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«Hal Abelson Ken Ledeen Harry Lewis Upper Saddle River, NJ • Boston • Indianapolis • San Francisco New York • Toronto • Montreal • London ...»

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212 BLOWN TO BITS Asserting Control Beyond the Bounds of Copyright Fortress Publishers’ problem could be solved in a world of digital rights management reinforced by trusted computing, but is that something we should welcome?

For one thing, it gives Fortress a level of control over use of its material that goes far beyond the bounds of copyright law. When we buy a book today, we take for granted that we have the right to read it whenever we like and as many times as we like; read it from cover to cover or skip around; lend it to a friend; resell it; copy out a paragraph for use in a book report; donate it to a school library; open it without “phoning home” to tell Fortress we are doing so. We need no permission to do any of these things. Are we willing to give up these rights when books are digital computer files? How about music?

Videos? Software? Should we care?

Now leave to one side, for a moment, the dispute between music companies and listeners. DRM and trusted computing technologies, once standard in personal computers, will have other uses. The same methods that, in one country, prohibit people from playing unlicensed songs can, in another country, prevent people from listening to The same methods that, in unapproved political speeches or reading unapproved newspapers. Developers of one country, prohibit DRM and trusted platforms may be creatpeople from playing ing effective technologies to control the unlicensed songs can, in use of information, but no one has yet another country, prevent devised effective methods to circumscribe people from listening to the limits of that control. As one security unapproved political researcher warned: “Trusted computing” speeches or reading means that “third parties can trust that unapproved newspapers. your computer will disobey your wishes.” Another concern with DRM is that it increases opportunities for technology lock-in and anticompetitive mischief.

It is tempting to design operating systems that run only certified applications in order to protect against viruses or bogus document readers and media players. But this can easily turn into an environment where no one can market a new media player without publishers’ approval, or where no one can deploy any application without first having it registered and approved by Microsoft, HP, or IBM. A software company that poses a competitive threat to established interests, like publishers, operating system vendors, or computer manufacturers, might suddenly encounter “complications” in getting its products certified. One reason innovation has been so rapid in information technology is that the infrastructure is open: You don’t need permission to


introduce new programs and devices on the Internet. A world of trusted systems could easily jeopardize this.

A third DRM difficulty is that, in the name of security and virus protection, we could easily slip into an unwinnable arms race of increasing technology lock-down that provides no real gain for content owners. As soon as attackers anywhere bypass the DRM to produce an unencrypted copy, they can distribute it—and they might be willing to go to a lot of effort to be able to do that.

Think, for example, about making unauthorized copies of movies. Very sophisticated attackers might modify the TPM hardware on their computers, putting a lot of effort into bypassing the tamper-proof chip. Here’s an even easier method: let the TPM system operate normally, but hook up a video recorder in place of the computer display. That particular attack has been anticipated by the industry with a standard that requires all high-definition video to be transmitted between devices in encrypted form. Windows Vista implements this in its Output Protection Management subsystem, out of concern that otherwise the movie studios would not permit high-definition video to be played on PCs at all. Even that protection scheme is vulnerable—you could simply point a video recorder at the screen. The result would not be high-definition quality, but once it has been digitized, it could be sent around the Internet without any further degradation.

Content owners worried about these sorts of attacks refer to them as the analog hole, and there seems to be no technological way to prevent them.

J.K. Rowling tried to prevent unauthorized Internet copies of Harry Potter and the Deathly Hallows by not releasing an electronic version of the book at all.

That did not stop the zealous fan mentioned in Chapter 2 from simply photographing every page and posting the entire book on the Web even before it was in bookstores.

In the words of one computer security expert, “Digital files cannot be made uncopyable, any more than water can be made not wet.” There is one thing for certain: The DRM approach to copyright control is difficult, frustrating, and potentially fraught with unintended consequences. Out of that frustration has emerged a third response—along with liability and DRM—to the increasing levels of copying on the Internet: outright criminalization of technology.

Forbidden Technology The lines of text following this paragraph might be illegal to print in a book sold in the United States. We’ve omitted the middle four lines to protect ourselves and our publisher. Had we left them in, this would be a computer 214 BLOWN TO BITS program, written in the Perl computer language, to unscramble encrypted DVDs. Informing you how to break DVD encryption so you could copy your DVDs would be a violation of 17 USC §1201, the anti-circumvention provision of the 1998 Digital Millennium Copyright Act (DMCA). This section of the DMCA outlaws technology for bypassing copyright protection. Don’t bother turning to the back of the book for a note telling you where to find the missing four lines. A New York U.S. District Judge ruled in 2000 that even providing so much as a web link to the code was a DMCA violation in itself, and the Appeals Court agreed.

s’’$/=\\2048;while(){G=29;R=142;if((@a=unqT=”C*”,_)[20]&48){D=89;_unqb24.qT.@... (four lines suppressed)...

