Posted on 05/27/2002 4:06:03 PM PDT by Razz
Of course, that would mean dozens of publications such as Yahoo.com and CNN.com, which carried the wire service's report, also violated the DMCA, and this very NewsForge article violated the DMCA by linking to the story. What's this quaint notion about freedom of the press in the United States? Well, under the still enforced DMCA's anti-circumvention section, it's illegal to market information to the public on how to break copy protections, and the Reuters article did just that. Under the 1998 law's sections 1201.2(a) and (c), it's illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is primarily designed to circumvent a copy protection. That's in part (a), and Reuters and its customers might be able to argue that the story wasn't "primarily" designed for that purpose. But Reuters would have a lot of trouble getting around 1201.2(c). It outlaws the manufacture, etc., etc., of any "marketed" product or service that allows users to circumvent copy protections. There's no question that Reuters marketed the story. Selling stories to its customers is the way it makes money, and several copyright lawyers suggest the "bad intent" language of those sections can easily apply to news stories. Reuters would have to be massively naïve to believe that hundreds of music-sharing fans around the wouldn't test the magic marker technique on Sony CDs as soon as they read the story. Read the Reuters description: "Monday, Reuters obtained an ordinary copy of Celine Dion's newest release 'A New Day Has Come,' which comes embedded with Sony's Key2Audio' technology. After an initial attempt to play the disc on a PC resulted in failure, the edge of the shiny side of the disc was blackened out with a felt tip marker. The second attempt with the marked-up CD played and copied to the hard drive without a hitch." As pointed out on the Free Software law email list, here's how the penalties section of the DMCA reads: "Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain ... shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense ..." How can you argue that Reuters didn't receive financial gain from this story? This potential violation of the DMCA was first pointed out on the Free Software law list today, and one Reuters employee on the list contended that it's a stretch to say Reuters marketed the story as a way to circumvent the Sony copy protection. Here's the headline from Yahoo.com, you decide if that's marketing or not: "'Copy-Proof' CDs Cracked with 99-Cent Marker Pen." In addition, 2600 Magazine has been prohibited from linking to DeCSS, the program that allows people to decode DVDs and play them on their Linux machines. If 2600.com can't even link to DeCSS in a news story, how can Reuters publish the instructions on how to defeat Sony's copy protections? We first pointed out how the DMCA conflicts with the First Amendment back in August 2001, practically daring the DMCA cops to come after us in an article called, "Does this article violate the DMCA?" We pointed out then that the DMCA, in the 2600 case and others, was pretty much pummeling the First Amendment. Of course, only a few people care about a niche Open Source news site and 2600.com. Our objections so far have raised few mainstream eyebrows. But Reuters can't have made Sony happy by publishing its article, and this may be the chance to get some heavyweight lawyers involved in a First Amendment vs. DMCA cat fight. You have to wonder if a fight is what Reuters was looking for by publishing the article. It's hard to believe that Reuters was totally ignorant of the DMCA, although the anti-circumvention sections are much more well known in Free Software and Electronic Frontier Foundation circles than in the mainstream press. Another scenario is that Reuters knows about the DMCA rules and is deciding to take its chances. Here's hoping this DMCA "violation" doesn't slip by. I'm asking Sony and law authorities, please, please, please, don't let Reuters get off when 2600 Magazine has been dragged through court for an alleged violation that was seen by tiny number of readers compared to the Reuters report. Please, Sony, Reuters has shown millions of people how to crack your copy protection, and you must take action. It's time for a true First Amendment vs. DMCA slug-fest. It's time to get all kinds of Armani-suited lawyers involved in a two-out-three falls cage match in some New York courtroom. It's time for the DMCA to get the butt-whooping it deserves from the First Amendment. It's time for the DMCA to die, in a way that's as slow and as expensive to the entertainment industry it protects as only a prolonged court fight could be.
Mea culpa. I did a search before posting ... seems as if the search function here isn't quite up to par ...
Anyway, I haven't posted at FR for awhile because I'm disgusted with what has become the prevailing attitude ... but this is potential dynamite, and closely related to FR's case ... even so, I expected very few comments, which expectation was borne out ...
From xtramsn
It looks like the renegades of the digital age are being mauled by a paper tiger. Kazaa BV, creator of the technology behind the popular Kazaa, Grokster, and early Morpheus peer-to-peer file-sharing programs, told a U.S. district court that it can no longer afford to fight a lawsuit filed by the music and motion picture industries because of the multitude of motions, pleadings, and letters landing on its doorstep.
"Plaintiffs' tactics appear to be designed not to achieve substantial justice or answer the important question of copyright law presented by this case, but rather to put its opponents out of business by sheer weight of paper," Kazaa's lawyers wrote in a filing recently submitted to the U.S. District Court for the Central District of California.
Netherlands-based Kazaa, along with fellow file-swapping services Morpheus and Grokster, have been busy battling a lawsuit from the U.S. music and motion picture industries over copyright infringement charges related to the content swapped over the peer-to-peer networks.
But while the case was set to go to jury trial October 1, Kazaa said that it can no longer afford to fight the charges.
"Kazaa has asked plaintiffs for their terms of surrender," the filing states. "Simply put, plaintiffs have run Kazaa out of business."
The company, which currently consists of two unpaid directors, said that it will accept a default judgment, which could potentially entail millions of dollars in damages.
The incident marks a setback for peer-to-peer defendants who hoped that Kazaa could potentially legitimise the technology in U.S. courts. Recently a Dutch court ruled that the company was not responsible for copyright infringement done by people using its technology.
ANOTHER VENTURE
But even while Kazaa receives a paper lashing from the powerful industry groups that have taken it to task, the company has managed to license its technology, called FastTrack, through another venture started by Kazaa founders. The new company, Blastoise, also operating under the name Joltid, recently licensed the technology to Brilliant Digital Media subsidiary Altnet, which launched a search engine on the Kazaa network earlier this week.
The Kazaa website, brand, logo, and license to the FastTrack technology is no longer a property of Kazaa BV, however, as it was sold to Australia's Sharman Networks earlier this year.
Still, the company's maneuvering has raised the ire of the entertainment industry groups that are fighting against the infringement of their copyright-protected works.
"Kazaa BV is running an international shell game," Matt Oppenheim, senior vice president of business and legal affairs at the Recording Industry Association of America said in a statement. "They have restated over and over their legal rights, and now they are running scared from having a court decide the matter because they realise that so much of what they have said in the past is simply not accurate."
CONFLICTING REPORTS
Kazaa got another pillar of defense kicked out from underneath it recently when millions of Morpheus users were blocked from the network in what the company later explained was a denial-of-service attack. One of Kazaa's main defenses all along was that, unlike Napster, it had no central servers and no way to control the network. The shutdown of Morpheus implied, however, that the peer-to-peer networks could be controlled.
After the shutdown, Morpheus switched to the open-source Gnutella technology, although it is still waging its court battle along with Kazaa and Grokster. But Morpheus is also facing financial troubles due to the suit. Executives from the company confirmed Thursday that they had to let go of their high-powered attorney because he was too costly to retain.
With the peer-to-peer defendants caught in a cash crunch, it remains to be seen how they fare against the deep-pocketed U.S. entertainment industry, and whether they will ultimately get clawed off the Net by a paper tiger
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