Stanford Center for Internet and Society

There are some interesting developments in three areas I have been covering in this blog for some time now, all coming from foreign courts.

Defendant Chaffee appealed a Rhode Island District Court decision granting summary judgment to Plaintiff CoxCom, Inc. The District Court held that that Chaffee violated the Cable Communications Policy Act of 1984 Section 553 and the Digital Millennium Copyright Act by selling cable filters to cable customers and marketing them as a technology to avoid being charged for pay-per-view purchases. The filters interfered with signals from the customer’s digital cable box, thereby preventing the cable company from receiving pay-per-view billing information. On appeal, Chaffee argued that summary judgment was improperly granted, that CoxCom lacked standing to sue, and that damages and injunctive relief were improperly granted. The United States court of Appeals for the First Circuit affirmed the District Court on all issues.

I have never seen an SSRN paper receiving 1700 recorded downloads in mere three days or so. This is exactly what happened to “The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident” by Deirdre Mulligan and Aaron Perzanowski, forthcoming in the Berkeley Technology Law Journal. It is by far the most meticulous analysis of the Rootkit debacle available. Among other things, the authors propose to amend the DMCA to lodge a statutory exception that would allow both circumvention and trafficking in TPMs to the extent undertaken to investigate or eliminate protection measures that create or exploit security flaws or vulnerabilities that compromise the security of personal computers.

Prof. Niva Elkin-Koren has uploaded a paper titled Making Room for Consumer Under the DMCA, to be published soon in the BTLJ. The paper provides a terrific analysis and introduces an original perspective, proposing to perceive users of copyrighted works as participating consumers in information markets. This perspective underlies the argument for granting consumers more solid and meaningful protections within copyrights law, inter alia, a right to access cultural goods - despite DRMs. From the abstract:

Most of the world seems to know by now how New Jersey teenager George Hotz cracked last week the Apple iPhone protection lock which tethers users to the mobile services of AT&T. Thanks to Jennifer Granick and her team, what he did is probably covered by a 2006 rulemaking exemption promulgated by the Copyright Office. According to the specific exemption concerning cell phones, circumvention liability under section 1201(a)(1)(A) of the Copyright Act, to the extent it might apply to Hotz's circumvention, does not attach. It is less clear, however, whether telling everyone how to do that by posting instructions on his blog would not violate 1201(b)(1), prohibiting “trafficking” in tools that help others to circumvent TMPs. Promulgated exemptions do not apply to trafficking liability even if the actual circumvention is covered, as odd as it may sound.

A district court in Finland ruled yesterday that the Content Scrambling System (CSS) - the standard technological protection measure for movies distributed on DVDs - is “ineffective.” That means that the CSS is not covered by the Finnish anticircumvention laws. According to the story posted here by Mikko Välimäki, defendants’ attorney, it all started as a joke by some guys posting on their website instructions how to crack the CSS, then going to the police telling that they probably have just violated copyright law. To their surprise, they were taken seriously and the case reached court litigation.

The German American Lawyers Association held last Wednesday in Berlin a panel discussion titled The Current of Ideas in Cyber Society. Patrick Strauch, the German Managing Director of Sony/ATV Music Publishing (sitting rather uncomfortably in his chair as the industry's advocate vs. Prof. Larry Lessig) offered his views about some of the topics that are usually discussed in these forums. Presumably still under the impact of the rootkit disaster, Mr. Strauch expressed disillusionments about DRMs and their capacity to fulfill the promise of content control in the cyber-environment. (As if to add insult to injury, the Librarian of Congress, upon recommendations of the Register of Copyrights, declared in its recent 2006 DMCA Rulemaking - pp. 53-64 in the Register’s report of Nov. 17, 2006 - a new “rootkit exemption” allowing circumvention of such mechanisms for purpose of finding security vulnerabilities.)

Today, the Copyright Office issued new rules allowing people to circumvent technological protection measures on their cell phones in order to be able to switch carriers and use the phone on a different network.

Background:

In order to control the distribution and use of their works, copyright owners are increasingly using access and copy protection schemes in their digital works. The Digital Millennium Copyright Act (DMCA) [at 17 USC 1201] prohibits circumvention of these mechanisms, with only a few narrow statutory exemptions. However, the Copyright Office is allowed to issue new exemptions if you can prove that the statute burdens a non-infringing use and that an exemption won't overly harm copyright interests.