[free-sklyarov] Re: Criminalizing crypto criticism (fwd)

[Jay Sulzberger]

---------- Forwarded message ----------
Date: Sat, 28 Jul 2001 13:34:00 -0700
From: John Gilmore <gnu at toad.com>
To: cryptography at wasabisystems.com, cypherpunks at cyberpass.net, gnu at toad.com
Subject: Re: Criminalizing crypto criticism

> Much of the hysteria regarding the DMCA's supposed ability to quash free
> speech by cryptographic researchers is being whipped up by opponents
> to the DMCA who are misrepresenting the DMCA in a calculated fashion in
> order to promote opposition.

The anonymous poster's legal analysis was not particularly novel.  It
states that the "exemptions" in the DMCA actually cover the things
that they were supposedly intended to cover.  That would be a
refreshing change if it were true, but the law is full of weasel words
and exemptions to the exemptions.  Only accredited researchers, not
cypherpunks, can do research, for example.  And you're only exempt if
you tell the company first, so they know to sue you before you do the
research, rather than after the results are leaking out to the public.

Neither my opinion nor the poster's opinion controls, though.  What
matters is what the judges will say, and how expensive it is to
ordinary researchers to find out.  In the 2600 case, what the judge
said is that even if Jon Johansen might have been able to reverse-
engineer DVD players under an exemption (an issue that he didn't
decide), 2600 Magazine was unable, under the statute, to publish even
*A LINK* to Jon's results.

The judge swept aside all the clauses like:
> 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.
>
> Clearly publication of cryptographic results is a fundamental part of
> free speech and will not be infringed by the DMCA.

The other side argued in the 2600 appeal that this was a standard
"savings clause" inserted in the legislation and was not intended to
mean anything.  It goes like this: either the law is constitutional or
it isn't.  If it is constitutional, this clause is inoperative, since
clearly those Constitutional rights weren't diminished.  If the law
violates the Constitution, then the Constitution, not the statute,
controls what rights the public has; again this clause doesn't.  The
judge agreed with the government and Hollywood that it was clearly put
in there to "buy off" some opponents of the DMCA and didn't have any
legal effect.  The only minor issue is that THOSE SUCKERS ACTUALLY
BELIEVED IT, dropped their opposition, and let the DMCA become law.
But that wasn't the judge's problem -- only the defendant's.

> In fact the RIAA takes that same position now, as seen in
> http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010606_riaa_statement.html.

Because the Felten case so clearly shows what's wrong with the DMCA,
RIAA is desparately trying to convince the court that it need not,
indeed cannot, make any decision in the Felten case.  Therefore
SDMI/RIAA is lying to the public and the court by saying that it
never, *ever*, intended to sue or threaten.  It was merely informing
people about their rights, you see.  They have moved to dismiss the
case on the grounds that "we agree with the other side's legal
analysis, so there's no issue for a court to decide."  They only agree
long enough to get out of that courtroom, then they'll find some way
to be disagreeable again.  The judge will decide whether to believe
them or not; the papers are still being filed about that.

> Princeton Professor Edward Felten and his research team were prevented
> from presenting their results regarding flaws in SDMI at the Information
> Hiding Workshop, based on a letter from the Recording Industry Association
> of America which claimed that such publication would violate the DMCA.
> In this case, the RIAA was mistaken about the application of the DMCA,
> as the above analysis makes clear.

Their mistakenness didn't prevent the RIAA from sending legal threats
to every author of the Felten paper, every member of the conference
committee that had decided to publish it, AND ALL OF THEIR BOSSES (one
of whom, a US Navy commander, shamefully abandoned the soldier-under-
fire who was reporting to him).  It didn't prevent Adobe from getting
its competitor Elcomsoft kicked off of four different spineless ISPs,
by sending lawyer letters alleging copyright infringement TO THE ISP,
when there was no copyright infringement going on.  Mistakes in
analysis, reconsidered a week later by Adobe, didn't prevent a US
Attorney's office from bringing charges against Dmitry.  Attorney
General Ashcroft just announced that they're setting up a dozen more
similar computer-and-copyright-prosecution task forces around the
country -- none of which will have any practical experience with the
DMCA yet.  Their mistakes are your problem, not their problem, until
YOU sue THEM.

Will everyone in the infrastructure on whom you depend be as strong as
you are in protecting your rights?  After you lose your job, your
Internet access, and your freedom of motion, because your scientific
work threatened some lawyer-infested company's business model, if you
have lots of spare money or raise lots of money somehow, you can have
your day in court, "as the above analysis makes clear".

And then maybe your judge will agree with the 2600 judge, or maybe
he'll agree with the anonymous poster.  Maybe the anonymous poster IS
Judge Kaplan and he's changed his mind.  I'll see you in court.

	John

PS: EFF won't be able to take every case that comes along.  The
community's donations to EFF have been gratifying, useful, indeed
essential.  But there is far more money going into rabid company
lawyers than is going into EFF or anywhere else for DMCA legal
defense.  It's classic public choice economics -- the benefit of the
DMCA is concentrated in big profits to small numbers of companies,
while the harm of the DMCA is spread widely through society.  The
companies will spend a lot to get those profits, while relatively few
people will want to spend much to defend against them.  EFF will have
to pick which cases to focus on: ones where we can set precedents and
get good leverage that will ultimately help the most people.  But some
people -- I predict many people -- are going to twist in the wind or
in prison for years, before the courts or Congress are pushed into
fixing the havoc caused by rabid copyright maximalists.  So what if it
decimates our profession?  We're a tiny minority of society, and we
don't bribe any legislators.  They'll only notice that we matter after
we're gone, when their security infrastructures fall to bits.



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