Hola a todos!
les reenv�o un mail que me acaba de llegar, donde se puede ver los
extremos ins�litos (y nocivos) a que puede llegar la aplicaci�n de la ley
del Milenio Digital (o como se traduzca), que en realidad cierra las
puertas a todo lo que sea experimentaci�n!
Aunque parezca algo lejano, creo que es un tema al que tenemos que estar
atentos, no vaya a ser que en un descuido aqu� nos enchufen una ley igual.
(Pido disculpas por lo largo del mensaje, pero me parece que vale la pena).
saludos,
bmf
---------------------------- Original Message ----------------------------
Subject: Truetype embedding-enabler : DMCA threats
From: "Francisco Figueirido" <[EMAIL PROTECTED]>
Date: Tue, November 11, 2003 4:34 pm
To: [EMAIL PROTECTED]
[EMAIL PROTECTED]
--------------------------------------------------------------------------
http://www.andrew.cmu.edu/~twm/embed/dmca.html
--
Francisco Figueirido, Ph.D. Phone: (212)317-7680
Quantitative Analyst Fax: (212)317-7601
Imagine Software, Inc. e-mail: [EMAIL PROTECTED]
233 Broadway 17th Floor
New York, NY 10279<html>
<head>
<title>Truetype embedding-enabler : DMCA threats</title>
<link REL=STYLESHEET TYPE="text/css" HREF="../tom7.css" TITLE="Tom 7">
<meta name=keywords content="truetype, TrueType, fsEmbed, embed,
installable, restrictive, change, embedding level, embedding, web page,
fonts,
font, divide by zero, tom murphy 7, fstype, fontographer, Microsoft,
Windows, Apple, Macintosh, Linux, WEFT, DMCA, free speech, code,
DeCSS, legal, haiku">
<meta name=description content="This free program allows you to change
your TrueType fonts to make it possible to embed them.">
</head>
<body bgcolor=#FFFFFF>
<center>
<table width=600><tr><td>
<table width=100%><tr><td><b>[ <a href=http://www.andrew.cmu.edu/~twm/>Tom
7 @ CMU</a> ]</b></td><td><b>[ <a href=http://fonts.tom7.com/>Divide By
Zero Fonts</a> ]</td><td><b>[ <a href=http://radar.spacebar.org/>Tom 7
Radar</a> ]</b></td></tr></table> <p><font size=+3><i>embed: DMCA
threats</i></font>
<p><font face="Verdana,Arial,Sans Serif" size=-1>
<p>I wrote <b><a
href=http://www.andrew.cmu.edu/~twm/embed/>embed</a></b> in 1997,
after discovering that all of my <b><a
href=http://fonts.tom7.com/>fonts</a></b> disallowed embedding in
documents. Since my fonts are free, this was silly -- but I didn't want to
take the time to open up each one in Fontographer, change the flag, and
then reset all of the extended font properties with a
separate program. What a bore! Instead, I wrote this program to
convert all of my fonts at once. The program is very simple; it just
requires setting a few bits to zero. Indeed, I noticed that other
fonts that were licensed for unlimited distribution also disallowed
embedding (this is Fontographer's default, after all). So, I put this
program on the web in hopes that it would help other font developers as
well.
<p>That was five years ago. Of course, I left the program up because I
believe it may be of continued interest to free font developers. Then one
day...
<p>
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 30 Jan 2002
<br><b>From:</b> Paul Stack
<br><b>To:</b> Tom 7
<br><b>Subject</b>: Font Embedding
<p>Dear Mr. Murphy. I represent Agfa Monotype Corporation and
International Typeface Corporation. The program you are distributing on
your website which allows a person to change the embedding
restrictions on a font has been brought to my attention.
<p>The distribution of this program, whether for free or for a fee,
infringes my client's federal copyrights in their TrueType programs. This
infringement carries the storng possibility of very substantial statutory
damages, the imposition of a federal injunction, and an
award of attorneys' fees. Demand is made upon to you to immediately remove
this program from your website and to contact me so that we can discuss
remaining issues between you and my clients.
<p>Very truly yours,
<p>Paul F. Stack
<br>Stack & Filpi Chtd.
