and technical information, that could help someone to circumvent these technological restrictions.

So how is the DMCA fitting in the international property laws ? WIPO, the World Intellectual Property Organisation, has a copyright treaty and a performances of phonograms treaty that deals with the circumvention of technological restrictions. In these treaties, it says that « Countries must provide adequate legal protection and effective legal remedies against the circurvemtion of technological restrictions ». So the DMCA was taughted by its authors as what the US needed to do in order to comply with its WIPO treaty obligations. But in fact, that’s not true. The DMCA went much much much further than WIPO requires of countries. For example : a ban on legitimate consumer circumvention was not required by the WIPO treaties. Banning all the tools that are necessay to engage in circumvention is not required by the WIPO treaties either. This is something you don’t hear very often but, you do not have to take my word for it, you can read it yourself in the treaty.

So, what we see now is basically this maximalist US agenda being exported overseas. The Bush administration in particular is pressing for maximal intellectual property rights to go to the giant corporations. They are not lobbying for something that the creators are actually benefiting from. There’s no moral right, for example. That is not something that the US is pushing for in its agenda.

So the "DMCA plus" measures, this is how we refer to them, because their bans are much much broader than the DMCA. They are being pushed for in international treaties and trade agreements by the Bush administration. For example, the EU copyright directive, (the national implementations of this have been going on for over a year now), includes bans on the circumvention of technological restrictions. The proposed EU IP Enforcement Directive, which you will hear more about soon, also bans circumvention.The Free Treade Area of the Americas (FTAA) Treaty, that is a treaty that is currently under negociation amongst all 34 democracies of the western hemisphere. FTAA encompasses North America, South America, the Caribeean, and Central America, except for Cuba. And this treaty is set to take effect in 2005, and it includes provisions that are even broader than the DMCA and even broader than WIPO in terms of what countries are obligated to outlaw.

So, let’s go back to the DMCA experience in the US. We talked about how it chills freedom of expression and scientific research. There was a case a couple of years ago when Princeton Professor Felten and his research team agreed to participate in the SDMI hack challenge challenge where basically the music industry said "See if you can hack this technology" (that was the technology they were working on to control digital music). Professor Felton and his team downloaded the software, they participated in the challenge, and they tested it and what they discovered was that was remarkably weak and it would be cracked upon its immediate introduction to the marketplace. And Professor Felten felt like the public has the right to know this. That the authors who had been told that "this technology is going to protect your interests" have the right to know this. Well so, they wrote a paper. The research team wrote a paper. And it was accepted for presentation at a technical conference when they got a threat letter from the RIAA under the DMCA, threatening litigation if these researchers presented this paper at this technical conference that reveals the weaknesses in their technology.

Well, it’s kind of a scary thing to get a threat from the RIAA.So, these researchers decided to pull the presentation. And it was’nt only the researchers who got the threat letter, it was also the organizers of the conference and the Universities that the researchers worked for - they were all threatened with DMCA liability if they published this paper.

So it was pulled. Then there was a tremendous public backlash against this. Scientists where really upset, the public was really upset that this scientific paper had been pulled. So a lawsuit was filed on behalf of the scientists asking the court to rule that they have the freedom of expression right to publish this paper and talk about the vulnerabilities of this technology.

Well, the RIAA was getting pretty mad at this time, they had a black eye and they decided to withdraw their lawsuit, drop their lawsuit and so that the case was dismissed. But you can see the kind of chilling effect on freedom of expression that is created by these anti-circumvention laws.

More recently, a Princeton student was threatened by a company called SunComm because he revealed that holding down the shift key would break its security. So he got a threat letter from this company under the DMCA saying that "we are going to sue you, you are hurting our ability to recoup on our investment, and so we are going to file a lawsuit against you under the DMCA." Well, after another public outcry, the company agreed to not sue the student. But again you can see the kind of chilling effect that this law is having on scientific research and technical speech.

