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Re: Group Copyright

Most of Jeff Prescot's letter was off-topic for this mailing list.

I'm replying here on the slight chance that some of this is
actually relevant to this list.

Please send replies to me, personally, instead of to the list,
unless it's really something that's relevant to the list.

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

On Sat, Aug 18, 2001 at 11:34:04PM +0000, Jeff Prescot wrote:
> 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":

As of what date is this quote accurate?  [Remember that every time a
bill is passed the US Code is changed -- this is relevant even if the
copy you're working from is not updated to track this change.]

> >(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 States.

Right, this says that that the Berne Convention, and revisions
treaties such as WIPO, are not U.S. law.

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

Right, this says that the convention doesn't superceed U.S. 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.

Right, this says that copyright law is intended to satify the

> So, the US copyright law can not possibly enforce the WIPO treaty.
> Do you see why? Let me show the detail.

I see that the copy you're working from doesn't mention the WIPO by
name in Appendix II.  This is not the same as showing that there is some
failure in the current law in the context of WIPO.

> 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.

Right, this says that the WIPO doesn't cancel the Berne Convention.

> >(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.

Right, this specifically identifies what the "Berne Convention" is,
in case there's any doubt when reading those articles of the WIPO
which mention the "Berne Convention".

> So, the WIPO Treaty enforces the existing obligations with the Berne
> convention.

False.  It's a treaty, not an enforcment agency.

> However, the US copyright law does not enforce the Berne convention
> "automatically", and does not mention the rest of the WIPO Treaty
> explicitly.

Right: treaty is not law.

And, I'll agree that the text you quoted didn't mention the WIPO Treaty
explicitly.  I don't agree that this constitutes a failure to live up to
the obligations of the treaty.  There's no article in the Treaty which
says that the treaty must be mentioned by name in statutory law.

I'll agree that there could be some such failure, but you've yet
to convince me that there is one.

> 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.

Ok, so one of the many things handled in Title I is revising law
to explicitly mention WIPO.

> >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.

WIPO specifies appropriate protections on "technological circumvention".
DMCA specifies protections that may be unconstitutional.  If the
courts rule that this is so, the DMCA will obviously fail to do as
WIPO specifies.

Further, it's not been shown that existing protections against such
circumvention was inappropriate.

> >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).

Which doesn't mean that it's needed for this purpose.

> 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.
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

That doesn't answer, contradict, nor change anything Steve wrote.

> >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
> >works.
> So, the DMCA is a fulfilled duty when facing the rest of the
> civilized world.

Even if some part of the DMCA does fulfill such duty (which is very
much in doubt if those very sections are unconstitutional), that
doesn't mean that the DMCA as a whole is such a duty.

> Foreign countries protect our rights, we protect their rights.

In a limited sense, there's some truth to this.  However, your
reasoning depends heavily on an "all things are equivalent" sort
of interpretation, which I strongly disagree with.

> It is plain good relationship to me. If we do not recognize their
> rights, how can we ever hope they will recognize our own?

email is a right, a left, an uppercut to the head.  The mailer
daemon hits.

You have mail.

On the other hand, I don't recognize your right to prevent me from
thinking, and I don't hope you will recognize my right to prevent you
from thinking.

Or: I don't think you have a point here [unless you're really trying to
say that all potential rights are equivalent to all other rights?].

> 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.

Yep, that's why international business never worked before the
DMCA was passed.  That's why the U.S. eBusiness is so much
better this year than last.

Oh, wait..

> When reading the ACM declaration, I must say that in my opinion the
> ACM is not seeing the full picture.

Actually, you don't have to say that.

> Research on the security is carried forward everywhere, and its
> publication is subject to exactly the same WIPO restrictions
> worldwide.

I understand: it's all the same everywhere.

[This seems central to your thesis -- I'd advise saying it more

> 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 same treaty is not the same thing as the same rules, etc. used to
enforce the treaty.

> The issue being discussed is an issue for the WIPO, not really for the
> US constitution (in my opinion).

The WIPO does not override the U.S. Constitution.

In any event, if the DMCA fails to comply with the U.S. Constitution,
it fails to satisfy the WIPO.  [see above, re: "appropriate".]

> 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!

He was not found guilty of breaking any law.

> 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.

You're making this up.  You might want to study what really happened.

At this point you go way off topic for this list.  Just focussing on
your questions:

> Now, the question is, do you protect your home, or your car, because
> you are a "large corporation" and are protecting your business?


> 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?

false premise, and irrelevant question.

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

If you want to know, you could start by reading the material at


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