<br>...
<br>Chicago, IL
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 30 Jan 2002
<br><b>From:</b> Tom 7
<br><b>To:</b> Paul F. Stack
<br><b>Subject</b>: re: Font embedding
<p>> The distribution of this program, whether for free or for a fee,
<br>> infringes my client's federal copyrights in their TrueType
programs.
<p>My web page contains none of your clients' copyrighted material. In
order for me to take this message seriously, I think you should explain
how precisely I am violating your clients' copyrights.
<p>I hope you address the fact that I have a legitimate use for this
program, namely the modification of the dozens of typefaces that I
created.
<p>Thanks,
<p>Tom
<p>[ Tom 7 : http://www.andrew.cmu.edu/~twm/ ]
<br>[ Tom 7 : http://fonts.tom7.com/ ]
<p class=gentle>Months pass. Now, another letter with a stronger
tone (but just as vague)...</p>
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 17 April 2002
<br><b>From:</b> Paul F. Stack
<br><b>To:</b> Tom 7
<br><b>Cc:</b> Steve Kuhlman (VP Sales & Marketing, Agfa Monotype),
Lawyers <br><b>Subject</b>: Cease and Desist Letter
<p>This office represents The Monotype Corporation and International
Typeface Corporation. I have previously written to you about the
computer software program which you are offering from the web site owned
and operated by Carnegie Mellon University which allows a party to alter
the embedding bits preset on TrueType fonts by many font manufacturers,
including my clients. I have informed you that your conduct violates the
copyright law. I have discovered today that you are still offering this
program. Demand is made upon you to immediately cease and desist your
unlawful conduct. If you are still offering your program by 5 pm,
Central Daylight Time, on April 18, 2002, we will take such action against
both you and Carnegie Mellon University as we deem appropriate without
further notice to you.
<p>Paul F. Stack
<br>Stack & Filpi Chtd.
<br>...
<br>Chicago, IL
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 18 April 2002
<br><b>From:</b> Tom 7
<br><b>To:</b> Lawyers, Steve Kuhlman (VP Sales & Marketing, Agfa
Monotype) <br><b>Subject</b>: Re: Cease and Desist Letter
<p>I have no reason to believe that I am violating your client's
copyright. I feel strongly about free speech issues, and it upsets me to
be bullied by lawyers -- not to mention the fact that I and others use
this program in the totally legal process of creating free fonts.
Therefore, I do not intend to remove the program unless you provide
convincing arguments that I am breaking the law, or unless ordered to do
so by the court. (And if you intend to take me to court, you might as well
begin developing legal arguments now.)
<p>Please do not e-mail me again unless you intend to explain specifically
how I am violating Monotype/ITC copyright.
<p>(Steve, do you really want to sue a student designer and a university?
Trying to sue a program out of existence usually only causes it to become
more popular (cf. DeCSS) on the internet. Several of my colleagues,
including faculty members, have already volunteered to host the program on
their websites in order to help. I also imagine that suing a popular* free
font designer will not be such good publicity for Agfa Monotype or ITC
among the community of young designers!)
<p> - Tom
<p>PS. I have forwarded your letter to chillingeffects.org, an Electronic
Freedom Foundation clearing house for Cease and Desist letters.
<p>* Search google for "truetype fonts", and notice that my page is ranked
4th and 9th; your sites *pay* for the privilege to be listed on the first
page!
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 22 April 2002
<br><b>From:</b> Paul F. Stack
<br><b>To:</b> Tom 7
<br><b>Subject:</b> "Embed"
<p>Mr. Murphy. You have asked for an explanation of the law regarding your
program "embed." A memorandum is attached. I will check tomorrow to
confirm that your program has been removed.
<p><i>(attached memo converted from WORD format)</i>
<p>You have requested further information regarding the basis for our
clients' cease and desist demand. The computer software program that you
are offering on your website, identified as "embed," violates
copyright law. Section 1201(a) of the 1998 Digital Millennium
Copyright Act ("DMCA"), effective October 28, 2000, states, in part, "No
person shall circumvent a technological measure that effectively controls
access to a work protected under this title." 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 treatment, <i>with the authority of the
copyright owner</i>, to gain access to the work. One "circumvents a
technological measure" when he uses any means to descramble a work, to
decrypt an encrypted work, or otherwise, to avoid, bypass, remove,
deactivate, or impair a technological measure, without the authority of
the copyright owner.
