[free-sklyarov] AAP response quoted in a previous thread

Paul Callahan callahanpb at yahoo.com
Mon Aug 6 12:46:49 PDT 2001

Thanks for posting Adler's response to the ACM letter.
It does make it clear (as should already be obvious) 
that DMCA proponents have a well-thought-out agenda. 
It's not that they are ignorant of technology. In
they know just how easy it is to crack a carelessly
designed copy-protection system and this is why they
favor criminalization of anti-circumvention 

I see the AAP argument as this: we need laws against
the authorship of anti-circumvention tools regardless
of their intended use. The cost to society from
having them available is too great, since it will
allow the easy theft and widespread duplication of any
intellectual property in electronic form. Simply
prosecuting infringement (already illegal before DMCA)
is ineffective.  DMCA is intended to augment 
previous law in order to prevent the proliferation
of tools that promote infringement.

The legal argument really boils down to whether you
believe that the rights of publishers should be
extended beyond their de facto status before DMCA.
Many here, myself included, believe that there is a 
fundamental right to fair use that includes selling
used books, copying books into a more convenient form
for use by the purchaser, and citing text in
reviews and so forth.  These have historically been
enjoyed by the lawful purchasers of IP (readers) and
have arguably promoted, not undermined the societal
benefits (incentive to produce scholarly work) that
used to justify copyright law in the first place.
New encryption technology, if *correctly* implemented,
will allow publishers to infringe on these rights,
historically enjoyed by readers.  Thus, DMCA extends
the rights of publishers. 

So with this in mind, it becomes clear that DMCA
is a one-sided law.  In a different world, I could
be writing a response from the "American Association
of Readers":

"The very development of
copy-protection technology should be criminalized,
since its proliferation will make it possible to
infringe on the fair use rights of readers.  It is not
merely enough to prosecute a publisher that sells
an ebook without a feature allowing fair use, but
even the development of cryptographic copy protection 
is wrong, since it would so facilitate the ability
of publishers to infringe on the reader's fair use
rights that there would be no effective recourse. 
Thus, the law should forbid not only the
infringing use of copy-protection technology, 
but the technology itself."

If the suggestion above sounds any more laughable than
Mr. Adler's, I can only suggest that this is because
we as a society have become accustomed to hearing
draconian laws proposed to protect corporate profits
from the effects of new technology. But there are 
also historical civil liberties threatened by
technology. While these are sometimes discussed
(privacy of financial databases), one rarely hears
of new crimes being invented to protect them. E.g.,
I have heard nothing about the FBI vigorously
prosecuting credit
card executives who fail to comply with laws
demanding that they send privacy rights notification

Personally, I think the DMCA anti-circumvention 
provision is not only an unjust use of
government force, but also a very unrealistic approach
to preventing unauthorized copying. Sklyarov was 
caught precisely because of Elcomsoft's insistence
that its business was not violating any law
combined with Sklyarov's openness in claiming 
authorship.  It would be virtually impossible to
enforce this law against a company that was making 
any serious effort to evade prosecution.

Somehow, the suggestion seems to
be that with a sufficiently draconian penalty and
relentless enforcement, it will be possible to deter
any would-be authors of unauthorized decryption
software even if the decryption systems themselves
are not intrinsically secure.  I would concede that 
this may be true, but "sufficiently" in this
case is at an unprecedented cost to the civil
enjoyed in a democratic society.


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