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New Biden Copyright Bill: Should We Care?
Posted by Robert Heverly on Monday, July 29 @ 10:56:24 EDT Copyright
I honestly can't decide if the "Anticounterfeiting Amendments of 2002" (S. 2395) bothers me or not. The bill prohibits trafficking in illicit authentication features (the House calls their similar bill, H.R. 5057, the  "Intellectual Property Protection Act of 2002"). Certainly this is no Peer to Peer Piracy Prevention Act (pdf), the kind of thing that has Dan Gillmor and a whole ton of other people all upset. This is merely a law that prohibits people from pretending something is authentic when it isn't. Don't produce and distribute fake Microsoft holograms, either with or without the softare CDs. But is that it?

Ever since I came across the revised law last week while poking around on Thomas, something has been bothering me about it. So I took a closer look. And I thought. I copied it to my desktop and opened it up occasionally. And then this morning I decided to ask for help in thinking from the readers of LawMeme, because I just couldn't put my finger on it. I needed (and, it turns out, still need) your help. But I'm getting ahead of myself.

The legislation itself certainly appears to be more appeasement of the American movie and music sectors, sponsored by Senator Joseph Biden, who has decided that copyright is really good and must be preserved (see the intro the legislation for that slant). After singing the praises of U.S. "copyright-based industries" the legislation prohibits trafficking in illicit authentication features, amending 18 U.S.C. sec. 2318

An authentication feature is any "hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the respective copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, or documentation or packaging is not counterfeit or otherwise infringing of any copyright." An illicit authentication feature (the kinds of things prohibited by the Act), are those that are 1) genuine in origin, but altered without the copyright owner's permission to induce people to accept reproductions or distributions that violate the rights of the copyright holder; 2) genuine, but have been or are intended for distribution without the authorization of the copyright holder and not in connection with the a lawfully made copy; or, 3) "appear[] to be genuine, but [are] not."

As with other bills lately, enforcement provisions include allowing the industry to take action itself, including seeking damages, and criminal penalties. So what? So you cannot make a "Microsoft" hologram or label and attach it to an illegal CD copy of the Windows XP operating system. No big surprise there, is there?

As I was sitting this morning and drafting this post, I was pleased to find that Declan McCullagh was on to the story. His article on CNet News takes it straight on, quoting DC Lawyer Stewart Baker and Wayne State Professor Jessica Litman, among others (go to Declan's article for links to the people he quotes). The commentators raise a couple of troubling prospects, but I'm disappointed to say I don't think they've found the problem. Stewart posits that, under the law, "using a black magic marker to disable copy protection features built into some recent music CDs," would violate the law. Litman worries: "Say I've got an MP3 collection and I buy a new nifty player from Microsoft that only plays watermarked content, and I forge the watermark to allow my legal MP3 collection to play . . . It is certainly the case that if I pass that around, I could be trafficking (in violation of the law)."

In both cases, I don't think so, and here's why: The definition of "authentication feature" was amended as the bill was reported out of committee. It no longer requires a "physical feature" but only a "feature." Pretty broad language. But more limiting is the definition of an "illicit authentication feature"--the thing actually prohibited by the law. That requires a few things, no matter which of the three options you operate under. The first definition requires that it be altered without the copyright holder's permission to induce a third-party to reproduce or accept distribution.

Altering your own MP3 collection to get it to play on Microsoft's rights-controlling system would not be inducing anyone to reproduce or accept it. The same holds true for the black marker trick; if your copy is legitimate, and you want to play it on a system that would not allow it to be played without the marker, I don't see the inducement there (unless inducing a computer system is considered inducing a third-party, a point to which I think we've not yet progressed). The inducement language was also added in the amendment on July 18, and seems to run counter to the idea that the bill reaches everything people are complaining about. If the original language (which had prohibited illicit authentication features that facilitated reproduction or distribution in violation of the copyright holder's rights) had been retained in that section, the argument might ring truer.

A second definition of illicit authentication feature defines it as a genuine one, but one that has been distributed without authorization of the copyright owner and not in connection with a valid copy. Again, this seems particularly inapplicable to the digital rights management technology situations that have been set out. The final definition is simply of a authentication feature that appears to be genuine, but is not. Again, I don't see how it applies in the digital rights management setting.

If the changes in the proposed law when it was reported were limited to removing the "physical" requirement from what was considered an authentication feature, I would share the concerns of the experts who have expressed them so far. Given that the proposed law forbids only illicit authentication devices, and defines that term more narrowly than it has defined "authentication feature," I'm afraid I don't see problems others have seen.

