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State-Level DMCAs on the Way
Posted by Ren Bucholz on Friday, March 28 @ 02:46:40 EST Digital Millennium Copyright Act
And they're worse than the one you know and love. The MPAA has been distributing a one-pager to state governments explaining why they should pass legislation to combat piracy. This broadsheet claims that "no one will pay for cable television or movies when they are available for free on the Internet" and the damages would be hallucinatory and fabricated "too enormous to calculate."

[Note that this is the industry which claims that the VCR costs them $3.5 billion every year]

Eight states have taken the bait and are contemplating awful, incoherent legislation to deal with this 'problem.' Ed Felten writes:
"Both bills would flatly ban the possession, sale, or use of technologies that "conceal from a communication service provider ... the existence or place of origin or destination of any communication". Your ISP is a communication service provider, so anything that concealed the origin or destination of any communication from your ISP would be illegal -- with no exceptions.

If you encrypt your email, you're in violation, because the "To" line of the email is concealed from your ISP by encryption. If you use a secure connection to pick up your email, you're in violation, because the "From" lines of the incoming emails are concealed from your ISP by the encrypted connection."
Here are the Texas and Massachusetts bills.
 
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Re: State-Level DMCAs on the Way (Score: 1)
by HowardGilbert on Friday, March 28 @ 09:07:12 EST
(User Info | Send a Message) http://www.yale.edu/pclt
At the ISP level, the "origin or destination" of any communiction is the two IP addresses in the IP header. The content of the message isn't at issue because: 1) the ISP just routes and isn't supposed to read my content, 2) the return address on E-Mail or paper mail is a box you can use to write back to me and not necessarily the location from which the message was sent (I certainly do not put a return address of the post office if I mail the letter from the counter, nor when I send E-Mail from a hotel room do I have to put the hotel in the "from:" field). He also says in the linked text that a home firewall router that does NAT would be illegal, although last time I looked the home network is all devices "at my house" as far as the ISP is concerned and this law doesn't make it illegal if a computer in my kitchen appears to be in my living room. As to the post here, this is a law about stealing broadband service the way some people steal cable TV with a pirate set top box. It has nothing to do with DMCA because it has nothing to do with content copyrighted or not.

Without arguing for or against the bill, we can read between the lines and explain the technology. Cable TV modems, like Ethernet and any other LAN technology, broadcast all messages to all devices in an area. This means, of course, that someone with a slightly different cable modem can watch everything you or anyone else in the neighborhood are getting. It can't watch what you are sending because the uplink channel is filtered to be outgoing and never incoming (although you might be able to remove the filter at the side of your house). The implication here is that if you don't subscribe to a broadband service, you could get a device that scans for and finds the IP address of one of your neighbors, and then generates packets with the same orgin IP address but some different range of TCP port numbers. The reply packets come back to the address, and are broadcast throughout the neighborhood. All the ordinary cable modems drop the packets that don't belong to them, except for the modem at your neighbor's home which sends them on to his computer. His computer recognizes that the port numbers don't correspond to any active TCP session and discards them as being in error. However, your special device picks everything up and also forwards the packets to your computer which accepts the port numbers and receives the data. So you get broadband service you aren't paying for, and the ISP thinks that your traffic is actually coming from your neighbor's house. Plus, you have a nifty device that lets you spy on everything that everyone else in the neighborhood is seeing.

It is not hard to explain how technology works and what it means. Before rushing off to invent conspiracy theories, it is important to actually understand how things work, what is done, and what the words really mean. There may actually be some objection to this bill, but whatever it is it has nothing to do with any of the claims made in the post. More broadly, there is a problem with the original source. Ed Felton testifies in court to the most preposterous nonsense on matters about which he has absolutely no understanding. He is some sort of crackpot, and his use as an expert witness highlights a serious flaw in the judicial process.


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Re: State-Level DMCAs on the Way (Score: 0)
by Anonymous on Friday, March 28 @ 12:13:52 EST
This seems to almost specifically target the Freenet project, which is designed to encrypt all content, mask all content creators, and obfuscate all viewers. I've been quite impressed with the latest release, but with the number of full-length movies available, I figured it was only a matter of time before Hollywood pulled something like this.


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Re: State-Level DMCAs on the Way (Score: 1)
by DavidCarroll on Friday, March 28 @ 22:53:21 EST
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(Hello - first posting here. I'm a software developer with an interest in internet law. If this is the wrong place for such a comment, please let me know.)

I read over the Massachusetts bill (I live in MA), and have a few questions / observations:

1. This replaces some existing MA laws: MGL Chapter 166 sections 42A & 42B:

http://www.state.ma.us/legis/laws/mgl/166-42A.htm
http://www.state.ma.us/legis/laws/mgl/166-42B.htm

A quick net search shows these have been used to prosecute people for theft of long-distance service. One person, for example, was convicted of stealing phone service by fooling the telco into thinking he was making a 1-800 call when he was making a long-distance toll call instead:

http://www.commonwealthpolice.com/2001%20Textbook%20Cases/Commonwealth/CommB/Comm%20v%20Bond%20375%20201.pdf

Any lawyers here know how to find out whether people in MA have been convicted under 42B, specifically its ciminalization of devices which conceal the existence, origin or destination of any telecommunication "or from any lawful authority"? (The wording is a little confusing).

2. A company that allows its employees to dial into work, run PPP (or whatever), then access the wider internet through their office account would appear to be a "Communication service provider" as defined by this law. Also, probably, any university. Wonder what the implications of this would be? Does that mean it would be criminal in MA for a student or professor to conceal from his/her university the web sites s/he visits?

3. Compare the bill's definition of an "unlawful access device" with the DMCA's definition of a prohibited device. The DMCA criminalizes devices that are primarily designed to circumvent access, plus have "only limited commercially significant purpose" beyond access circumvention. The MA bill lacks the second clause, so could it apply more broadly?

4. This phrase seems to be the most troubling: A person commits an offense if he knowingly uses a communications device...

(ii) to conceal or to assist another to conceal from any communication service provider, or from any lawful authority, the existence or place of origin or destination of any communication...

Since the bill refers to "communications" not "connections made by the communications service provider", couldn't this criminalize something like VPN (Virtual Private Network)? Consider:

- I connect to my office from my home and run VPN. My ISP sees my connection to my office, and that I am exchanging encrypted data with my office, but no more.
- I log into an office account over the private network.
- From there I remotely log into another computer somewhere on the internet, say a university account.
- The ISP sees the connection to my office account, but does not see the "communications" relayed from my house to the university account.

Similarly, I guess if I use SSL to communicate with a web site, which allows me to submit data to a second site which the ISP cannot see, I might be in trouble?

Wouldn't this also criminalize something like www.anonymizer.com?

Since the bill lacks any definition of a "communication", it isn't clear whether, in the context of the internet, they are only regulating the use (and abuse) of IP packets (e.g. preventing users from forging IP headers or intercepting IP packets) or generally regulating "communications" made with higher-level protocols running above TCP/IP.

5. What happens when the telecommunications service provider is entirely out-of-state, e.g. when I make a 1-800 call to log into an office account? (Here I am thinking of my office as being a "telecommunications service provider" as defined by the bill.)

What happens when somebody out-of-state dials into a computer in MA, runs a remote shell, then does something forbidden by MA law using

Read the rest of this comment...


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Re: State-Level DMCAs on the Way (Score: 0)
by Anonymous on Tuesday, April 01 @ 13:11:50 EST
There is also a Tennesse version of the proposed legislation. I wrote about it on my blog yesterday. Here is the link


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