)+=P+( F&E))for@a[128..$#a]\\}print+qT.@a}’;s/[D-HO-U_]/\\$$&/g;s/q/pack+/g;eval The DMCA’s anti-circumvention rules do more than stop people from printing gibberish in books. They outlaw a broad class of technologies—outlaw manufacturing them, selling them, writing about them, and even talking about them. That Congress took such a step shows the depth of the alarm and frustration at how easily DRM is bypassed. With §1201, Congress legislated, not against copyright infringement, but against bypassing itself, whether or not anything is copied afterwards. If you find an encrypted web page that contains the raw text of the Bible and break the encryption order to read Genesis, that’s not copyright infringement—but it is circumvention.

Circumvention is its own offense, subject to many of the same penalties as copyright infringement: statutory damages and, in some cases, imprisonment.

Congress intentionally chose to make the offense independent of actual infringement. Alternative proposals that would have limited the prohibition to circumvention for the purpose of copyright infringement were considered and defeated.

The DMCA prohibition goes further. As §1201(a)(2) decrees:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that … is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [copyright].

–  –  –

supporters at the time, “I continue to believe that we must ban devices whose major purpose is circumvention because I do not think it will work from the enforcement standpoint. That is, allowing anti-circumvention devices to proliferate freely, and outlaw only the inappropriate use of them, seems to me unlikely to deter much.” In the arena of security, there is an odd asymmetry between the world of atoms and the world of bits. There are many published explanations of how to crack mechanical combination locks, and even of how to construct a physical master key for a building from a key to a single lock in the set. But if the lock is digital, and what is behind it is Pirates of the Caribbean, the rules are different. Federal law prohibits publication of any explanation of how to reverse-engineer that kind of lock.

Legislators may not have seen an effective alternative, but they crafted an awkward form of regulation that begins with a broad prohibition and then grants exemptions on a case-by-case basis. The need for exemptions became apparent even as the DMCA was being drafted. A few exemptions got written into the statute. These included permission for intelligence and law enforcement agents to break encryption during the course of investigations and permission for non-profit libraries to break the encryption on a work, but only for the purpose of deciding whether to buy it. The law also included a complex rule that allows certain types of encryption research under certain circumstances. Recognizing that needs for new exemptions would continue to arise, Congress charged the Librarian of Congress to conduct hearings to review the exemptions every three years and grant new ones if appropriate.

For instance, in November 2006, after a year-long hearing process, a new exemption gave Americans the right to undo the lock-in on their mobile phones for the purpose of shifting to a new cellular service provider. The ruling had a big impact nine months later in August 2007, when Apple released its iPhone, locked to the AT&T cellular network. Users clamored to unlock their iPhones so they could be used on other networks, and several companies began selling unlocking services. But the language of the DMCA and the exemption is so murky that, while unlocking your own phone is legal, distributing unlocking software or even telling other people how to unlock their phones might still be a DMCA violation. Indeed, AT&T threatened legal action against at least one unlocking company.

Copyright Protection or Competition Avoidance?

The DMCA’s framework for regulation is a poor match to technology innovation, because the lack of an appropriate exemption can stymie the deployment of a new device or a new application. Given the ferocity of industry 216 BLOWN TO BITS competition, there’s the constant temptation to exploit the broad language of the prohibition as grounds for lawsuits against competitors.

In 2002, the Chamberlain garage-door company sued a maker of universal electronic garage-door openers, claiming that the universal transmitters circumvented access controls when they sent radio signals to open and close the doors. It took two years for the case to finally die at the appeals court.

That same year, Lexmark International sued a company that made replacement toner cartridges for Lexmark printers, charging that the cartridges circumvented access controls in order to function with the printer. The District Court agreed. The ruling was overturned on appeal in 2004, but in the meantime, the alternative cartridges were kept off the market for a year and a half.

In 2004, the Storage Technology Corporation successfully convinced the Boston District Court that it was a DMCA violation for third-party vendors to service its systems. Had the appeals court not overturned the ruling, we might now be in a situation where no independent company could service computer hardware. It would be as if Ford Tauruses came with their hoods sealed, and it was illegal for any mechanic not licensed by Ford to service them.

Lawsuits like these earned the DMCA the epithet “Digital Millennium Competition Avoidance.” Fortunately, none of the lawsuits were ultimately successful, because the courts ruled that the underlying disputes weren’t sufficiently related to copyrighted material—it’s unlikely that Congress intended the DMCA to apply to garage doors. But in areas where copyright enters, the anti-competitive impact of the DMCA emerges in full force.

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