Re: [dvd-discuss] DMCA, 'creative web surfing', and linking.

[Wendy Seltzer <wendy(at)seltzer.com>]

These examples are good illustrations of the vagueness problem of 1201, an 
argument we've raised as part of the First Amendment challenge to the law 
and its chilling effect on protected speech.

There's nothing that announces to the user when his planned access or use 
is barred by a "technological protection measure."   The statute aims to be 
technologically neutral (except for Macrovision), so instead of specifying 
particular access- and copy-control technologies that are protected, it 
gives the vague definition of  1201(a)(3)(B) and (b)(2)(B): "if the 
measure, in the ordinary course of its operation, requires the application 
of information, or a process or a treatment, with the authority of the 
copyright owner, to gain access to the work."  But the lack of 
technological definition leaves us guessing at what's prohibited.

Does knowing a URL "require the application of information ... with the 
authority of the copyright owner"?  Does knowing that port 80 provides 
webservice?  Does knowing that a particular series of bits and/or a 
particular algorithm will decrypt a file?  (and we all know the problems 
with where the "authority" comes from)

There aren't good, established norms here, and it's unlikely that courts 
would apply them consistently in any event.  At the very least, we need a 
cyber-equivalent of the "Posted. No trespassing" signs to indicate 
purported use boundaries.   That would give purchasers notice of their 
rights before sale (cf. the suit claiming copy-protected CDs are 
"defective") and allow them to make informed market choices to reject these 
products; and it would force publishers to show how far they're 
overreaching in their claims of protection.

--Wendy

At 02:39 PM 10/30/01 -0500, Noah silva wrote:
>btw...
>
>one of my "secret" urls is:
>"http://atari-source.com/~nsilva/"
>and then add "photos/" onto the end.
>
>I do this because I don't want everyone on the internet looking at
>personal photos, yet I want to be able to give out the URL to my friends
>and whomever I like without having to set up some account for them to log
>into.  I certainly wouldn't try to sue anyone over leaking or viewing it
>(obviously, or I wouldn't publish it here).
>
>   -- noah silva
>
>
>On Tue, 30 Oct 2001, Scott A Crosby wrote:
>
> > On Tue, 30 Oct 2001 Michael.A.Rolenz@aero.org wrote:
> >
> > > I've got problems with the whole notion that robots are bad things that
> > > sites should be able to stop others from using. It really comes down to a
> > > DoS aspect. Unlike a person, a robot can consume bandwidth and accesses
> > > faster than a human can and that affects the quality and access to a
> > > website. If a website wants to 'detect" a robot and terminate the
> >
> > I was careful with my robot, usually each instance only sent 5-15 queries
> > a minute. (I noted that when loading some of these pages manually with my
> > browser, it was answering 20 queries in a half-second to download the page
> > and the inline images.)
> >
> > > connection (and even refuse other connections from that IP address for a
> > > short period) that's their right but they also run the risk of making
> > > their customer's very angry. But why should the law even get involved?
> >
> > DMCA threats seems to be used when someone wants to intimidate someone
> > else to stop doing something. In that the party making the threats is
> > unhappy and just using it as a tool.
> >
> > Ergo, intimidate people who realize that '02' comes after '01'. And,
> > 'circumventing a technological measure that effectively controls access to
> > a work'?
> >
> > > There are solutions that don't involve lengthy lawsuits or jail time for
> > > offenders. But also they can't tell if I'm using a robot or just quickly
> > > opening windows or saving links to disk. Is the latter allowed but the
> > > former isn't. How can they tell? They can't really even make a case by a
> > > proponderance of the evidence . Ergo, that provides a legal defense for
> > > any anti-circumvention laws or procedures.
> >
> > I brought up the robot as a point that I was purposely configuring it to
> > not trigger the web server's access-restriction on robots. Thus,
> > 'circumventing a technological measure that effectively controls access to
> > a work'?
> >
> >
> >
> > And, a URL could be thought of as being a sort of access-control
> > technology, which was my point, thus leaking it as Noah illustrated is
> > 'circumventing a technological measure that effectively controls access to
> > a work'?
> >
> > I just mentioned these to stimulate discussion.
> >
> >
> > Scott
> >
> >

--
Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html