<p>Our clients, The Monotype Corporation, International Typeface
Corporation, and Agfa Monotype Corporation own copyrights in numerous
computer programs that generate digital typeface fonts. They, along with
many other type designers, invest large amounts of time and
energy in creating digitized typeface designs ("fonts"). They earn money
by licensing copies of these fonts to third parties under
end-user license agreements.
<p>TrueType fonts have embedding "bits" which allow the creator of the
font to decide the level of embedding that will be permitted. There are
four different embedding bits: (1) no embedding, (2) embedding for view
and print only, (3) embedding for view, print and editing, and (4)
installable embedding.. Many small type design houses have set their
embedding bits so that embedding of any kind is not
permitted. Monotype and ITC allow end users to transmit embedded fonts for
print and preview only, but do not permit editable
embedding. Editable embedding and installable embedding, as you know,
permits a person to transmit a copy of a font to another party simply by
using it in a document and transmitting the document over the
Internet or by copying on a floppy disk. The party receiving the font
thereafter has a complete, useable copy of the font. An embedding bit is a
"technological measure" that "effectively controls access" to their
copyrighted works under the DMCA.
<p>"Embed" is a software program that enables the end user to remove the
embedding bits preset by type designers and type foundries. By using
"embed," an end user can change the preset embedding bits on a copyrighted
font from restricted, print and preview, or editable
embedding to installable embedding. By circumventing the preset
embedding bits, "embed" circumvents a technological measure set by the
copyright owners on their copyrighted data. Use of "embed" on a
copyrighted font is a clear violation of the DMCA.
<p>You previously received notice that your software program violates my
clients' copyrights. Continued distribution of "embed" is an
intentional violation of the DMCA, and subjects you to actual or
statutory damages. Statutory damages allow a recovery between $200 and
$2,500 per act of circumvention, along with attorneys fees, costs and
other items of damages. We also have a right to seek an injunction against
you to prohibit you from violating our clients' rights. Demand is again
made upon you to cease and desist the distribution of your program.
<p>Dated: April 22, 2002
<p>
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 25 Apr 2002
<br><b>From:</b> Tom 7
<br><b>To:</b> Paul F. Stack
<br><b>Subject</b>: re: "Embed"
<p>I have reviewed your claims and have concluded that they are not
applicable, and that Embed does not violate your clients' copyrights. My
reasoning is included below.
<p><p>1. Background
<div class=indent>
<p>The TrueType format is a public specification developed by Apple
Computer and Microsoft Corporation. Anyone can write programs that
manipulate or create TrueType fonts. There are dozens of TrueType
utilities being published and thousands of free fonts created by
designers available on the internet. Copyrights for these fonts are
held by a diverse set of authors, including commercial font foundries,
"shareware" font authors, and hobbyists.
<p>I (Tom Murphy), the author of more than sixty TrueType fonts,
developed a program called "embed" in 1997 to set the embedding bits on
fonts that I developed. I released this program into the public domain
as a service to the community of TrueType developers.
<p>Embedding bits do nothing to keep consumers from copying fonts. It
is trivial to copy the font file wholesale onto a floppy disk or as an
e-mail attachment along with a document that uses it.
<p>Furthermore, most applications do not permanently install embedded
fonts on the recipient's machine, regardless of the state of
the embedding flag. This presents another practical obstacle to using
Embed for font piracy.
<p>Following are specific objections to the claims by Monotype/ITC.
</div>
<p>2. Embedding bits are not a "technological measure that effectively
control access to a work" under 17 U.S.C.
<div class=indent>
<p>A. Embedding bits do not fit the definition in 1201(a)(3)(B).
<div class=indent>
<p>Embedding bits do not require the application of information,
process, or treatment in order to gain access to the work. Fonts are
fully usable, and copyable, regardless of the status of the embedding
bits.
