[free-sklyarov] Security warning draws DMCA threat

[Seth Finkelstein]

> On Sun, 4 Aug 2002, Seth Finkelstein wrote:
>> 33. Defendants Jansson and Skala tortiously and unjustifiably
>> converted Cyber Patrol for their own use.

> On Mon, Aug 05, 2002 at 07:32:37PM -0700, Jeme A Brelin wrote:
> Tortious conversion?  That's a new one by me.

	There was also

   COUNT IV
(Interference with Advantageous Business Relations against Jansson and Skala)
30.  Defendants Jansson and Skala intentionally or recklessly interfered
with Microsystems' relationships with third party users of Cyber Patrol.

	That is, making it less likely for people to buy the product
was an offense :-).

>> 	For pure formats, I think that would fail because of the following
>> constraint:
>> 
>>         (B) a technological measure ''effectively controls access to a
>>           work'' if the measure, in the ordinary course of its operation,
>>           requires the application of information, or a process or a
>>           treatment, with the authority of the copyright owner, to gain
>>                      ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>>           access to the work.
>> 
>> 	Microsoft isn't the copyright owner of the files.
> 
> So?  That's not what the law says.
> 
> Microsoft is _A_ copyright holder for documents represented in SOME files
> held in Word format.  I think that gives them standing to bring suit
> against anyone who "circumvents" the "access control" that is the Word
> document format.

	You have to establish that a general document format is an
"access control" in the first place - that's where the constraint
applies regarding "with the authority of the copyright owner".

	I think there's some confusion in that people have an idea
that there must be a *specific* work which is *specifically*
infringed, OR anything can be charged as any connection, no matter how
tenuous, to infringement. The DMCA did change the law. It's enough to
have a general proposition. That is, the requirement is *abstract*.
One doesn't have to demonstrate any particular copyright is violated,
just the violation of the DMCA's general propositions about the control
of copyright holders. This is why Sklyarov was charged. But I don't
see how a general file format fits, as something that relies on "the
authority of the copyright owner", as a general proposition.

	I'm trying to be realistic here, in both directions (that is,
what's likely-to-succeed, and what *isn't* likely-to-succeed). There's
really two different aspects here that I'm trying to disentangle. One
is the chilling effect of any legal threat itself, the kitchen-sink
charges. These are the charges that companies make just because-they-can.
They don't really expect them to hold up in court. The charges are in
the threat letters just to scare and intimidate the target, and to
inflict harm by causing the target legal expense to defend against
them. This isn't new with the DMCA. It goes on all the time, e.g. the
above "conversion" and "interference" charges in the CyberPatrol case.

	The other aspect is what's likely to stand up in court. For
example, Felten, as a possibility, if the RIAA had pursued it. This is
qualitatively different, in that the goal is using the law _per se_,
not the attrition process of a lawsuit (of course, these two aren't
exclusive, but I think it's a useful division).

	Basically, I think there's some situations where the law has
changed *profoundly*, and others which are "just" same-old-legal-tactics.
Both are chilling to programmers. But I worry that a skeptic will
dismiss the DMCA situations where there have been profound changes
(overturning the _Sony_ substantial non-infringing use standard), if
those are conflated with situations of same-old-legal-tactics (throw
charges, who cares if they fit, that's a detail, see if they stick).

	This is where I think it'll be a mistake to go down a path
talking about everything-is-a-copy-control-device, and thus
so-DMCA-applies-to-everything. No, that's an error in my view, and I
fear it'll be dismissed as nonsensically alarmist.

	The point in the Elcomsoft case is that the DMCA doesn't
require any specific copyright violation. But that doesn't mean
everything under the sun having to do with computer security or
formatting, is now a potential copyright-control violation. That's
where I think a wrong turn was being made, into a straw-man that
was going to be easy to demolish by DMCA proponents.

	Maybe I'm wrong. And I'm certainly bad at politics.

	My view here is affected by going through years and years of
getting flack from critics about how I was imagining legal risk for
my anti-censorware work, that lawsuits wouldn't happen, etc (it's
less these days than years ago, but I'm *still* even getting some of
that - maybe I'll benefit from Bruce Perens' recent DMCA pull-back). I
like to have claims be as well-grounded as possible. Because I know
how savage can be the attacks of critics that the possibility of
prosecution is just a product of paranoia.

-- 
Seth Finkelstein  Consulting Programmer  sethf at sethf.com  http://sethf.com
Anticensorware Investigations - http://sethf.com/anticensorware/
Seth Finkelstein's Infothought list - http://sethf.com/infothought/
http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html