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Re: Group Copyright


Steve wrote:

The DMCA is not needed to enforce the WIPO treaty
(standard US copyright law did that).

I believe the DMCA is needed in that sense. Let me show why.

The following is a quote from Appendix II of the US copyright law,
entitled "Berne Convention Implementation Act of 1988":

(1) The Convention for the Protection of Literary and Artistic
    Works, signed at Berne, Switzerland, on September 9, 1886, and
    all acts, protocols, and revisions thereto (hereafter in this
    Act referred to as the "Berne Convention") are not
    self-executing under the Constitution and laws of the United

(2) The obligations of the United States under the Berne Convention
    may be performed only pursuant to appropriate domestic law.

(3) The amendments made by this Act, together with the law as it
    exists on the date of the enactment of this Act, satisfy the
    obligations of the United States in adhering to the Berne
    Convention and no further rights or interests shall be
    recognized or created for that purpose.

So, the US copyright law can not possibly enforce the WIPO treaty.
Do you see why? Let me show the detail.
Article 1 of the WIPO Treaty says:

(2) Nothing in this Treaty shall derogate from existing obligations
    that Contracting Parties have to each other under the Berne
     Convention for the Protection of Literary and Artistic Works.
(3) Hereinafter, "Berne Convention" shall refer to the Paris Act of
    July 24, 1971 of the Berne Convention for the Protection of
    Literary and Artistic Works.

So, the WIPO Treaty enforces the existing obligations with the Berne
convention. However, the US copyright law does not enforce the Berne
convention "automatically", and does not mention the rest of the WIPO
Treaty explicitly. In fact, the WIPO Treaty is only mentioned
explicitly in the DMCA. It is not necessary to go through the DMCA
to see this; the US copyright office, in its "summary" of the DMCA
(page 2) says:

Title I implements the WIPO treaties.  First, it makes certain
technical amendments to U.S. law, in order to provide appropriate
references and links to the treaties.  Second, it creates two new
prohibitions in Title 17 of the U.S. Code-one on circumvention of
technological measures used by copyright owners to protect their
works and one on tampering with copyright management information-and
adds civil remedies and criminal penalties for violating the
prohibitions.  In addition, Title I requires the U.S. Copyright
Office to perform two joint studies with the National
Telecommunications and Information Administration of the Department
of Commerce (NTIA).

So, it is the DMCA that implements/enforces the WIPO Treatie(s).

Steve wrote:

The DMCA was enacted on behalf of the large publishing concerns to
criminalize actions that were (and are!) protected right in standard
US copyright law.

The US copyright office has a plain answer to this:
(same document)

Each of the WIPO treaties contains virtually identical language
obligating member states to prevent circumvention of technological
measures used to protect copyrighted works, and to prevent tampering
with the integrity of copyright management information. These
obligations serve as technological adjuncts to the exclusive rights
granted by copyright law. They provide legal protection that the
international copyright community deemed critical to the safe and
efficient exploitation of works on digital networks.

Section 103 of the DMCA adds a new chapter 12 to Title 17 of the
U.S. Code. New section 1201 implements the obligation to provide
adequate and effective protection against circumvention of
technological measures used by copyright owners to protect their

So, the DMCA is a fulfilled duty when facing the rest of the
civilized world. Foreign countries protect our rights, we protect
their rights. It is plain good relationship to me. If we do not
recognize their rights, how can we ever hope they will recognize our
own? To turning down the DMCA means to turn down the very means for
international business, with good peace of the eBusiness and the
economy at large.

When reading the ACM declaration, I must say that in my opinion the
ACM is not seeing the full picture. Research on the security is
carried forward everywhere, and its publication is subject to exactly
the same WIPO restrictions worldwide. The ACM concern that USA will
suffer from loss of research on the matter. However, the ACM is not
taking into account that the same restrictions apply to the USA as
well as to the rest of the UN. The issue being discussed is an issue
for the WIPO, not really for the US constitution (in my opinion). But
again, I think the WIPO is doing well. The reason why the Russian
developer went to jail is that he was "selling" to the public a
software product for breaking the copyright! Making available his
research to Adobe, for example, would have awarded him the
acknowledgements of Adobe, rather than the lawsuit! It is the same
old argument about the knife: there are many ways of using it.

I think you will find that "the Debian community" is actually a
very strong supporter of copyright; that's why we have the DFSG,
and are extremely careful about evaluating the licenses of what we
distribute. There's lots of bitching about restrictive licenses, but
that's because we *do* respect copyright, if we didn't we'd distribute
the stuff regardless of license. What we (in the US, anyway) object
to is the paid enactment of laws designed to protect the financial
interests of large corporations, which is what the DMCA is all about.

It is difficult to draw the line between what is to be considered a
"technological measure" to protect copyright and what is not. The
first concern is why do we need such measures in the first place.
But I realize that as we have locks in the doors, so we have locks
for other things (Unix accounts, etc). So, preventing is better than
curing, and the prevention measure is an explicit act, like saying
"private property", and a violation of it implies intentionality,
hence the crime. So, given that there are such things like prevention
methods in the electronic world, we also need a law to enforce them.
Given the extent of the electronic world, this law also needs to be
agreed worldwide, hence the WIPO Treaty.

Now, the question is, do you protect your home, or your car, because
you are a "large corporation" and are protecting your business?
I just lock the car because it is mine.

On busineess, companies are necessarily large nowadays, and
protecting their business worldwide is a mere need. If the free
software community does not like the concept of profit, this can not
be an obligation for the rest of the world, right? There is still
freedom out there! It seems to me that the Free Software community is
going too far, in the sense that by questioning the DMCA it is now
questioning whether business for money should be legal at all. This
sounds like a non trivial philosophical revolution to me, arguing in
favour of the barter. I write a piece of code for you, and you write
a piece of code for me. I grow chickens, you grow potatoes, you give
me a big sack of potatoes for one of my chickens. Unfortunately this
approach does not work on the modern business. Doing otherwise,
really means going back to a closed (very closed) economy, I think.

Also GNU has licences that are compatible with commercial business.

But what is the real argument against the DMCA?
Is it the article 1204? Is it the punishment for the crime?

-- Jeff

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