bugbear-ga:
Thank you for this question regarding the Digital Millennium Copyright
Act and the possibility of prison time for a person who posts, but
does not sell, code to bypass a copyright protection system.
I will restate here the information provided in the Clarification
section and Comment section, for posterity:
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Following up on my comment below, the relevant sections of the DMCA
that you are intersted in is Section 1201. Circumvention of copyright
protection systems. Where the "grey area" is, is in the interpretation
of the wording of Section 1201.(a)(2) which states:
"(2) No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof, that--
(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls access
to a work protected under this title;
(B) has only limited commercially significant purpose or use other
than to circumvent a technological measure that effectively controls
access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with
that person with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title."
Some have argued that posting the code online constitutes a violation
of this part of the DMCA, as it is a form of "offer to the public",
for something that meets the description of (A) and (B) in that
sub-paragraph.
The defense against this that has been used to date is to draw upon
Section 1201.(g) Encryption Research, which states:
"(g) ENCRYPTION RESEARCH-
(1) DEFINITIONS- For purposes of this subsection--
(A) the term `encryption research' means activities necessary to
identify and analyze flaws and vulnerabilities of encryption
technologies applied to copyrighted works, if these activities are
conducted to advance the state of knowledge in the field of encryption
technology or to assist in the development of encryption products; and
(B) the term `encryption technology' means the scrambling and
descrambling of information using mathematical formulas or algorithms.
(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH- Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure as
applied to a copy, phonorecord, performance, or display of a published
work in the course of an act of good faith encryption research if--
(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;
(B) such act is necessary to conduct such encryption research;
(C) the person made a good faith effort to obtain authorization
before the circumvention; and
(D) such act does not constitute infringement under this title or
a violation of applicable law other than this section, including
section 1030 of title 18 and those provisions of title 18 amended by
the Computer Fraud and Abuse Act of 1986.
(3) FACTORS IN DETERMINING EXEMPTION- In determining whether a
person qualifies for the exemption under paragraph (2), the factors to
be considered shall include--
(A) whether the information derived from the encryption research
was disseminated, and if so, whether it was disseminated in a manner
reasonably calculated to advance the state of knowledge or development
of encryption technology, versus whether it was disseminated in a
manner that facilitates infringement under this title or a violation
of applicable law other than this section, including a violation of
privacy or breach of security;
(B) whether the person is engaged in a legitimate course of study,
is employed, or is appropriately trained or experienced, in the field
of encryption technology; and
(C) whether the person provides the copyright owner of the work to
which the technological measure is applied with notice of the findings
and documentation of the research, and the time when such notice is
provided.
(4) USE OF TECHNOLOGICAL MEANS FOR RESEARCH ACTIVITIES-
Notwithstanding the provisions of subsection (a)(2), it is not a
violation of that subsection for a person to--
(A) develop and employ technological means to circumvent a
technological measure for the sole purpose of that person performing
the acts of good faith encryption research described in paragraph (2);
and
(B) provide the technological means to another person with whom he
or she is working collaboratively for the purpose of conducting the
acts of good faith encryption research described in paragraph (2) or
for the purpose of having that other person verify his or her acts of
good faith encryption research described in paragraph (2)."
The DMCA can be read online at:
http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:
You can also read the "final" decision of the Librarian of Congress on
what categories qualify for the exemptions mentioned above, here:
http://www.copyright.gov/1201/anticirc.html
So, by the letter of the law, if a person is proven to be in violation
of Section 1201., then yes they can go to prison. And yes,
technically, a good prosecutor can and may successfully argue that
"merely posting code online" qualifies as such a violation. To date,
no legal precedent has been set for seeking jail time.
--------------------------------
You also asked about the interpretation of Section 1204., Criminal
offenses and penalties.
Your friend at the EFF (and thank goodness for groups like the EFF!)
is correct in that the specific wording of 1204. does require that the
accused "willfully and for purposes of commercial advantage or private
financial gain" violate 1201. or 1202. They are also correct in that
1203. Civil remedies has no such limitation; violate 1201. or 1202.,
and you are going to be sued by the injured party.
The "willfully" part can't be argued against if someone intentionally
posts the code. The "grey area" is in the second part of the
limitation. The prosecution would need to prove beyond a shadow of a
doubt that it was done "for purposes of commercial advantage or
private financial gain". So far, no one has tried to test the limits
of that clause in court when it comes to a violation of 1201. or 1202.
Groups like the RIAA have been content to use the civil remedies of
1203. to make the public aware that they aren't going to
let copyright violations occur. Ultimately, though, some prosecutor
somewhere will be convinced by an industry group to try. The most
likely approach that they would take is to claim that the fame and
notoriety derived from posting the information does directly lead to
either commercial advantage or private financial gain for the
individual, in the form of improved employment or barter position.
Yes, it's a stretch, but, in my opinion, no more a stretch than to
claim that an elderly grandmother is civilly liable for copyright
violations simply because the RIAA claims to have traced copyrighted
materials to an IP address that supposedly was assigned to a computer
using her ISP account at that time based on unbonded records! That's
why we need groups like the EFF (and certain members of Congress)
around to get this law changed to specifically state what is and is
not acceptable.
However, I digress. The answer to your follow-up is, that 1204.
requires a test of improved commerical advantage or personal financial
gain; however, until this limitation is tested from several approaches
in court, it cannot be conclusively stated whether or not a person
performing the actions as described in your Question would go to jail.
It all comes down to a court-tested definition of commercial advantage
and/or private financial gain. Even if the person did not sell the
code (and merely posted it), it may still be argued that he/she did in
fact gain either commercial advantage or private financial gain as a
direct result of the action, through some other means than direct
monetary compensation.
--------------------------------
Some past news articles related to this question are:
Universal Garage Door Openers (not a violation)
http://www.wired.com/news/business/0,1367,61232,00.html
The Shift key bypass (closest to your question, but never made it to court)
http://www.wired.com/news/digiwood/0,1412,60780,00.html
DVD case where court ruled it is indeed illegal to post the info
http://www.wired.com/news/digiwood/0,1412,60179,00.html
(note that the poster did not create the code, and no jail time was involved)
The other side of the DVD case (note that Norway has no specific law
equal to the DMCA)
http://www.wired.com/news/digiwood/0,1412,61437,00.html
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So, the answer is that there is enough room in the DMCA for a
prosecutor (and possibly a judge) to intepret that someone who "merely
posts code" without directly selling it, can still be liable of a
violation of Section 1201 within the criminal limitations of 1204. To
date, no one has pushed the envelope in this direction, and public
sentiment is helping to drive the nation's lawmakers to clarify this
situation and, basically, keep us from "shooting the messenger".
--------------------------------
Search Strategy:
dmca
site:wired.com digital copyright story
://www.google.com/search?hl=en&q=site%3Awired.com+digital+copyright+story
I hope this information is useful! Please let me know if you require
additional clarification.
Regards,
aht-ga
Google Answers Researcher |