<p>Embedding bits suggest to *other programs* that the font may not be
embedded. They do not control access to the work.
<p>Because the TrueType specification is a published file format,
anyone can make use of the format and write programs that
manipulate font data. I have the same author's rights as Monotype to
make use of the documented features of that specification.
</div>
</div>
<p>3. Embed is not a "circumvention device" as defined under 17 U.S.C.
<div class=indent>
<p>A. Embed is exempt under 1201(a)(2)(B), because it has substantial
commercially significant use other than circumvention. In particular,
it is used by font designers (including the author) to set the
embedding bits on font files for which they own the copyright.
This is not "circumvention" (1201(a)(3)(A)) because it is done
with the authority of the copyright holder.
<p>B. Embed is not "primarily designed or produced" for the purpose of
circumvention. Rather, it was designed for font designers to set the
embedding bits on font files for which they own the copyright.
</div>
<p>4. Embed has substantial non-infringing use
<div class=indent>
A. Because Embed has substantial non-infringing uses (see above
paragraph), it is outside the reach of 1201(a)(2). See Sony Corp. v.
Universal City Studios, Inc., 464 U.S. 417 (1984).
</div>
<p>5. No circumvention has taken place
<div class=indent>
<p>A. Claims under 1201(a)(1)(A) are entirely baseless, as no
circumvention has taken place.
<p>Since the enactment of the DMCA, I have only ever run embed on
fonts for which I own the copyright. Agfa Monotype/ITC have not
provided any evidence to the contrary.
</div>
<p>6. DMCA additions to 17 U.S.C. are unconstitutional
<div class=indent>
A. Attempting to use the DMCA to restrict dissemination of a
computer program is prohibited by the First Amendment, because
computer code is protected speech.
</div>
<p>I trust that this clears up the issues between me and your clients.
<p><br><p>Tom
<p><br>
<p class=gentle>A few days after I got this mail and posted it here, word
made it to <b><a
href="http://slashdot.org/article.pl?sid=02/05/01/2026234";>slashdot</a></b>
and <b><a href="http://news.com.com/2100-1023-898777.html";>CNET
news.com</a></b> and everybody got up in arms. I got cc'd on a ton of
"I'll never buy your products again!" e-mails, but also lots of offers of
support, including one from the <b><a
href=http://eff.org/>EFF</a></b>. All of the fallout caused this page to
be viewed over 13,000 times just in the week after the letter; it was the
most popular object on CMU's web server by far. If the object of this game
is to keep people from knowing about <b>embed</b>, Agfa Monotype and ITC
have definitely already lost!</p>
<p class=gentle>Just when I thought they had given up, I got another new
mail. This one is extremely long and doesn't mention fonts at
all. I'm not sure if Stack is just trying to waste my time, or give me a
law lesson, or what.</p>
<p><center><img src=../000000.gif width=300 height=2></center>
<p><b>Date:</b> 7 May 2002
<br><b>From:</b> Paul F. Stack
<br><b>CC:</b> Bill Davis (Vice President of Business Development,
Monotype) <br><b>To:</b> Tom 7
<br><b>Subject</b>: embed
<p>Dear Mr. Murphy. I received your last e-mail and noted your
citation of the Supreme Court's decision in the Sony v. Universal
Studios case. I updated a memorandum I wrote regarding Sony and its
relationship with the DMCA and would like to forward the same to you for
your review. Very truly yours, Paul F. Stack
<p><i>(attached memo converted from WORD format)</i>
<p>MEMORANDUM
<p>TO: Thomas Murphy
<br>FROM: Paul F. Stack (Stack & F)
<br>DATE: May 7, 2002
<p>RE: Copyright Issues
<p>In <i>Sony Corp. v. Universal City Studios</i>, 464 U.S. 471
(1984), owners of copyrighted television programs sued manufacturers and
distributors of Betamax video recording devices, alleging that the
defendants were contributorily infringing the copyrights in the
programs. In discussing the findings of the district court, the Court
noted that both parties:
<p class=blockquote> conducted surveys of the way the Betamax machine was
used by several hundred owners during a sample period in
1978. Although there were some differences in the surveys, they both
showed that the primary use of the machine for most owners was
'time-shifting,' -- the practice of recording a program to view it once at
a later time, and thereafter erasing it. . . . Both surveys also showed,
however, that a substantial number of interviewees had accumulated
libraries of tapes. Sony's survey indicated that over 80% of the
interviewees watched at least as much regular television as they had
before owning a Betamax. </p>
<p>The Court began its legal analysis of the case by citing Art. I, Sec. 8
of the Constitution:
<p class=blockquote>The Congress shall have Power . . . to promote the
Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Rights to their respective
Writings and Discoveries.</p>
<p>The Court went on to note that as the text of the Constitution
makes clear, "it is Congress that has been assigned the task of
defining the scope of the limited monopoly that should be granted to