That still leaves me with my original nagging that something is going on in this legislation that I'm missing. I guess I need some additional help to see what it might be.

Any ideas?

 
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Related Links
·  Dan Gillmor
· Thomas
· 18 U.S.C. sec. 2318
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· More about Copyright
· News by Robert Heverly


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"User's Login" | Login/Create an Account | 15 comments
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First Sale (Score: 1)
by anthony_dipierro on Monday, July 29 @ 11:15:48 EDT
(User Info | Send a Message) http://slashdotsucks.com/
"the term `illicit authentication feature' means an authentication feature, that [...] (B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the respective copyright owner." Couldn't this be used to limit my right to First Sale? If I want to resell my retail copy of Windows on ebay, complete with hologram, do I have to get the authorization of Microsoft?


[ Reply to This ]

  • Re: First Sale by Anonymous (Name Withheld on Advice of Counsel) on Monday, July 29 @ 11:43:39 EDT
  • Re: First Sale by Rob_Heverly on Monday, July 29 @ 18:02:00 EDT
    • Re: First Sale by anthony_dipierro on Tuesday, July 30 @ 00:06:12 EDT
      • Re: First Sale by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, July 30 @ 23:11:12 EDT
        • Re: First Sale by anthony_dipierro on Friday, August 02 @ 15:11:37 EDT
Re: New Biden Copyright Bill: Should We Care? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, July 29 @ 14:00:43 EDT
My concern is that there is no balance for consumers; one can look at the "mod chips" for PlayStation or DVD region coding as an example.

Both of these systems reduce the functionality for a consumer, without providing any real benefit to prevent piracy. Similarly, both have been defeated in different ways.

It would seem that "fair use" needs to be formally defined prior to strengthening the content industry's hold!


[ Reply to This ]

Re: New Biden Copyright Bill: Should We Care? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, July 29 @ 20:27:07 EDT
I want music in MP3 format. I should be allowed to convert my music that I have BOUGHT to this format, without interference from anyone, to play it on my iPod. This would possibly bar me from doing so. Therefore Biden is reducing my rights, and needs to be stopped.


[ Reply to This ]

Re: New Biden Copyright Bill: Should We Care? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, July 31 @ 09:57:22 EDT
Look at (2) and (3) again:

2) genuine, but have been or are intended for distribution without the authorization of the copyright holder and not in connection with the a lawfully made copy; or, 3) "appear[] to be genuine, but [are] not."

Prohibition (2) means that if you tell anyone else how to work around DRM by in a way that involves a "genuine" authentication feature you may be in violation of the law, if the result can be taken as distributing a "genuine" watermark "not in connection with a lawfully made copy".

Prohibition (3) means that if you devise any DRM workaround that involves writing a watermark, or substitute that mimics the watermark's essential features into the data yourself in order induce the DRM-constrained equipment to read the data, then you are in violation of the law, since the extra data that you wrote into the file "appears to be genuine" to the DRM software, but isn't The law doesn't say that the feature must "appear genuine" to a human being. And it forbids such non-genuine authentication features in all circumstances whatsoever. No involvement by third parties is necessary if the authentication feature "appears to be genuine, but is not". Presumably a feature's genuineness is something that only the originator of the feature is allowed to determine.

There is also the question of standards. A string of characters appearing at the beginning of a file can be used to identify the file's format. If this identifier is claimed as an "authentication feature" by the inventor of the file format, won't it give him what amounts to an extended, perhaps perpetual, patent on the file format ? The "copyright owner" mentioned in the draft is not stated to be the owner of copyright in the data in the file. It might instead be the owner of copyright in the software that reads the file. Using the file format apart from the proprietary software for reading it would constitute "distribution without authorization" under prohibition (2) This means that no one could ever write software employing that file format until copyright in the original software employing that format expired: a 95-year term, instead of the 17-20 year patent term that would otherwise apply to a file format.

But even if we assume that judges will always interpret "copyright owner" to mean the owner of copyright in the file's content, not the owner of copyright in authentication software, the draft in its present form would still bug me. Despite the repeated mention of "copyright owner", this bill is actually a revision of trademark law. Besides showing a certain confusion on the part of its drafters over the boundaries between copyright and trademark, the draft leads me to suspect that it could evolve into a back door to perpetual copyright. Prohibitions (1) and (2) explicitly mention a copyright holder, but prohibition (3) doesn't. As suggested above, any copy of the file that contained the authentication feature would violate prohibition (3) even after the copyright in the file's content expired, unless the copy was made by the owner of the rights to the authentication feature (the owner being whoever gets to decide what is a "genuine" authentication feature.)


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