Donna Wentworth at Copyfight reports that the U.S. has signed a trade agreement with Singapore that requires the U.S. to refrain from repealing the anti-circumvention provisions of the Digital Millennium Copyright Act. This looks suspiciously like an end-run around the legislative process.

One complaint about the DMCA has been that it holds back the development of technology in the U.S., and thereby weakens our competitive position against other countries’ technology industries. The obvious solution to this kind of self-inflicted competitiveness problem is to repeal the offending law. It looks like our trade representatives have hit upon another plan: convince other countries to hold back their technology industries too.

Andrew Ross Sorkin’s much-discussed article in Saturday’s New York Times details planning by the record industry to launch aggressive cyber-attacks against suspected copyright infringers.

Some of the world’s biggest record companies, facing rampant online piracy, are quietly financing the development and testing of software programs that would sabotage the computers and Internet connections of people who download pirated music, according to industry executives.

The record companies are exploring options on new countermeasures, which some experts say have varying degrees of legality, to deter online theft: from attacking personal Internet connections so as to slow or halt downloads of pirated music to overwhelming the distribution networks with potentially malicious programs that masquerade as music files.

Some of the programs described are unethical and probably illegal to use. An example is a program that “locks up a computer system for a certain duration — minutes or possibly even hours — risking the loss of data that was unsaved if the computer is restarted.”

It’s not surprising that a few people are asking “what if” questions about technological measures that are theoretically available to the music industry. I of all people am not going to criticize somebody for thinking about the technical implications of security attacks that they would never imagine actually carrying out. What is surprising is that some industry people are talking to the press about the possibility of carrying out these attacks.

The music industry has carefully positioned itself as a bulwark against the depredations of a scofflaw techno-rabble. Articles like this only tarnish that carefully cultivated image. So: who is talking to the Times about this?

A close reading of the article seems to reveal that there is less here than meets the eye. The RIAA distances itself:

[RIAA President Cary Sherman] said that while his organization often briefs recording companies on legal issues related to what he calls “self help” measures, “the companies deal with this stuff on their own.”

And as for the more extreme approaches, he said, “It is not uncommon for engineers to think up new programs and code them. There are a lot of tantalizing ideas out there — some in the gray area and some illegal — but it doesn’t mean they will be used.”

The five major record companies are similarly closed-mouthed:

The music industry’s five “majors” … have all financed the development of counterpiracy programs, according to executives, but none would discuss the details publicly. Warner Music issued a statement saying: “We do everything we feel is appropriate, within the law, in order to protect our copyrights.” A spokeswoman for Universal Music said that the company “is engaging in legal technical measures.”

Nothing in these statements indicates that the majors are considering illegal or borderline-legal actions.

The main sources for the article appear to be two companies, Overpeer and MediaDefender, who have reason to tout their techno-capabilities to the industry, along with anonymous “industry executives.” My guess is that the extreme measures discussed in the article represent the fantasies of a few people in the industry, rather than an organized plan that has any chance of becoming reality.

Yesterday, the O’Reilly Emerging Technology Conference had a session on the copy protection wars. Louis Trager reports, in a story headlined “Hollywood Survival Isn’t Worth Sacrificing Tech Freedom, Activists Say”, in today’s Washington Internet Daily:

Legal restrictions on technology and content copying pose a far greater risk to society than the extinction of the established entertainment industry for failure to adjust to a digital economy, activist speakers said Wed. at an O’Reilly Emerging Technology Conference.

Movie and music industry lobbyists portray copyright infringment as a disease whose cure is technology regulation. One way to respond is to argue that the cure is worse than the disease. That is probably a correct judgment, though it is a hard argument to win.

More to the point, it’s an argument that should be irrelevant to the real policy debate. Framing the question as a comparison between the costs of the disease and the costs of the treatment buys into an analytical mistake that the content lobbyists have injected into this debate.

The right question to ask is not whether the treatment is worse than the disease, but whether the treatment does more harm than good.

Imagine a medieval doctor who treats a gravely ill patient by bleeding out a quart of the patient’s blood. The doctor argues that this is the correct treatment, because the blood loss does less damage to the patient than the disease is already doing. We rightly reject the doctor’s argument, because we know the treatment is harming the patient without doing anything to cure the disease.

By this standard, it’s clear that the content industries’ regulatory prescription is bad medicine. We have taken the medicine of technology regulation, but the patient’s health hasn’t improved. The disease is as bad as ever, and all Dr. Valenti has to offer is a bigger dose of the same odd-smelling exilir.

Maybe it’s time to get a second opinion.

[Text modified at 10:45 AM: The original version of this entry had implied that the speakers at the O’Reilly conference had made the analytical mistake at issue. Louis Trager, the author of the quoted article, told me that I had misinterpreted his article in reaching that conclusion, so I revised the entry so as not to pass on the misinterpretation.]

Most businesses know that it’s wise to honor the values of their customers. So you’ve got to wonder what Blackboard was thinking when it sued to block a conference presentation last weekend.

Blackboard’s customers are colleges and universities. As Karl-Friedrich Lenz observes, these are organizations that hold freedom of speech and freedom of inquiry as central values. Seeking an injunction against both speech and inquiry, as Blackboard did, and making that injunction so broad, has got to rub many of Blackboard’s customers the wrong way.

Blackboard’s defensive and somewhat misleading press release may be a sign of the bind it has created for itself. The release implies that each Blackboard product either is physically secure, or relies on cryptography for protection. The two students, Billy Hoffman and Virgil Griffith, were reportedly going to say that the product in question used neither method of security, but was basically open to abuse by anyone who could unscrew a few screws. There could have been a debate about who was right, but Blackboard wouldn’t allow that to happen. Most observers will conclude, sensibly, that Blackboard tried to block that debate because it expected to lose it.

Like most censorship attempts, Blackboad’s strategy has backfired. They have only drawn attention to the content they tried to suppress, so that more Blackboard customers know about the students’ conclusion that Blackboard’s technology is insecure. All this, plus an affront to the values of Blackboard’s customers.

Come to think of it, Blackboard may have done a small service to educators after all – by providing an instructive example of the perils of censorship.

Two of the best sources on the RIAA vs. student lawsuits come, appropriately, from other students.

Joe Barillari, a student in my “Information Technology and the Law” course at Princeton, has written an interesting analysis of the case against his fellow Princeton student Dan Peng. [Annoying disclaimer: Joe doesn’t speak for me; I don’t speak for Joe; neither of us speaks for Princeton.]

Zack Rosen, a student at Illinois, has written a primer on file sharing/searching technologies. He also describes how the “Napster-like” functionality, on which RIAA builds their contributory infringement case against the students, bears a very close similarity to search ffunctionality provided by Microsoft in Windows.