[free-sklyarov] Keep Signing the Petition to Strike Down the DMCA

[Seth Johnson]

http://www.PetitionOnline.com/nixdmca/petition.html


To:  US Congress and the Judiciary 

We, the undersigned, are citizens who believe that the
anti-circumvention provisions in Chapter 12 of the U.S. Copyright Act,
enacted in the Digital Millennium Copyright Act ("DMCA") must be
repealed or struck down as unconstitutional. 

We believe that this law contradicts the interest that we, the People,
intended when we delegated Congress the Constitutional Power "to promote
the progress of science and useful arts, by securing for limited times
to authors and inventors the exclusive right to their respective
writings and discoveries". 

We agree with Julie Cohen, writing for 46 intellectual property
professors who find that "The DMCA's anti-device provisions are not a
valid exercise of any of Congress' enumerated powers." We endorse their
amicus brief submitted in Universal v. Corley:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_lawprofs_amicus.html 

We agree with the Supreme Court that copyright is not a birth right, but
a "wholely statutory" grant (Wharton v. Peters, 1834). The Copyright
grant exists by the grace of the public as a public investment for the
public benefit, much like a loan. "The sole interest of the United
States and the primary object in conferring the monopoly lie in the
general benefits derived by the public from the labors of authors" (US
v. Paramount Pictures, 1948; Sony v. Universal City Studios, 1984). 

This DMCA wrongly inhibits fair use of digital material by giving
publishers a false right to control access to their digital material.
Fair use is the quid-pro-quo that we, the People, demand in return for a
temporary exclusive right to profit from a particular expression of
one's work. We agree with Justice Stevens that copyright has "never
accorded the copyright owner complete control over all possible uses of
his work" (Sony v. Universal City Studios, 1984). 

We agree with Justice O'Connnor that "The author's consent to a
reasonable use of his copyrighted works had always been implied by the
courts as a necessary incident of the constitutional policy of promoting
the progress of science and the useful arts, since a prohibition of such
use would inhibit subsequent writers from attempting to improve upon
prior works and thus . . . frustrate the very ends sought to be
attained." (Harper & Row v. Nation Enterprises, 1985). These
requirements are Constitutional in origin: “First Amendment protections

[are] embodied in the Copyright Act’s distinction between copyrightable
expression and uncopyrightable facts and ideas, and in the latitude for
scholarship and comment traditionally afforded by fair use.” (Harper &
Row v. Nation Enterprises, 1985). 

Moreover, the DMCA denies basic property rights to purchasers of
tangible goods. The doctrine of First Sale protects these property
rights, and includes but is not limited to  - the right to private
performance of audio-visual works (PREI v. Columbia, 1993)  - a right to
display works, 17 USC 109(c)  - a right to copy or adapt digital
software works for utilization with a machine 17 USC 117(a)(1)  - a
right to copy or adapt digital software works for archival purposes 

In stark contrast, the DMCA takes these property rights from their
owners and gives them permanently to publishers. We reject the notion
that First Sale provides only the right to resell as advanced to defend
the DMCA by certain Courts and the Copyright Office. The Copyright
Office recently published a report to Congress about the effect of the
DMCA on First Sale without mentioning these rights. To ignore the impact
of the DMCA in particular on an owner's private performance right per
PREI v. Columbia is an egregious omission. We reject the report and
believe it grossly misstates the negative impact to the public of the
DMCA. 

We agree with Professor Felton that the DMCA chills speech and the
progress of science in the arena of computer security. We believe that
the DMCA will harm, not help, the interests of authors and citizens for
this reason. We reject security through censorship. 

We agree with the 17 eminent Computer Science professors represented by
James Tyre and the 8 leading Cryptologists represented Jennifer Granick
that:  http://cryptome.org/mpaa-v-2600-bac.htm 
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_crypto_amicus.html 


- Computer Code is Expressive Speech.  - Academics and Programmers Must
Have the Freedom to Communicate Fully in Code.  - Source Code And Object
Code Are Copyrightable And Thus Entitled To Full First Amendment
Protection.  - The Protection Given To Code Cannot Be Limited On Account
of "Functionality".  - The Encryption Research Exemption Is
Insufficient  - The Anti-dissemination provisions are content based  -
The DMCA harms rather than furthers a substantial public interest  -
Inventing false new rights for publishers and effectivly eliminating
fair use are not "narrowly tailored" means against copyright
infringement 

In particular, we reject the regulation of code as symbolic conduct
under the "O'Brien" standard. Code is simply text, which has no conduct
inherently associated with it. Code expresses functional ideas, much as
a musical score does. It takes a machine and a willing human operator to
turn those ideas into conduct. O'Brien was not arrested for carrying
instructions on how to burn his draft card. 

Finally, we view with disgust the arrest of Dmitry Sklyarov, who is
charged with creating tools to read encrypted books. In the middle ages
the pre-reform Catholic Church persecuted scholars who tried to
translate the Latin bible into the common vernacular. Today encryption
has replaced Latin as the tool of choice to stifle the right to read.
The protestants who founded this nation, English bible in hand, would
look upon the DMCA with the same disgust that they looked upon the evils
of the medieval Catholic Church. 

For the above reasons, we reject chapter 12 of the Digital Millennium
Copyright Act as unconstitutional and bad policy. 

We demand that Congress repeal it and that Courts strike it down. 

Failing the rule of law, we, the People, declare "misuse of copyright"
by popular decree, and thereby revoke our grant of Copyright to those
works protected by chapter 12 of the Digital Millennium Copyright Act
until such time as the government restores the Copyright Act to a form
consistent with the Constitution and the will of the people. 

Sincerely, 

The Undersigned