authors or inventors . . ." The Court stated:
<p class=blockquote> Because this task involves a difficult balance
between the interests of authors and inventors in the control and
exploitation of their writings, and discoveries on the one hand, and
society's competing interest in the free flow of ideas, information, and
commerce on the other hand, our patent and copyright statutes have been
amended repeatedly. </p>
<p>The Court stated that "the law of copyright has developed in response
to significant changes in technology," and noted that the invention of the
printing press gave rise to the original need for copyright
protection. Citing the Copyright Act, the Court identified the five
exclusive rights of copyright owners, two of which are relevant here:
<p class=blockquote>
(1) to reproduce the copyrighted work in copies . . .;
</p>
<p><center>* * *</center>
<p class=blockquote>
(3) to distribute copies . . . of the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending. </p>
<p>The Court noted that the copyright owners did not seek relief against
the purchasers of the Betamax machines and, indeed, the Court noted that
the copying of the plaintiff's programs represented only a "small portion"
of the total use of the machines. Nevertheless, the Court held that the
plaintiffs had standing to charge Sony with contributory infringement. "To
prevail," the Court noted, "they have the burden of proving that users of
the Betamax have infringed their copyrights and that Sony should be held
responsible for that infringement."
<p>The Court noted that the Copyright Act, unlike the Patent Act, does not
expressly render anyone liable for infringement committed by
another. Nevertheless, the Court stated that "vicarious liability is
imposed in virtually all areas of the law" and that concept of
contributory infringement is:
<p class=blockquote> merely a species of the broader problem of
identifying the circumstances in which it is just to hold one
individual accountable for the actions of another.
</p>
<p>On the facts before it, the Court stated that:
<p class=blockquote>If vicarious liability is to be imposed on
petitioners in this case, it must rest on the fact that they have sold
equipment with constructive knowledge of the fact that their customers may
use that equipment to make unauthorized copies of copyrighted
material. There is no precedent in the law of copyright for the
imposition of vicarious liability on such a theory.
</p>
<p>In summarizing its analysis of case law involving contributory
infringement, the Court stated that the question "is thus whether
Betamax is capable of commercially significant noninfringing
uses." The Court then held that the machine can be used for "private,
noncommercial time-shifting in the home," and held that the plaintiffs had
no right to prohibit other copyright holders from allowing their programs
to be time-shifted, and that unauthorized home time-shifting is legitimate
fair use.
<p>The Court noted that the plaintiffs percentage of televised
material was less than 10 percent of the total market share and that "many
producers [of copyrighted programs] are willing to allow private
time-shifting to continue, at least for an experimental time
period." Further, the record showed that owners of copyrighted sports,
religious, educational and other program actually consented to the
time-shifting copying of their programs. Indeed, Fred Rogers of
Mr. Roger's Neighborhood, testified that "he had absolutely no
objection to home taping for noncommercial use and expressed the
opinion that it is a real service to families to be able to record
children's programs and to show them at appropriate times." The Court
noted:
<p class=blockquote>If there are millions of owners of VTR's who make
copies of televised sports events, religious broadcasts, and
educational programs such as Mister Roger's Neighborhood, and if the
proprietors of those programs welcome the practice, the business of
supplying the equipment that makes such copyright feasible should not be
stifled simply because the equipment is used by some individuals to make
unauthorized reproductions of respondent's works.</p>
<p>The Court stated "in an action for contributory infringement
against the seller of copying equipment, the copyright holder may not
prevail unless the relief that he seeks affects only his programs, or
unless he speaks for virtually all copyright holders with an interest in
the outcome." The Court concluded:
<p class=blockquote>First, Sony demonstrated a significant likelihood that
substantial numbers of copyright holders who license their works for
broadcast on free television would not object to having their
broadcasts time-shifted by private viewers. And second, respondents failed
to demonstrate that time-shifting would cause any likelihood of nonminimal
harm to the potential market for, or the value of, their copyrighted
works. The Betamax is, therefore, capable of substantial noninfringing
uses. Sony's sale of such equipment to the general
public does not constitute contributory infringement of respondent's
copyrights.
