DigitalConsumer.org Frequently Asked Questions

Q & A

Frequently asked questions and their answers

Privacy

Our privacy policy

This work is licensed under a
Creative Commons License.

5. Miscellaneous

5.1 Do fair use rights for consumers harm the content industry?

Definitely not. None of the rights that we are advocating would make it legal to steal music or movies. In fact, history has shown us that robust fair use rights can actually benefit the content industry. For example, the content industry bitterly opposed VCRs, arguing that they infringed on their copyrights for movies. The head of the MPAA even compared the VCR to the Boston Strangler. However, the sale of video tapes now represents a large source of revenue for the movie studios.

http://www.mbcnet.org/archives/etv/B/htmlB/betamaxcase/betamaxcase.htm
"The plaintiffs, Universal and Walt Disney Productions on behalf of the Hollywood majors, charged that the ability of the Betamax to copy programming off air was an infringement of copyright and sought to halt the sale of the machines."

http://cryptome.org/hrcw-hear.htm
"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

http://www.consolidatedpictures.com/industrytechnologynewsdetail.asp?newsID=10
In 2001, VHS and DVD rentals made more money for the studios than box office receipts.

5.2 Do fair use rights for consumers harm artists and creators?

Definitely not. None of the rights that we are advocating would cause artists to lose control over the public or commercial use of their works.

In fact, most of the problems that artists face in the digital world have little to do with technology. Even the new legal music services provided by the major labels have caused artists to lose control over their creations.

http://www.nytimes.com/2002/02/18/technology/18SONG.html
"Last December, the major record labels responded with two Internet services of their own where fans pay monthly fees to download songs. Under this arrangement, however, the performers still don't get a dime: for each song downloaded, they stand to get only a fraction of a cent, according to the calculations of disgruntled managers and lawyers. And, artists and their managers say, the labels, like Napster, aren't putting the music online with proper permission either."

5.3 Do anti-circumvention copyright laws harm innovation?

Absolutely. The anti-circumvention provisions of the DMCA hinder innovation in a number of ways. Devices such as VCRs and portable MP3 players might not exist today if anti-circumvention laws had been in place when they were released. (An injunction against portable MP3 players was lifted just two days before the DMCA was signed into law.)

Anti-circumvention laws can also be used to prevent competition. If copy protections cannot be circumvented, then it is impossible for computer scientists to "reverse engineer" software or devices in order to build compatible products. For example, if computer vendors had not been allowed to reverse-engineer certain computer chips, IBM would have remained the only producer of personal computers. Dell, Compaq, and Gateway would have never existed.

In addition, anti-circumvention laws can be used to prevent interoperability. Microsoft's networking protocols are proprietary and undocumented, so reverse engineering is required in order to allow Macintosh or Unix machines to communicate with Windows machines. The free Samba product (which allows Unix machines to share files with Microsoft machines) could not be created under the DMCA.

The DMCA can even be used to silence discussion and criticism about a company's products. Microsoft invoked the DMCA in order to shut down internet bulletin boards that contained unfavorable discussions of its products.

http://www.siliconvalley.com/mld/siliconvalley/2658555.htm
"If the business people who rule the entertainment industry had been as powerful 25 years ago as they are today, you'd be breaking the law if you set your videocassette recorder to tape your favorite Olympic event for later viewing. The VCR, assuming the entertainment industry would have allowed a manufacturer to sell it, would not have a fast-forward button because it would let you skip through the commercials without viewing them."

http://www.computerworld.com/cwi/story/0,1199,NAV47_STO44068,00.html
"San Jose-based Phoenix Technologies Ltd.'s reverse engineering of IBM's BIOS in the mid-1980s became the basis for the entire PC clone industry." And the Samba team "is forced to reverse engineer because Microsoft doesn't offer documentation of its proprietary protocols."

http://www.loc.gov/copyright/1201/comments/147.pdf
"A team of developers in Australia created the 'samba' suite, enabling a variety of UNIX-like machines to act as file and print servers also for Windows machines. This fact alone has prevented a monopoly, and preserved a healthy and competitive business climate in the area of network servers. The 'samba' suite was made possible by reverse engineering Microsoft's 'SMB' protocol, something which according to my understanding would be deemed illegal under the DMCA."

http://www.thenewrepublic.com/cyberspace/cohen052300.html
"If Microsoft's interpretation of the DMCA's ban on circumvention technologies is right, then it doesn't seem to matter much whether posting unauthorized copies of the Microsoft Kerberos specification would be a fair use. A publisher can prohibit fair-use commentary simply by implementing access and disclosure restrictions that bind the entire public. Anyone who discloses the information, or even tells others how to get it, is a felon."

