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More on AAP, librarians, Waco, Ruby Ridge, and the Sklyarov case



Five items follow:

1. A note from the American Association of Publishers to USACM (forwarded 
via Dave Farber's interesting-people list).
2. Matt Gaylor's response to AAP's Judith Platt about her Waco/Ruby Ridge 
reference (Judith's message is here: http://www.politechbot.com/p-02345.html)
3. A response from Mark Rosenzweig, American Library Association Councilor 
at large
4. A response from David Wagner, an assistant professor of computer science 
at UC Berkeley
5. A link to a relevant St. Petersburg Times column by Robyn Blumner

-Declan

**********

August 1, 2001
TO: U.S. ACM Public Policy Committee
FR: Allan Adler, VP for Legal and Governmental Affairs, AAP
RE: Digital Millennium Copyright Act ("DMCA")
This memorandum is intended to respond to the letter dated July 26, 2001
which was sent to AAP President Pat Schroeder by Barbara Simons and Eugene
Spafford, Co-Chairs of the U.S. Public Policy Committee of the Association
for Computing Machinery ("ACM"), regarding ACM's opposition to the
anticircumvention provisions of the DMCA.
AAP is aware that ACM has "consistently opposed" the anti-circumvention
provisions of the DMCA. During Congressional consideration of the DMCA in
1998, I recall accepting an invitation to attend a meeting of ACM's Public
Policy Committee to debate a representative of the American Library
Association regarding the merits of the then-pending legislation. Although
the ALA representative failed to participate, I used the opportunity to
have a lively discussion of differing AAP and ACM viewpoints with Committee
members.
Still, not all AAP members see eye-to-eye on every issue that AAP
addresses. AAP's support for the DMCA, however, has on many occasions been
vigorously detailed on the public record, both during the period of its
enactment and in subsequent related rulemaking proceedings and amicus
briefs. In each instance, the positions adopted by AAP were vetted through
appropriate internal channels, usually the Copyright Committee but
sometimes also through the Board or its Executive Committee. AAP's
President and CEO signs off on all press releases issued by AAP, and AAP
staff are (as a practical matter) able to act on established AAP positions
without further clearance as part of their daily activities on AAP's
behalf. AAP members are, of course, welcome to make their views known to
AAP and elsewhere whether they agree or disagree with positions that AAP
has taken.
The specific points you raise regarding the anticircumvention provisions of
the DMCA are familiar to AAP because all of them were raised and considered
during the process leading up to enactment of the statute. AAP respectfully
continues to disagree with ACM's stated positions for the following reasons:
Requiring proof of infringement or intent to infringe, as a condition for
enforcing the anticircumvention prohibitions, would nullify their purpose.
Even without the DMCA, copyright law enables legal action against
infringers. The anticircumvention provisions are supposed to be
supplementary to this protection, not merely redundant, in acknowledgment
of the enhanced risks to copyright protection posed by digital technologies
like the Internet. The DMCA does not, and need not, authorize copyright
owners to use technological measures to protect their rights; nothing in
the law has ever prevented them from doing so. But the DMCA, in light of
the WIPO Treaties' obligation to provide "adequate legal protection and
effective legal remedies against circumvention" of such technological
measures, recognizes that such measures will never provide meaningful
supplementary protection against the capabilities for flawless digital
reproduction and instantaneous digital distribution of protected works by
unauthorized users unless the technological measures are themselves
protected by law against circumvention. Otherwise, the use of technological
measures would be futile because, as we've all seen, there would
undoubtedly be constant and, inevitably, successful efforts made to break
them. Making protection of the technological measures contingent on whether
the copyright owner could prove infringement or intent to infringe would
lead to the establishment of a competitive market for circumvention tools,
and would allow individuals to expose ostensibly protected copyrighted
works to unauthorized exploitation provided that they did so without
themselves actually infringing or intending to infringe upon those
works much as Mr. Sklyarov is alleged to have done in creating software
that does not itself infringe upon the ostensibly protected "ebook" but
strips away the technological protection measures provided by Adobe so that
the "ebook" content is left vulnerable to infringement by others.
Since you apparently recognize that there is no device which is currently
capable of distinguishing "fair use" from foul, you can understand why the