</p>
<p>In October 1998, the Digital Millennium Copyright Act ("DMCA") was
enacted. The DMCA amended the Copyright Act in a variety of ways,
including the addition of a Chapter 12, entitled "Copyright Protection and
Management Systems." Section 1201 ("Circumvention of copyright protection
systems") provides in subsection (a)(1)(A):
<p>No person shall circumvent a technological measure that effectively
controls access to a work protected under this title. The prohibition
contained in the preceding sentence shall take effect at the end of the
2-year period beginning on the date of the enactment of this
chapter [October 29, 2000].
<p>Section 1201(a)(2) of DMCA provides that:
<p class=blockquote>No person shall manufacture, import, offer to the
public, provide, or otherwise traffic in any technology, product,
service, device, component, or part thereof, that --</p>
<p class=blockquote>(A) is primarily designed or produced for the
purpose of circumventing a technological measure that effectively
controls access to a work protected under this title;</p>
<p class=blockquote>(B) has only limited commercial significant
purpose or use other than to circumvent a technological measure that
effectively controls access to a work protected under this title;
or</p>
<p class=blockquote>(C) is marketed by that person or another acting in
concert with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title.</p>
<p>For the purpose of Section 1201(a)(2), to "circumvent a
technological measure" means "to descramble a scrambled work, to
decrypt an encrypted work, or otherwise to avoid, bypass, remove,
deactivate, or impair a technological measure, without the authority of
the copyright owner." 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
treatment, with the authority of the copyright owner, to gain access to
the work.
<p>Section 1201(b)(1) provides:
<p class=blockquote>No person shall manufacture, import, offer to the
public, provide, or otherwise traffic in any technology, product,
service, device, component, or part thereof, that --</p>
<p class=blockquote>(A) is primarily designed or produced for the
purpose of circumventing protection afforded by a technological
measure that effectively protects a right of a copyright owner under this
title in a work or a portion thereof;</p>
<p class=blockquote>(B) has only limited commercially significant
purpose or use other than to circumvent protection afforded by a
technological measure that effectively protects a right of a copyright
owner under this title in a work or a portion thereof; or</p>
<p class=blockquote>(C) is marketed by that person or another acting in
concert with that person with that person's knowledge for use in
circumventing protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in a
work or a portion thereof.</p>
<p>For the purpose of Section 1201(b)(1), to "circumvent a
technological measure" means "avoiding, bypassing, removing,
deactivating, or impairing a technological measure, without the
authority of the copyright owner." A technological measure
"effectively protects a right of a copyright owner under this title" if
the measure, in the ordinary course of its operation, prevents, restricts,
or otherwise limits the exercise of a right of a copyright owner under
this title. Finally, the DMCA provides that it has no
effect upon vicarious or contributory infringement of copyrights.
<p>In <i>RealNetworks, Inc. v. Streambox, Inc.</i>, 2000 WL 127311 (W.D.
Wash. 2000), RealNetworks offered a product which allow
customers to access audio and video content over the Internet through
"streaming." Under streaming, "no trace of the clip is left on the
consumer's computer, unless the content owner has permitted the
consumer to download the file." In this regard, streaming is
differentiated from downloading, "a process by which a complete copy of an
audio or video clip is delivered to and stored on a consumer's computer."