5.4 But I thought the DMCA had a special exemption for reverse engineering?

Section 1201(f) of the DMCA states that "a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs." Doesn't this solve the reverse-engineering problem?

This exemption is inadequate for several reasons. First, reverse-engineering has many legitimate uses beyond strict interoperability that are not allowed by the DMCA. Significantly, one might reverse-engineer in order to build a competitive product, but such reverse-engineering is not permitted. Other legitimate uses that are not exempted include: verifying proper operation of a program; discovering undocumented features; or correcting bugs in the external specifications of an application.

Second, "interoperability" is narrowly defined by the DMCA as meaning "the ability of computers to exchange information, and of such programs mutually to use the information which has been exchanged." By restricting interoperability to information exchange, the DMCA excludes other legitimate types of interoperability such as API-level replacements for computer libraries.

Third, the DMCA only exempts reverse-engineering for computer programs, not for network protocols or hardware devices.

Fourth, while section 1201(f) provides an exemption for reverse-engineering, sections 1201(a)(2) and 1201(b) explicitly prohibit the act of providing technologies that are "primarily designed for the purpose of circumventing protection". So while the DMCA offers a narrow exemption for reverse-engineering, it forbids the manufacture of the tools that would actually enable you to use the exemption!

Finally, the DMCA has clearly had a chilling effect on existing industries. For example, in the DeCSS case, the motion picture industry sued programmers who developed code that provided interoperability with DVD encodings -- exactly the type of reverse-engineering supposedly protected by the DMCA's exemption. Other examples of the DMCA chilling innovation can be found in the Adobe e-book case (where Adobe sued a Russian programmer for reverse-engineering their electronic book format) and the Microsoft case mentioned above (5.3).

For these and other reasons, a number of observers have commented that the DMCA's exemption for reverse-engineering is illusory.

http://www.dibona.com/dmca/
Dozens of prominent software engineers and executives protest the DMCA's ban on reverse-engineering. Signatories include the chairmen of Red Hat and VA Linux and the authors of the Perl programming language, the Apache web server, and the Sendmail email server. "The DMCA, in spite of its supposed exception, punishes reverse engineering."

http://resellernews.co.nz/Reseller/Reseller.nsf/ArchiveByCategory/1BBFDB5046CE4D5ACC256B03007B4704?OpenDocument
"'But you're not allowed to see if the software does what it's supposed to do,' says Granick, nor can you look at it for purposes of scientific inquiry. She offers an analogy: 'You have a car, but you're not allowed to open the hood.'"

http://www.acm.org/usacm/IP/2dvdornot.html
The president of the Association of Computing Machinery (the most prominent organization of computer scientists in the country) states that "the DMCA outlaws almost all reverse engineering of copy protection systems" (although the article goes on to note that reverse engineering for interoperability is exempted).

5.5 Do copyright laws affect libraries?

Unfortunately, the increasing imbalance in copyright law is having negative effects on the ability of libraries to provide their public services. Anti-circumvention rules make it difficult for libraries to archive and loan content. Even worse, certain publishers have announced their intent to "push back" on the libraries and force them to charge patrons for accessing electronic books.

http://www.washingtonpost.com/ac2/wp-dyn/A36584-2001Feb7
"The [American Association of Publishers] is looking for ways to charge library patrons for information. 'Politically,' Schroeder says, 'it's the toughest issue. Libraries have a wonderful image.'"

http://www.technologyreview.com/articles/shulman0601.asp
"[The president of the American Association of Publishers] has been quoted as saying that publishers have to 'learn to push back' against libraries, which she portrays as an organized band of pirates!"

http://www.ala.org/washoff/dmca.html
"Over the long term, these technological 'locks' could have an enormous impact on the ability of libraries to provide access to, lend, and archive material, as well as adversely affect the ability of users of a library to make full legitimate use of its resources."

Home

Overview

News

Get Active