A court in Finland ruled last week that it is not a violation of that nation’s anticircumvention law to circumvent CSS, the copy protection system in DVDs. Mikko Välimäki, one of the defense lawyers, has the best explanation I’ve seen.

Finnish law bans the circumvention of “effective” DRM (copy protection) technologies. The court ruled that CSS is not effective, because CSS-defeating tools are so widely available to consumers.

The case is an interesting illustration of the importance of word choice and definitions in lawmaking. The WIPO copyright treaty required signatory nations to pass laws providing “effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of the rights …” Reading this, one can’t help but notice that the same word “effective” describes both the remedies and the measures. The implication, to me at least, is that the legal remedies only need to be as effective as the technological measures are.

The Finnish law implementing the treaty took the same approach. In language based on an EU Copyright Directive, the Finnish law defined an effective technology as one that “achieves the protection objective” (according to Mr. Välimäki’s translation). The court ruled that that doesn’t require absolute, 100% protection, but it does require some baseline level of effectiveness against casual circumvention by ordinary users. CSS did not meet this standard, the court said, so circumvention of CSS is lawful.

U.S. law took a different approach. The Digital Millennium Copyright Act (DMCA), the U.S. law supposedly implementing the WIPO treaty, bans circumvention of effective technological measures, but defines “effective” as follows:

a technological measure `effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work

Some courts have read this as protecting any DRM technology, no matter how lame. It has even been held to protect CSS despite its notoriously weak design. It’s even possible that the structure of the U.S. DMCA helped to ensure the weakness of CSS – but that’s a topic for another post.

One of the tricks I’ve learned in reading draft legislation is to look closely at the definitions, for that’s often where the action is. An odd or counterintuitive definition can morph a reasonable-sounding proposal into something else entirely. The definition of a little word like “effective” might be the difference between an overreaching law and a more moderate one.

Four years ago I wrote about a company called Music Public Broadcasting:

In today’s Los Angeles Times, Jon Healey writes about a new DRM proposal from a company called Music Public Broadcasting. The company’s claims, which are not substantiated in the story, give off a distinct aroma of snake oil.

I went on to document the snake oil indicators: (1) the flamboyant, self-promoting entrepreneur, newly arrived from another field; (2) the vaguely articulated theoretical breakthrough, described in mystical terms unintelligible to experts in the field; (3) the evidence that the product hadn’t been demonstrated or explained to its customers; (4) the claims to invalidate an accepted, fundamental principle in the field — but without really explaining how it is done. As one potential customer said, “If it’s not snake oil, it’s pretty awesome.”

Now the same company, having adopted a new name, is floating an equally improbable legal theory: that Microsoft, Apple, Adobe, Real, and anybody else making music download tools is legally required to license the company’s technology. Their theory is that these target companies are “avoiding” the use of their anti-copying technology – avoiding it in the sense of not buying it – and the Digital Millennium Copyright Act prohibits avoidance of copy protection. In other words, the target companies have a legal obligation to buy the company’s technology and, on the same theory, any other technology that claims to stop infringement. Snake oil purchases are now mandatory.

If you believe this company’s legal claim is any more solid than its technical claim, I have a bridge to sell you – and let me assure you that you’re legally compelled to buy it.