manufacture, distribution, etc. of circumvention devices is illegal under
the DMCA even when, as in the case of technological measures that protect
rights of a copyright owner under copyright law (as distinct from "access
control" measures), the act of circumvention is not itself illegal. You
should also understand why, since "circumvention" is a distinct concept
from "infringement," there can be no "fair use" exception to the
anticircumvention provisions. This is not a new concept in federal law.
Similar laws supporting the use of technological measures with
prohibitions against circumvention and against trafficking in circumvention
devices were established in related contexts long before enactment of the
DMCA; see, e.g , 47 USC 553(a) (prohibiting unauthorized reception of cable
TV service, and the manufacture or distribution of equipment intended for
the unauthorized reception of cable TV service); 47 USC 605(e) (prohibiting
the unauthorized decryption of satellite cable programming signals, and the
manufacture, assembly, import, and sale of equipment used in the
unauthorized decryption of satellite cable programming). Neither of these
laws, intended to permit control over copyrighted video programming, has
any "fair use" exception. Again, it's not difficult to understand why when
one considers the practical implications of such an exception, especially
given some of the mistaken notions about "fair use" that are routinely
circulated as articles of faith in some circles.
Contrary to mistaken popular beliefs, "fair use" is a defense only against
infringement. It does not provide a right of access to any work or, perhaps
more to the point, to any particular copy of a work. Moreover, nothing in
copyright law requires a copyright owner to facilitate or, again more to
the point, to make it easy for someone to engage in any "fair use" of a
work. Similarly, nothing in the law prohibits copyright owners from making
"fair use" more difficult through the use of anti-theft measures in
connection with a particular copy of a work. If it were otherwise, "fair
use" could be invoked to justify breaking into a bookstore, library,
theater or even a private home so long as the purpose of doing so was to
make "fair use" of a particular copy of a copyrighted work found
within. People could insist on a right to enter a movie theater without
charge in order to watch a movie and, perhaps, even copy a portion of it
for the purpose of educational use or criticism. The hypotheticals can go
on and on.
Far from being "overly-broad" in its approach to "multi-use technologies,"
the standards created in the DMCA by Congress are clearer and much more
specific than the largely impractical "capable of substantial noninfringing
uses" test concocted by a closely-divided Supreme Court seventeen years ago
in the Sony case. In order for a person manufacturing or distributing a
device to run afoul of the anticircumvention standards, the device must (1)
be "primarily designed or produced for the purpose" of circumventing, (2)
have "only limited commercially significant purpose or use other than" to
circumvent, or (3) be "marketed by that person or another acting in concern
with that person with that person's knowledge for use in"
circumventing. These standards clearly do not threaten VCRs or PCs and can
hardly be characterized as traps for the unwary.
As for the exemptions from the anticircumvention provisions, well, they may
not be as broad as ACM would prefer, but AAP believes they represent a fair
attempt at balancing competing interests. The "reverse engineering"
exemption, for example, essentially codified the existing caselaw as
represented by Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th
Cir. 1992). The "encryption research" exemption broadly permits such
research, together with the use of appropriate tools, provided that
criteria for "good faith encryption research" are met. The underlying
concept of the exemption is to ensure that such research is not merely a
pretext for circumvention, and to emphasize that valuable legitimate
research can be conducted without facilitating infringement. Beyond this,
the "security testing" exemption, which focuses on circumvention to access
a computer, computer system, or computer network, was included precisely in
recognition of ACM's point that merely providing an "encryption research"
exemption would be too limiting with respect to computer security research.
As a final point, I would urge interested ACM members to carefully read not
only the actual language of the DMCA anticircumvention provisions, but also
the legislative history as set forth in the House Judiciary Committee's
Section-by-Section Analysis of the House-Passed Version of the Legislation,
105th Cong., 2d Sess. (Serial No. 6) (Sept. 1998) and the House-Senate
Conference Report on the Final Version of the Legislation, 105th Cong., 2d
Sess. (Rpt. No. 105-796) (Oct. 1998). Hopefully, these explanations of the
legislative intent behind the DMCA's provisions will help to allay some of
ACM's concerns.

