The Digital Millennium Copyright Act

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					The Digital Millennium
    Copyright Act

    David S. Touretzky
Computer Science Department
 Carnegie Mellon University
      November, 2001
                              1
 Digital Millennium Copyright Act

• Enacted in 1998.

• Added new copyright regulations
  (Title 17, US Code) concerning:
  – access controls/digital rights management
  – liability limitations for ISPs
  – broadcasting music on Internet radio stations

                                                    2
  Anti-Circumvention Provision
• 17 USC 1201(a)(1)(A): No person shall
  circumvent a technological measure that
  effectively controls access to a work
  protected under this title.

  – Can’t watch encrypted DVDs at home using an
    unapproved (open-source) DVD player.
  – Can’t decrypt your lawfully purchased eBook.
                                                   3
    Anti-Trafficking Provision
• 17 USC 1201(a)(2): No person shall
  manufacture, import, offer to the public,
  provide, or otherwise traffic in any
  technology, product service, device,
  component, or part thereof that
  – (A) is primarily designed or produced for the
    purpose of circumventing a technological
    measure that effectively controls access to a work
    protected under this title;
                                                   4
– (B) has only limited commercially significant
  purpose or use other than to circumvent...

– (C) is marketed by that person … for use in
  circumventing a technological measure that
  effectively controls access to a work protected
  under this title.

   • You can sell digital signal processors, but you can’t
     sell cable TV descramblers.


                                                             5
    Anti-Trafficking: Copying
• 17 USC 1201(b)(1): No person shall
  manufacture, import, offer to the public,
  provide, or otherwise traffic in any
  technology, product, service, device,
  component, or part thereof that
  – (A) is primarily designed or produced for the
    purpose of circumventing protection afforded by
    a technological measure that effectively protects a
    right of a copyright owner under this title ...
                                                    6
            Escape Clause 1
• 17 USC 1201(c)(1): Nothing in this section
  shall affect rights, remedies, limitations, or
  defenses to copyright infringement,
  including fair use, under this title.

  – 1201 isn’t about copyright infringement.
  – But if A circumvents, B can make fair use of
    the fruits of A’s crime.
                                                   7
            Escape Clause 2
• 17 USC 1201(c)(4): Nothing in this section
  shall enlarge or diminish any rights of free
  speech or the press for activities using
  consumer electronics, telecommunications,
  or computing products.

  – Dismissed as “precatory language” (pleading)
    by 2nd Circuit Court of Appeals.
                                                   8
    Exemptions to Anti-Circumvention

•   1201(d) - Libraries
•   1201(e) - Law enforcement
•   1201(f) - Reverse engineering of software
•   1201(g) - Encryption research
•   1201(h) - Protect minors from the Internet
•   1201(i) - Protect personally identifying info
•   1201(j) - Security testing
                                                    9
          Library Exemption
• 1201(d)(1) says libraries, archives, and
  educational institutions may circumvent
  access controls…

      to gain access to a work…

        to decide whether to purchase it.

                    But...                   10
     The Librarians’ Catch-22
• 1201(d)(4) says the exemption in (d)(1)
  cannot be used as a defense to a claim under
  the anti-trafficking provisions, and...
• Libraries may not manufacture, import, etc.,
  any technology, product, service, etc.,
  which circumvents a technological measure.
• So how can they acquire the tools to
  circumvent under (d)(1)?
                                             11
        Reverse Engineering
• 1201(f) - allows circumvention of access
  controls to permit reverse engineering of
  software programs to achieve
  interoperability with other programs.
• Doesn’t apply to hardware, such as DVD
  players and media.
• “Interoperability” does not mean bypassing
  another program’s access/copying controls.
                                           12
        Encryption Research
• 1201(g) - cracking permissible when:
  – lawfully obtained copy of the encrypted work
  – good faith effort to obtain permission to crack
  – no copyright infringement or computer abuse
  – information gained is disseminated in a manner
    calculated to advance state of knowledge
  – cracker has respectable credentials
  – copyright owner notified of results
                                                  13
  Librarian of Congress Reports
• Special cases designated by the Librarian of
  Congress as exempt from 1201(a)(1)(A):
  – 1. Encrypted list of blocked sites used by
    censorware programs such as CyberPatrol
  – 2. “Broken” access control mechanisms.
• But 1201(a)(2) still applies, so providing the
  tools to make use of these exemptions is
  still illegal!
                                                 14
           Part II

Why Is Code Protected Speech?



                                15
             Is Code Speech?
• Bernstein v. U.S. Dept. of State
        – Snuffle encryption algorithm (a “munition”) is speech
        – “functional aspect”; maybe object code isn’t speech

• Junger v. Daley
        – cryptography textbook with code also provided on diskette

• DVD-CCA v. Bunner et al.
        – California DVD case: 1st Amdt. trumps trade secret law

• Universal City Studios v. Reimerdes
        – 2600 DVD case: even object code is speech
                                                                   16
   What’s Special About Code?
• Bomb-making instructions are not a bomb.
• The recipe for LSD is not a drug.
• A drawing of a gun is not a weapon.
  – All are fully protected speech.