The RealNetworks products were the "RealProducer,"
"RealServer," and "RealPlayer." Owners of copyrighted content could place
their content in RealNetwork's format. Once in that format, the content
(called RealMedia) can be placed in a RealServer to send that content to
consumers. To download streaming content distributed by a RealServer, a
consumer must use RealPlayer, a software program that resides on a
consumer's computer and must be used to access and play a streaming
RealMedia file.
<p>The RealNetwork system used a "secret handshake," an authentication
sequence which only RealServers and RealPlayers know. In addition,
RealNetworks used a second security measure called the "Copy Switch,"
described by the court as:
<p class=blockquote>a piece of data in all RealMedia files that
contains the content owner's preference regarding whether or not the
stream may be copied by end-users. If a content owner turns on the Copy
Switch in a particular RealMedia file, when that file is
streamed, an end-user can use the RealPlayer to save a copy of that
RealMedia file to the user's computer. If a content owner does not turn on
the Copy Switch in a RealMedia file, the RealPlayer will not allow an
end-user to make a copy of that file. The file will simply 'evaporate' as
the user listens to or watches it stream.</p>
<p>Through the use of the Secret Handshake and the Copy Switch, owners of
audio and video content can prevent the unauthorized copying of their
content if they so choose.
<p>The court held that content owners who choose to use the security
measures "are likely to be seeking to prevent their works from being
copied without their authorization." Many of the copyright owners
stated that if users could circumvent the security measures and make
unauthorized copies of the content, they likely would not put their
content up on the Internet.
<p>The defendant, Streambox, produced three products, the Streambox VCR,
the Ripper, and the Ferret. The court held that the VCR mimics a
RealPlayer and circumvents the Secret Handshake. "In other words, the
Streambox VCR is able to convince the RealServer into thinking that the
VCR is, in fact, a RealPlayer." Unlike the RealPlayer, however, the
Streambox VCR allows the "end-user to download RealMedia files even if the
content owner has used the Copy Switch to prohibit
end-users from downloading the files."
<p>The court held "[g]iven the circumvention capabilities of the
Streambox VCR, Streambox violates the DMCA if the product or a part
thereof: (i) is primarily designed to serve this function; (ii) has only
limited commercial significant purposes beyond the circumvention; or (iii)
is marketed as a means of circumvention. . . . These three tests are
disjunctive. . . . A product that meets only one of the
three independent bases for liability is still prohibited..
<p>Streambox asserted as its primary defense that the VCR had
legitimate uses, to allow consumers to make "fair use" copies of
RealMedia files, notwithstanding the access control and copy
protection measures. Rejecting this defense, the court states that by
using the security measures and Copy Switch, "copyright owners have made
clear they do not want" their content copied. For this reason, the court
held the "fair use" defense in Sony was not applicable. The court
reasoned:
<p class=blockquote>The Sony decision turned in large part on a
finding that substantial numbers of copyright holders who broadcast their
works either had authorized or would not object to having their works
time-shifted by private viewers. . . . Here, by contrast,
copyright owners have specifically chosen to prevent the copying
enabled by the Streambox VCR by putting their content on RealServers and
leaving the Copy Switch off.</p>
<p class=blockquote>Moreover, the Sony decision did not involve
interpretation of the DMCA. Under the DMCA, product developers do not have
the right to distribute products that circumvent technological measures
that prevent consumers from gaining unauthorized access to or making
unauthorized copies of works protected by the Copyright
Act. Instead, Congress specifically prohibited the distribution of the
tools by which such circumvention could be accomplished.</p>
<p>In finding liability under the DMCA, the court quoted with approval the
following passage from 1 <i>Nimmer on Copyright</i> (1999 Supp.),
§12A.18[B]:
<p class=blockquote>. . . those who manufacture equipment and products
generally can no longer gauge their conduct as permitted or forbidden by
reference to the Sony doctrine. For a given piece of machinery
might qualify as a stable item of commerce, with a substantial
noninfringing use, and hence be immune from attack under Sony's
construction of the Copyright Act -- but nonetheless still be subject to
suppression under Section 1201.</p>
<p>In <i>Universal City Studios, Inc. v. Reimerdes</i>, 111 F.Supp.2d 294
(S.D.N.Y. 2000), <i>aff.d</i>, 273 F.3d 429 (2d Cir. 2001), eight motion
picture studios distributed their copyrighted moves on DVDs and protected
them from copying by using an encryption system called
CSS. These encrypted DVDs may be viewed only on players and computer
drives equipped with licensed technology that permits the devices to
decrypt and play -- but not to copy - - the motion pictures.
