There will be few if any postings here until January 2. Enjoy the holidays, and I’ll see you here next year!
The U.S. government’s Copyright Office has put up a site containing all of the requested exemptions from the DMCA’s ban on circumvention of access controls. There are fifty submissions in all, including mine.
In January, the reply comment period will open. Anyone can submit reply comments, either opposing or supporting any of the requested exemptions. Watch this space, as the reply comment period approaches, for specifics on how to participate.
One of the apparent themes this week is the Conspiracy to Silence Donna Wentworth. First, Donna’s great blog, Copyfight, was apparently being blocked by the CyberPatrol web filtering software as “possibly inappropriate content.” Then two issues of Donna’s email newsletter, The Filter, were labeled by SpamAssassin as “probably spam.” (Seth Finkelstein diagnoses the latter problem, and has suspicions about the former.)
So if Donna starts acting a bit paranoid, let’s take it easy on her. This week, the world really has been out to get her.
Over at BoingBoing, Xeni Jardin discusses Ken Hertz’s speech accepting an ACLU Bill of Rights Award. Hertz advocates a compulsory license for online music sharing. (This is something I have discussed (but not endorsed) before.)
The significance of this, according to Xeni, is that Ken Hertz has represented several big-name musicians, including Will Smith and Alanis Morissette, so he is not exactly an outsider.
According to an AP story by Ron Harris,
Seven major motion picture studios filed a counterclaim Thursday in U.S. District Court, Northern District of California against 321 Studios, makers of DVD Copy Plus and DVD X Copy.
The software sold at stores nationwide allows the user to make a copy of a DVD to a blank CD or DVD by defeating the copy protections encoded onto the original movie disc. The studios contend that is an illegal activity.
The movie studios say the software contains the power of digital piracy, and asked the court to enjoin 321 Studios from selling it or distributing it. The studios also seek damages from any proceeds derived from the company’s software sales.
“It’s like somebody selling a digital crowbar. It’s like breaking into the castle if you will,” said Patricia Benson, an attorney for the studios.
I’m not sure what castle Ms. Benson is referring to, but the crowbar analogy pretty much speaks for itself. Ms. Benson would doubtless be shocked to learn that an outfit calling itself “Ace Hardware” is selling crowbars openly, right here in sleepy Princeton, New Jersey.
Yesterday was the deadline for submitting to the Librarian of Congress any requests for exemptions from the DMCA’s ban on circumvention of access control technologies. I submitted a request, asking for an exemption for legitimate research study of access control technologies.
According to James Grimaldi’s column in Monday’s Washington Post, lawyers at the prominent firm Jones Day are accused of making unauthorized accesses to the password-protected web site of an opposing expert witness. Grimaldi writes,
W. Kelly Stewart, of Jones Day’s Dallas office, testified last month that he entered Egilman’s site after Jones Day attempted and failed to purchase access online. Then, after getting the pass code from co-counsel Behr, who had guessed it, Stewart entered the Web site, Stewart testified. The material gathered was used to discredit Egilman as an expert witness in a high-profile trial.
It remains to be seen whether a court will consider the conduct illegal. Computer law specialist Marc J. Zwillinger of Kirkland & Ellis said guessing a password, getting in and getting information is a technical violation of the Computer Fraud and Abuse Act.
[link credit: GrepLaw]
Today, while visiting a large company, I tried to visit some of the websites on this site’s link-list. I found that three of them were blocked due to “possibly inappropriate content.”
The three blocked sites were Eszter Hargittai’s blog, Arnold Kling’s “The Bottom Line”, and Donna Wentworth’s “CopyFight”. (The whole Corante site, which hosts several blogs besides Bottom Line and Copyfight, appeared to be blocked.)
My hosts told me that their company uses CyberPatrol to filter their web access. So apparently CyberPatrol erroneously blocks more than 10% of the blogs I read.
Orin Kerr at The Volokh Conspiracy explains why ElcomSoft’s ignorance of the law was an excuse in this instance.
Also, some are suggesting that jury nullification may have played a role in ElcomSoft’s acquittal. (“Jury nullification” refers to a jury’s refusal to find guilt under a law because they consider that law unjust.) An AP story says:
The defense argued that the program merely enabled owners of Adobe eBook Reader software to make copies of e-books for personal use. If an owner makes a backup copy of an e-book or transfers it to another device he owns, they argued, that is permitted under the “fair use” concept of copyright law.
Jury foreman Dennis Strader said the argument made a big impact on the jurors, who asked U.S. District Judge Ronald M. Whyte to clarify the “fair use” definition shortly after deliberations began.
“Under the eBook formats, you have no rights at all, and the jury had trouble with that concept,” said Strader.
Lisa Bowman at news.com reports that the jury has found ElcomSoft not guilty of criminally violating the DMCA.
It will be interesting to watch the reaction to this. Some people may try to read a lot into the verdict, but this is probably a mistake. Apparently, the verdict relied not on the drawbacks of the DMCA, and not on whether ElcomSoft’s actions were morally justified, but on the narrow question of what ElcomSoft knew about the DMCA when they sold their product. Not knowing the precise limits of the DMCA, ElcomSoft could not knowingly violate it.