**********

Date: Sat, 4 Aug 2001 15:50:26 -0400
To: jplatt@publishers.org
From: Matthew Gaylor <freematt@coil.com>
Subject: Association of American Publishers Derides Ruby Ridge & Waco types
Cc: Declan McCullagh <declan@well.com>, lisa_bowman@zdnet.com,
         politech@politechbot.com

Excerpted via http://www.politechbot.com/p-02311.html :
>  >...librarians are finding themselves the subject of rhetoric usually
>  >reserved for terrorists or revolutionaries. "They've got their radical
>  >factions, like the Ruby Ridge or Waco types," who want to share all
>  >content for free, said Judith Platt, a spokeswoman for the Association of
>  >American Publishers.

Judith,

It's a sad day in America when criticism over the shooting of an unarmed 
women with a baby in her arms by a FBI sharpshooter (Vicki Weaver shot in 
the head by FBI's Lon Horichi at Ruby Ridge) and the assault and subsequent 
inferno that killed over 80 men, women and children by government agents at 
the Branch Davidian Church in Waco, TX is considered radical.

Regards,  Matt Gaylor-

{ Judith Platt may be reached at <jplatt@publishers.org> }

[Also sent to Freematt's Alerts, thousands of subscribers worldwide.]

[Archive and subscription info at http://groups.yahoo.com/group/fa/ --DBM]

**********

Date: Sat, 4 Aug 2001 17:51:01 -0500
To: Judith Platt <jplatt@publishers.org>,
         "'declan@well.com'" <declan@well.com>
From: Mark Rosenzweig <iskra@earthlink.net>
Subject: AAP v."extremist" librarians (Waco-style)
Cc: srrtac-l@ala.org, plg-l@listproc.sjsu.edu

What follows is one ALA Councilor's reaction(mine) to the AAP's current
spokesperson re: librarians and copyright....
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Dear Ms. Platt

You wrote the letter below in reply  to Declan McCullaghs' response to
publication of your allegations about librarians ("...librarians are
finding themselves the subject of rhetoric usually reserved for terrorists
or revolutionaries. "They've got their radical factions, like the Ruby
Ridge or Waco types," who want to share all content for free, said Judith
Platt, a spokeswoman for the Association of  American Publishers...")

As you know, your quoted remarks in that recent article
http://news.cnet.com/news/0-1005-201-6545588-0.html followed the earlier,
unexpectedly yet unabashedly hostile public statement of Pat Schroeder on
behalf of the publishing industry, that, put quite simply "Librarians are
the enemy", a brief and bold characterization which was never effectively
disclaimed as the  emphatically-made, yet entirely erroneous
characterization it was.

Now you begin a reply to Mr. McCullagh, 'explaining' yourself...

"In case anyone out there is REALLY interested in the truth re the ZDNEt
story on librarians and copyright, I was quoted completely out of context."

Why wouldn't librarians "REALLY" be interested in the truth?

One truth one discerns is that you can't disguise the fact that you believe
you are, somehow, the injured party here and that your remarks, "taken out
of context", were entirely innocent.

Yet how innocent can they be when they were entirely consistent with - and
a rather grotesque elaboration of - Pat Schroeder's earlier battle cry
that, for publishers, "Librarians are the enemy"? Your saying what you did
strongly suggested to most people the continuity of that attitude in the
AAP. That's the larger "context" of your remarks as I see it.

You now say:

 >"My reference to "Ruby Ridge," while perhaps ill-advised, was
 >used metaphorically to indicate an extremist position out of the
 >mainstream--a very radical view that has been expressed in some quarters
 >(although not by any librarians of my acquaintance...)"

Your reference to "Ruby Ridge" (and Waco) was CERTAINLY "ill-advised."

It was also entirely inappropriate and distasteful. It wouldn't be fair to
use it to characterize ANY 'factions' in the library field , including
those who actually take the position you describe as "radical" and
"extremist" (you claim now that  you don't even know any such factions or
persons ).