<p>A group of hackers devised a program called DeCSS that circumvented the
CSS protection system. The defendants quickly posted DeCSS on
their Internet web site, prompting the suit. Defendant Eric Corely was the
publisher of 2600: The Hacker Quarterly, which is something of a bible to
the hacker community. Prior to the commencement of the suit, Corely posted
the source and object code for DeCSS on the web site (www.2600.com).
<p>The defendants asserted that "DeCSS was not created for the purpose of
pirating copyrighted motion pictures. Rather, they argue, it was written
to further the development of a DVD player that would run
under the Linux operating system, as there allegedly were no Linux
compatible players on the market at the time." In discussing this
defense, the court stated:
<p class=blockquote>As noted, Section 120(a) of the DMCA contains two
distinct prohibitions. Section 1201(a)(1), the so-called basic
provision, 'aims against those who engage in unauthorized
circumvention of technological measures . . . . [i]t focuses directly on
wrongful conduct, rather than on those who facilitate wrongful
conduct . . . ." Section 1201(a)(2), the anti-trafficking provision at
issue in this case, on the other hand, separately bans offering or
providing technology that may be used to circumvent technological
means of controlling access to copyrighted works. . . . .</p>
<p class=blockquote>As the earlier discussion demonstrates, the
question whether the development of a Linux DVD player motivated those who
wrote DeCSS is immaterial to the question whether the defendants now
before the Court violated the anti-trafficking provision of the DMCA. . .
.</p>
<p>In discussing the defendant's claim of "fair use," the court stated:
<p class=blockquote>Sony does not apply to the activities with which
defendants here are charged. Even if it did, it would not govern
here. Sony involved a construction of the Copyright Act that has been
overruled by the later enactment of the DMCA to the extent of any
inconsistency between Sony and the new statute.</p>
<p class=blockquote>The question here is whether the possibility of
noninfringing fair use by someone who gains access to a protected
copyrighted work through a circumvention technology distributed by
defendants saves the defendants from liability under Section 1201. But
nothing in Section 1201 so suggests. By prohibiting the provision of
circumvention technology, the DMCA fundamentally altered the
landscape. A given device or piece of technology might have "a
substantial noninfringing use, and hence be immune from attack under
Sony's construction of the Copyright Act--but nonetheless still be subject
to suppression under Section 1201. Indeed, Congress explicitly noted that
Section 1201 does not incorporate Sony.</p>
<p>The court enjoined the further distribution of DeCSS.
<p><center><img src=../000000.gif width=300 height=2></center>
<p>To illustrate how simple this program is (in the style of Dave
Touretzky's <b><a
href=http://www.cs.cmu.edu/~dst/DeCSS/Gallery/>Gallery</a></b>), I leave
you with the following haiku explaining how it works:
<p class=haiku>
The OS/2 chunk
<br>has a bit for embedding.
<br>Set it to zero.
</p>
<table width=100%><tr>
<td><center><font face="Verdana,Arial,Helvetica" size=-1><B>[ <a
href="http://radar.spacebar.org/f/a/weblog/comment?n=1&i=350";>Leave your
Comments</a> ]</b></font></center></td> <td><center><font
face="Verdana,Arial,Helvetica" size=-1><B>[ <a
href="http://www.andrew.cmu.edu/~twm/embed/";>Download Embed</a>
]</b></font></center></td> <td><Center><font
face="Verdana,Arial,Helvetica" size=-1><B>[ <a
href="http://anti-dmca.org/faq.html";>More DMCA info</a>
]</b></font></center></td> </table>
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--
B�rbara M. Figueirido
Bariloche - R�o Negro - Argentina
e-mail: [EMAIL PROTECTED]
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