So, what’s the result of this ? It’s chilling freedom of expression and it’s chilling the freedom of research. There are resaerchers that are afraid to publish. They are choosing alternative fields of study because they are afraid that if they reveal some of these weaknesses then themselves would get prosecuted. And what is the result of that ? Iit actually weakens the public security for key infrastructures. There are foreign scientists that are issuing statements saying that they are afraid to travel to the United States since the DMCA was passed because they have written software or may have done research which could help someone bypass technological restrictions and therefore they could find themselves in trouble for travelling to the United States. Technical conferences are moving overseas to jurisdictions where anti-circumvention laws are not yet in place. The state of Russia even issued a travel advisory warning its citizens, particularly its computer programmers about the dangers of travelling to the United States since the DMCA was passed.

Well, we have also seen that the DMCA is restricting private copying rights. The "fair use, fear dealing", typical personnal use copying rights that people enjoy are being restricted because technological restrictions are not permitting people to engage in this private copying. For example on DVDs, there is no personal use copy that is permitted whatsoever. So even though you may have a lawful right to make backups, or other educational uses, the technology prevents you from doing that and the law prevents you from bypassing the technology. So these measures have the effect of preventing and restricting your engagement in these lawful activities.

CDs are another example - "copy-restricted CDs" where you are not able to make personal use copies or play them on a computer or PCs, these kind of uses are being restricted even though you may have a right to engage in these activities.

We have also discovered that the DMCA and its anti-circumvention measures are preventing interoperability. Because in order for technological components to interact with each other, they have to bypass technological restrictions. And that is considered a circumvention. So you can’t build tools that interoperate with each other under the anti-circumvention measures. For example there was a criminal case filed in the US against a russian hacked called Dimitri Skylarov and the company that he worked for, Elcomsoft. They were building software that was interoperable with Adobe ebooks. When Dimitri came to the US to speak at a technical conference about the vulnerabilities of the Adobe system, he was on his way back to the airport to go to back to Russia when he was arrested by the FBI who had been encouraged to arrest him by Adobe. So Dimitri was charged under the DMCA and spent five weeks in jail without bail. Elcomsoft was eventually charged also. Dimitri faced 25 years in prison for writing software that helps people read books. Sounds pretty dangerous, doesn’t he ? Well it’s the law we have on the books in the US. Fortunately, the jury acquitted Elcomsoft last december and the charges were dropped against Dimitri.

Another example of the kind of interoperability that’s prevented by these anti-circumvention laws is the case Chamberlain Group v. Skylink over garage door openers. You probably wonder what does this have to do with copyright infringement ? Well, nothing, but the DMCA is very very broad and can be used to prevent competition and interoperability of technical components. Well, recently, the judge rejected this case. This case was filed in the US federal court and the judge denied the DMCA claim. The judge said that when you buy a garage door opener and you lose it you are not breaking the law by using a replacement that interoperates with this system. It sounds pretty common sense to most folks. But not for Intellectual Property Attorneys. And there is a case that’s pending with the ITC on the very same issue between these parties.

So it also seems the DMCA is creating monopolies, and Impeding competition. I will give you an example of case that’s going on right now in the US : Lexmark v. Static Control Components. These are two companies that are competitors for printer toner cartridges. Again, nothing to do with copyright. But the judge enjoined the distribution of Static Control’s replacement printer cartridges on the grounds that they are illegal circumvention devices — because the printer toner cartridges bypass some kind of technological restriction and therefore when you use an interoperable non-Lexmark toner cartdrige, or a replacement toner cartdrige, you are in violation of the DMCA.

US law professor at Columbia University, Jane Ginsburg testified in the US copyright office hearings this summer about the problem of this law. She said that auto manufacturers, for example, could use the DMCA to prevent someone from purchasing a competitor’s after-market replacement parts (such as tires). All you have to do is embed a computer chip, and you have to get the secret code to access it, so any other way of accessing it will be an illegal circumvention. So we are creating monopolies over these printer toner cartridges and garage door openers because the law and the kind of devices that it outlaws are so broad.