• But a copy or listing of a computer program
  is a computer program.
  – Why should that make code less protected?
                                                17
 “Code is Dangerous” Argument
• Software has a functional aspect:
  – Software can instantly instruct computers to do
    antisocial things.

• This makes software more dangerous than
  other types of speech that only instruct
  slow, lazy humans.

                                                  18
    But Code Isn’t Dangerous
• Computer programs don’t do anything.
  – They are merely expressions of ideas.

• DeCSS does not pirate DVD movies.
  – A person must insert the DVD into a drive,
    load DeCSS onto a digital computer, and run it.

• Where have we seen this argument before?
                                                  19
Guns Don’t Kill People:

      People Do



                          20
    Treat Software Like Guns?
• Restrictions on possession of guns and
  controlled substances are constitutional.
  – Doesn’t interfere with the expression of ideas.

• Can we restrict publication of software
  without restricting the expression of ideas?


                                                      21
  The “No Ideas Here” Strategy
• Claim: some programs are purely
  functional and do not express ideas.
  – Is object code purely functional?
  – Is css_descramble.c purely functional
    because it relies on long boring tables of
    numbers?
  – Only code published in textbooks or journal
    articles expresses ideas?

                                                  22
   Ideas That Code Can Express
• “X” is possible: here’s an existence proof.

• My way of doing “X” is better than the
  other guy’s way.
   – Runs faster / Less memory / Shorter code

• “X” is trivial.
   – Winstein & Horowitz’ qrpff.pl is 472 bytes!
                                                   23
               DVD Decryption in Perl
#!/usr/bin/perl
# 472-byte qrpff, Keith Winstein and Marc Horowitz <sipb-iap-dvd@mit.edu>
# MPEG 2 PS VOB file -> descrambled output on stdout.
# usage: perl -I <k1>:<k2>:<k3>:<k4>:<k5> qrpff
# where k1..k5 are the title key bytes in least to most-significant order

s''$/=\2048;while(<>){G=29;R=142;if((@a=unqT="C*",_)[20]&48){D=89;_=unqb24,qT,@
b=map{ord qB8,unqb8,qT,_^$a[--D]}@INC;s/...$/1$&/;Q=unqV,qb25,_;H=73;O=$b[4]<<9
|256|$b[3];Q=Q>>8^(P=(E=255)&(Q>>12^Q>>4^Q/8^Q))<<17,O=O>>8^(E&(F=(S=O>>14&7^O)
^S*8^S<<6))<<9,_=(map{U=_%16orE^=R^=110&(S=(unqT,"\xb\ntd\xbz\x14d")[_/16%8]);E
^=(72,@z=(64,72,G^=12*(U-2?0:S&17)),H^=_%64?12:0,@z)[_%8]}(16..271))[_]^((D>>=8
)+=P+(~F&E))for@a[128..$#a]}print+qT,@a}';s/[D-HO-U_]/\$$&/g;s/q/pack+/g;eval



                 It is Illegal to Display This Slide
                                                                            24
     “Imminent Peril” Strategy
• Courts now accept that code is speech.
• But speech that poses a specific and
  imminent threat of harm is not protected.
  – “Let’s kill all the lawyers” is protected.
  – “Kill that lawyer with this gun now” is not.
• Could publishing computer code meet this
  test? “Computers make crime too easy.”

                                                   25
       WARNING:
       You are only
   one mouse click away
     from destroying
the motion picture industry!

     Click here to continue...

                                 26
      Counting Mouse Clicks
• Judge Kaplan enjoined 2600 from
  distributing the DeCSS source.
  – 2600 responded by posting links to mirror sites.
• Judge Kaplan enjoined 2600 from linking to
  mirror sites: only a mouse click away.
  – So 2600 published the URLs as plaintext.
• 2nd Circuit: now it takes four mouse clicks.
  – How many mouse clicks are enough?
                                                   27
        When Does Code Not
      Pose an Imminent Danger?
•   Executable binary -- extremely dangerous!
•   Compilable source -- very dangerous.
•   Screen dump (a “picture” of the code)?
•   Code printed on a t-shirt?
•   Algorithm expressed in a formal language
    for which there is no compiler?
    – So it’s not really “code”?
                                                28
 When Is Code Not Dangerous?
• Algorithm translated line-by-line into
  machine-generated English?
  – Poses threat of reverse-translation.
• Algorithm expressed in colloquial English?
  – Professor Felten, call your lawyer.
• Impure thoughts about an algorithm?
  – 1201(a)(1) says thou shalt not “manufacture”!

                                                    29
     Where to Draw the Line?
• Conservative: only ban binaries and
  compilable/interpretable source.
  – Too easy to work around.

• Liberal: ban anything that can potentially
  be turned into executable code.
  – First Amendment doesn’t permit this.

                                               30
               Conclusions
• Restricting only the publication of
  imminently dangerous “code” will prove
  unworkable in practice.
  – Counting mouse clicks is silly.
  – Code can take many forms.
  – Computers will soon understand English.

• Truly effective restrictions require the
  censorship of “dangerous ideas.”            31
The Censorship of Ideas

     Is Intolerable



                          32

				
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