Книга: Code 2.0

Anti-Circumvention

Anti-Circumvention

Whatever problem the content industry had with DAT tapes, no doubt they look tiny compared with the problems the content industry has with digital content and the Internet. Although DAT makes perfect copies possible, it doesn’t make distributing those perfect copies any easier. That honor fell to the Internet. Now digital technology not only assured perfect copies of the original, it also made it trivial to distribute those digital copies for free.

As I describe more in Chapter 10, one response to this “feature” of digital technologies is “digital rights management” technology. DRM technologies add code to digital content that disables the simple ability to copy or distribute that content — at least without the technical permission of the DRM technology itself.

Thus, the songs I’ve purchased and downloaded from Apple’s iTunes music store are protected by Apple’s “fairplay” DRM technology. That technology permits me to copy the song to a limited number of machines, but it restricts my ability to copy those songs broadly.

This restriction is effected through code. The “copy” function is produced through code; the DRM technology modifies, or qualifies, that “copy” functionality. It is thus a classic example of code being deployed to restore control over something that (different) code had disabled.

These systems of DRM are privately created. But in 1998, they got an important subsidy of protection from Congress. In the Digital Millennium Copyright Act, Congress banned the creation and distribution of technologies “produced for the purpose of circumventing a technological measure that effectively controls access ” to a copyrighted work, or “primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner.”[61] By banning this code, Congress aimed to add support to the code content creators were distributing to protect their content. Thus, by directly regulating code, Congress indirectly regulated copyright infringement.

Since this enactment, there has been no end to trouble and litigation surrounding it. Beginning in 1999, the DVD-Copy Control Association began suing individuals and websites that facilitated access to a program, DeCSS, which could be used to decrypt data on DVDs.[62] In July 2001, 27-year-old Russian programmer Dmitry Sklyarov was arrested while giving a presentation in Las Vegas because the company he worked for in Russia had produced software that enabled people to circumvent the access protection technologies built into Adobe’s eBook system.[63] Sklyarov spent six months in an American jail before he was permitted to return to his family in Russia.

The effect of this regulation is hard to measure. The Electronic Frontier Foundation has cataloged its view of the law’s effect five years after the law was enacted.[64] And while the EFF’s view may not be universal, there is a fairly universal surprise at the range of cases that have been brought under the statute. (I doubt the framers of the DMCA imagined that garage door companies would be suing to protect their automatic door openers from competition under the DMCA (they lost).[65])

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