What's "extremist" was your analogy of rational, non-violent professionals,
in this case librarians -- some holding a different philosophical point of
view than your bosses' on a contentious issue --as, on that account, IN ANY
WAY comparable to gun-toting cultists (your references to Waco, Ruby Ridge)
who were considered so dangerous (in my opinion, without justification)
that they were ruthlessly destroyed by the government!

When all is said and done, I suppose the AAP believes (and this is the
implicit meaning of your initial remarks on their behalf) that it should be
clear that anyone, any librarian "radical", who suggests that whatever the
publishing industry  feels they need to do to maximize their profits may
not necessarily be in the public interest, would deserve "metaphorically"
having their public library burned down with the "radicals'" inside, a la
Waco.

Mark Rosenzweig
ALA Councilor at large [for ID purposes only]
Councilor, SRRT/ALA (Social Responsibilities Round Table/ALA )  [for ID
purposes only]

**********

From: David Wagner <daw@cs.berkeley.edu>
Subject: FC: AAP's Judith Platt replies to Politech post, clarifies remarks
To: jplatt@publishers.org
Date: Sat, 4 Aug 2001 12:52:59 -0700 (PDT)
Cc: declan@well.com

In article <5.0.2.1.0.20010804120845.0203c210@mail.well.com> you write:
 >From: Judith Platt <jplatt@publishers.org>
 >To: "'declan@well.com'" <declan@well.com>
 >Subject: The ZD Net Story
 >Date: Mon, 30 Jul 2001 10:40:19 -0400
 >
 >[...]  My reference to "Ruby Ridge," while perhaps ill-advised, was
 >used metaphorically to indicate an extremist position out of the
 >mainstream--a very radical view that has been expressed in some quarters
 >(although not by any librarians of my acquaintance) that all computer code
 >is protected speech under the First Amendment and that no one--neither a
 >publisher nor an author, nor anyone else-should be able to encrypt
 >copyrighted material to protect it from unauthorized use and reproduction,
 >and expect the encryption to be viewed as any other lock used to protect
 >property. [...]

Thank you for your note.  I wanted to argue that this is hardly an
extremist position, when one considers the important differences between
everyday locks and the special privileges the DMCA accords to copy
protection systems.

In particular, when we talk about physical locks, I am perfectly free
to break open locks on my own property (I can't cut a lock protecting
someone else's property, but I certainly can cut a lock protecting my own
property if I like).  However, when it comes to copy protection systems,
the DMCA appears to make this illegal: I am no longer allowed to break
the encryption on my own property.

One consequence of this rather strange prohibition is that it
threatens scientific research into the field of copy protection
systems, encryption, and computer security.  The study of codemaking
is fundamentally interwoven with the sudy of codebreaking: One cannot
build secure systems without knowing how they may be attacked, and this
involves trying to break our own systems to see how strong they are.
Under some readings of the law, publishing tools and techniques for
this purpose may be prohibited by the DMCA, and some researchers (such
as Prof. Felten at Princeton) have already felt the effects of the DMCA.

I am deeply concerned that the AAP's position is short-sighted and
will stunt innovation in copyright protection technology by chilling
scientific inquiry.  As a scientist working in this field, I can say
that the DMCA leaves me scared to continue working in this area.

I hope that the AAP will re-consider its position.  The AAP should
clearly distinguish circumvention for the purpose of actual copyright
infringement from circumvention in service of scientific inquiry.

-- David Wagner

Disclaimer: I am an assistant professor of computer science at UC
Berkeley, but I wrote solely in my own personal capacity as someone
interested in furthering the science and practice of computer security.

**********

From: Mark Dallara <mdallara@tampabay.rr.com>
To: declan@well.com
Subject: St. Pete Times on "Internet copyright tizzy"
Date: Sun, 05 Aug 2001 13:29:50 -0400

Declan,

The DMCA and Dmitri Sklyarov both get a mention in this column by the
former director of the Florida ACLU:

http://www.sptimes.com/News/080501/Columns/Internet_copyright_ti.shtml
Internet copyright tizzy will pass
By ROBYN E. BLUMNER
© St. Petersburg Times,
published August 5, 2001

Re,
Mark Dallara
www.xenu-city.net

**********




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