So the upshot of this is that we are stiffling innovation. For example, about a year ago, Sony threatened a group of computer programmers who were making customisezd programs for the "Aibo pet dog" they called it. These programmers made these programs for no profit purposes and there was no commercial or financial incentive. They did not distribute the source code - the crack - or anything. They just wanted to be able to build the voice recognition computer programs that the "pet dogs" will respond to. Well, the public pressure convinced Sony to withdraw this particular threat but only in exchange for an agreement to grant the commercial rights to the program to Sony, which was fine for these programmers ; they did not want to make a business ; they just wanted to innovate and to see what things they could do with their toys.

In another case in the US, Vivendi Universal’s Blizzard Entertainement sued a bunch of volunteer game developers. What they had done was reversed engineered a Blizzard video game and they were trying to make their own server where they could play games with each other over the internet outside of the Universal servers. Again, they were threatened under the DMCA.

So, there is some backlash in the US. People are beginning to wake up and to say, "What did we pass ? What were we thinking back in 1998 ?" And there are some efforts to repeal this law. For example, US Congressman Richard Boucher has put forth the Digital Media Consumers Rights Act. (DMCRA). What this would do ( it’s currently pending in Congress) is would permit circumvention for private copying, for example fair use. This bill would also permit circumventions for security research purposes. There is another bill that is currently pending in the US Congress. It was put forth by US congressman Zoe Lofgren from California and this bill is called the "Benefit Authors without Limiting Advancement or Net Consumer Expectations Act" the "Balance Act" for short. This bill is currently pending to amend the DMCA but it would permit circumvention only if it was necessary for non infringing use and only if the copyright owner does not enable private copying rights in some other way. So it is a little bit more limiting than the former Boucher bill.

One other point that I wanted to raise was the UN Universal Declaration of Human Rights, article 19, which guarantees freedom of expression to everyone. This is a particular law that we need to bring some attention to, that we need to start rallying behind. Most countries signed the Universal Declaration of Human Rights. Most countries have already agreed that they will not try to restrict someone’s expression. What is particularly interesting about this wording is that it says "to receive, and impart information and ideas through any media and regardless of frontiers". So I think it particularly speaks to the situation in digital technology where the copyright holders are trying to say "Well, digital is different, you should not have all the rights in the digital world that you have in the analog world." Well, not according to the Universal Declaration of Human Rights, Article 19 that most countries have signed. So I just wanted to attract some attention to this so we can start using it more.

So, what’s the conclusion here. Well... The DMCA’s unintended consequences have in fact had a greater impact than the intented consequences. The intended consequence, the intended effect was supposed to prevent infringement. That has not happened. What has happened is :
  chilling freedom of expression and scientific research ;
  restricting the private copying rights, fear use rights, fear dealing rights, personnal copying rights ;
  preventing interoperability ;
  creating monopolies ;
  and putting a choke-hold on innovation.

That’s all, thank you.

Ludovic Pénet

Thank you Robin. Any question ?

Kamel Zerouan

My first question is about the DMCA. How the DMCA manage the peer-to-peer networks like Kazaa or another one and the ADSL access ? The other one is : is there any connection between the new Apple Internet Access Music Store and the DMCA technological restrictions.

Robin Gross

Well, I didn’t quite get the second question so maybe you can repeat that for me.

Kamel Zerouan

Can you tell me the connection between DMCA technological restrictions and the new Apple Offering Internet Music Store.

Robin Gross

The iTunes ?

Kamel Zerouan

Yeah.

Robin Gross

Well, I am not an Apple user myself. So I am not terribly familiar with it but I can tell you a little bit about this. They allow people to download songs onto computers and sometimes these songs come with restrictions and sometimes they don’t. And an argument could be made that, in the US, under US law, someone who would build a tool that would help someone to engage in fair use of their Apple iTunes music - for example they got a new computer, so they need to switch from one to another, to make copies of things -, well, they could be violating the DMCA by bypassing those restrictions or by building tools that could help someone else to bypass those restrictions. So, that’s a big concern. Your other question has to do with the DMCA and peer to peer networks, yes ? The DMCA doesn’t directly address peer-to-peer but what it does do is that it creates this new supina power that grants anyone with an allegation of infringement. The right to obtain personal information about that individual. This is something that is unprecedented in US law. Before, you used to have to go to a judge and convince the judge that there is some likelihood of infringement going on before you can require the court to require someone to turn over personal information about someone. This is another example of the excesses of this overreaching intellectual property law that are impeding on civil liberties. So that’s another very troubling aspect of the DMCA. in the US. I am not familiar whether the French bill has something similar to that but, ahem...

