Section 10.4. Anticircumvention

10.4. Anticircumvention

The next stage of copyright expansion beyond direct infringement is the anticircumvention and antitools provisions of the Digital Millenium Copyright Act (DMCA). In the real world, these provisions do little to stop hard-core piracy, but they present a serious barrier to open source compatibility.

Section 1201 of the DMCA prohibits "circumvention" of technological protection measures controlling access to copyrighted works, and it bans manufacture, distribution, and trafficking in devices, products, components, or services that are promoted for, primarily useful for, or designed for circumvention of technological protection measures. Now, a copyright holder who employs a technological lock, such as simple encryption of content, gains the ability to control who and what programs or devices can unlock it, as part of the new right to control "access" to a protected work.

This is an important functional change from the world of printed books or even CDs, where anyone who purchased or borrowed the physical item had the right to use it as she choseread the last chapter first or play the CD in the car or the computer. Someone who wants to develop a new shuffle mode for CD playback, or a new ripper with better compression for transfer to a portable music player, can do so without seeking permission from the recording companies. It's the misuse of those toolssay, to copy CDs and sell the copies without authorization, that can be pursued as an infringement of traditional copyright.

Under the new anticircumvention regime, however, those who control copyrights can take their control much further. Thus, copyright holders say, and courts have agreed, anyone who develops a decoder for an encrypted format without a license is producing circumvention tools in violation of the DMCA. So, groups of copyright holders, who couldn't individually control markets, join together in licensing cartels backed by the magic of the DMCA, by which they control not only copyrights but also the surrounding player technologies.

And so it is with digital video discs. Movie studios and consumer electronics and technology companies developed the content scrambling system, a.k.a. CSS, applied it to DVDs, and declared it to be a technological protection measure. By forming the DVD Copy Control Association to license the CSS specification as a trade secret on restrictive terms, they sealed themselves a nice cartel, simultaneously protecting themselves against disruptive innovation in video players from outside of the establishment and walling off their copyrighted works against fair use copying.

The CSS encryption was trivially easy to break, once Jon Johansen and some German programmers set their minds to it. But that's beside the point, since the law protects even weak technological protection measures with the full panoply of anticircumvention and antidevice prohibitions. Even weak measures set up the law's sharp division between licensed access and unlicensed circumvention. Thus, with DeCSS and its successor code, anyone can play or rip a DVD on any platform, but with DMCA, no one can lawfully do so in the United States, or even develop code for DVD playback, without a license from the DVD-CCA.

Kaleidescape is a small company with a rich clientèleowners of hundreds of DVDs willing to pay nearly $30,000 for a DVD jukebox to organize and store them all. Kaleidescape built this machinea computer filled with massive hard drives onto which customers could rip their DVD movie collections. For its efforts to help the movie industry's best customers get more out of their purchases, Kaleidescape earned itself a lawsuit from the DVD-CCA, claiming Kaleidescape had breached its contract licensing the not-so-secret DVD trade secrets.

Kaleidescape's system, which allows the creation of persistent digital copies of the content of DVDs and allows copying of the CSS copy protection data, is not designed in a manner and does not include features clearly designed to effectively frustrate efforts to defeat the copy protection functions....For these reasons, Kaleidescape has breached the CSS license.

Without that license, even if similar information could be derived from reverse engineering and publicly available information, using it to enable DVD "access" and playback would be labeled circumvention.

As the movie studios have done with DVDs, record labels and software companies have done with multiple incompatible formats for streaming and downloadable music: Windows Media, Janus, Apple's FairPlay. Many of these have succumbed to reverse engineering of varying degrees of sophistication, from "burn it to CD and rerip," to "run it through a simulated sound-card driver," through cryptanalysis (much of it from Jon Johansen, again).

Yet, like CSS, none of the music protection measures is licensed on terms that permit open source development, nor could they be. Open source is incompatible with both their stated aim, to prevent "piracy" of content, and the unstated underlying goal of technology control. Since the essence of open source is user modification, users could easily modify in or out any particular featuresand the first to go would likely be the restrictions of digital rights management (DRM) and barriers to interoperability. Even if open source version 1.0 incorporated all the restrictions of proprietary clients, numerous versions 1.0.1 would likely disable them. Thus, anticircumvention regimes lock open source out of mainstream development of entire classes of applications to interact with these copyright cartels' media.

Of course, it's not just open source developers who need reverse engineering. Consider RealNetworks' attempt to sell music that would play on the popular iPod. Real could have transcoded downloads into standard MP3, which play on the iPod, but Real (or its record-label-relations department) wanted to include DRM on the files. So, it reverse engineered Apple's FairPlay format, in a move Real called Harmony, to encode Real files for the iPod. Apple fought back with legal and technical threats. Along with intimations that it might use the DMCA, Apple issued a statement that said, "We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real's Harmony technology will cease to work with current and future iPods." Real wasn't threatening to infringe copyrights, but to give customers a way to interchange their iPods for other devices. Once again, DRM is market protection, not copy protection.