April 3, 2003
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.)
Filed by Derek Slater at 6:08 pm under General news
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