Legal Docs for RIAA v. Students’ File-Sharing Services

As reported elsewhere, the RIAA is suing several students for running “Napster-like” services.  You can find the legal complaints here.

Quick Links

Rick Klau took notes at a recent Judge Posner speech on IP (via Bag and Baggage)

Also, from CNet, “Webcasters, RIAA Propose New Royalties” – supposedly, this mostly applies to large webcasters….  I’ve completely lost track of what’s happening with small webcasters since November. Anyone want to point me to the latest details?  Was there some final agreement?

Revised Model for Super DMCAs

[Updated: 11:41 PM]

Professor Felten has a revised version of the model for the Super DMCAs. 

Quick analysis of some of the changes:

1.  It does improve the bit about concealing the destination and origin of a communication.  The problem is, it still relies on the notion of consent and authorization, which might have some exceptions. But, since that part is mainly premised on notions of consent v. theft, it’s not so scary.

2. All the problems still exist as far as replicating (and going beyond) DMCA 1201.  They added this part about multipurpose devices being ok, but that only applies to communications devices.  Even if it did apply to access devices, it wouldn’t matter because of the way it’s phrased. It still criminalizes devices that are made for the purpose of violating (a)(3).  Look, DeCSS has one “primary purpose”: circumventing CSS.  All other purposes are subordinate to that. So, just because DeCSS can be used for a number of legitimate purposes still doesn’t make it a legal “multipurpose device.”

The multipurpose device part could still relate to circumvention and digital media, though. The definition of “communication service” is broad enough to cover movies/music/et al transmissions of almost all kinds, and “communications device” could cover DRM, because the DRM is important to decryption.  Still, as noted above, if DeCSS is a communications device, it still is not a multipurpose one.

Is anyone confused by these defintions yet?  Now I really get what John was talking  about.

Update: I now retract what I said about the “concealing a communication” bit being less scary.  Given that “communications service provider” and “communications device” remain vague, it’s still pretty dangerous. Again, part of the dangers come from the fact that you need the express consent and authorization for the action you’re concealing. The definitions themselves still need to be narrowed.  (Can they be? We’re dealing with incredibly general purpose technologies.)

Comments on Gun Control and DMCA Paper

(I cannot believe this paper was wrapped in DRM.  Try quoting from it – I can’t use the text tool; can you?)

Unfortunately, this paper is pretty flawed.  It’s a good try, but it’s an implausible and unworkable solution, imo.

His policy solution is this: 1) Like gun dealers, all circumvention technology dealers will have to be licensed by the government and will have to keep records of who they’ve sold their products to.  2) You’re not allowed to distribute circumvention software over the Internet; you’re only allowed to distribute serial-numbered/fingerprinted hardware in a face-to-face transaction. 3) Just like we prohibit certain criminals from buying guns, we should ban sales of circumvention technologies for people likely to abuse them. Because young people are most likely to not understand copyright law, use college networks, and are more prone to piracy, we should restrict circumvention to those over 21.

The author only considers drawbacks from the perspective of copyright holders.

Here’s the main problem: The whole idea behind updating copyright law for the digital age is the premise that it actually is a digital age.  That means digital media is going to be packaged and transferred in digital forms; computers and the Internet are going to play a huge role in the distribution and use of copyrighted works.   It’s also an age where many more people are involved in creating the technologies involved in digital media.  So, if you’re saying that people should have to buy circumvention technology in a face to face transaction and not download it, you’re updating the laws using an old framework.  You’re not seeing that the use of technology and copyrighted works has fundamentally shifted.  By designing this proposal by the old rules, the author makes this proposal hardly plausible.

Moreover, this proposal won’t eliminate the chilling effect on technology creators.  It creates a huge barrier-to-entry that is insurmountable for most hobbyists programmers. While hobbyists are crucial in software and technology innovation , I doubt the same is true for guns. Furthermore, creating hardware circumvention  is much more expensive and laborious than creating software. Most current circumvention occurs through software, and I doubt that will change. 

Also, the prohibitions on youth use unduly harm people who have done absolutely nothing wrong.  I don’t get why the age is 21 and not 18, and, I don’t find his reasoning for the prohibitions compelling.  First, most people don’t understand copyright, not just youth. In fact, youth might understand it better than most people because they’ve grown up in a post-Napster world. Second, as broadband becomes more available, his second reason becomes less justifiable. Third, I doubt most youth download music because they don’t have enough money – they do it for convenience.   All in all, I think that targeting everyone under 21 is far too sweeping.

In general, this proposal is hardly an improvement over the DMCA. Sure, we get legal circumvention tools. But who’s actually going to create them? And who’s going to bother using the proper channels to get them? This proposal creates a legal market for circumvention tools that is too far removed from what people are used to; it’s simply not realistic.