Ian Brown

The french implementation of the EU copyright directive which we talk about doesn’t, but this new draft directive [NDR : IP Enforcement] that I am going to talk about at the end of my presentation does.

Robin Gross

All right. Any other questions ?

Philippe Aigrain

Basically, when EUCD was in preparation, AOL Time Warner had 20 lawyers working in Brussels to try to influcence what was written in it and basically everything they didn’t get in this directive, they have sneaked in the next one that Ian will talk about. Apart from the interoperability exception, I would like to make a small point, a comment on what Loïcc has said. In reality, the space is open in the transposition for a relatively strong interoperability exception if you wish to and you start with the french version. Because the french version does not say the same thing than the english version. Because the english version say you can circumvent if there is a significant commercial usage. Which is incredible ! It means : if it is not for profit, you can not. But the french version says either significant usage of commercial usage. So you could, or at least you can interprete like that. It’s possible to say that if there is a significant usage, for example a societal usage or the right of a person to access a content legitimately acquired, that could be a significant usage and that could still protect software like DeCSS. Let’s say, if the legislator decides to do so, of course.

Loïc Dachary

I very much agree with what you say. The problem and the reason why we fight against the current implementation of the EUCD is not because you could not slip through but because it is not obvious that you could slip through and lot of people would be intimidated by that. And the law, at least in the french sense, is to protect the weak againt the strong. And, apparently, it’s doing the opposite, so that’s why we fight against it.

Jean-Bernard Magescas

Who do we kill ? Who do we shoot ? We don’t want that law, whatever the implementation could be in our country. We don’t want it - that’s what you are saying. Right ? So, what do we do ?

Loïc Dachary

The problem is different in every country and its different if you want to address it at the european level. For the french, we propose an amendment that says that formats, protocols and encryption methods are not technical measures of protection. Which is true. I mean the technical measures of protection are defined as something that control the use of the work. It controls someone that is using a copyrighted work. Well, a format, by itself, obviously does not control anyone. It needs some software on top of it, but the format itself is not in control of anything. It participates into a technical measure of protection, but it is not a technical measure of protection. And the same applies to protocols and encryption methods. What we do by asking that is just stating the obvious when you word it this way. Now, if you ask a lawyer if a format, a protocol or an encryption method is a technical measure of protection, all of them - we’ve done it - all of them tell you ?Yes it is. ? When you explain it before hand, they say ?Obviously, it is not because it has no way to control the user ?. So by pointing this as an inaccuracy of the proposed implementation, we raise the concern that it could be... ?Il y a un risque d’inconstitutionnalit ?. It might be non conformant to french laws, constitution. Because since the penalty for infringing these rights are very high, the law needs to be very precise. And since apparently lawyers do not know what technical measures of protection are, we certainly need to say what they are not. So that is an amendment that, according to us, is of great importance, that opens the way to what Philippe Aigrain described : many ways to slip through and there are others but I think Ian has more to say.

Tariq Krim

Just a comment regarding the DMCA. I think there’s a new trend in the hardware business right now to put everything under GPL firmwares ? I guess everybody heard about the Xbox running under Linux and being the cheapest DVD windows media centre clone available. It happens now with the Nokia N’gage. Any company that base products that use proprietary software now can find a GPL or Open Source firmware that can be replaced and give interoperability use of the product. And I think the DMCA is some kind of benediction for all these companies that can prevent people to use their tools in a way that was not described first. Before, you could put any computer under Linux. Now, you can put your cell phone, your video game, any product under a GPL firmware.

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