[om-list] CBDTPA: The Linux Elimination Act of 2002

Mark Butler butlerm at middle.net
Sun Mar 31 20:48:41 EST 2002


RE: NAPSTER

First of all, however questionable, the founders of Napster actually had a legal argument to stand on in court - namely the Audio Home Recording Act of 1992 provides that:

 "No copyright infringement lawsuit may be brought based on consumers' noncommercial use of digital or analog recording devices to copy prerecorded music."

(See http://www.hrrc.org/html/ahra_summary.html)

This means that the use of services like Napster to make copies of pre-recorded music is strictly legal under current law.  Essentially Congress made consumers exempt from the copyright law in this area.

Napster's theory was that they were just providing a way to facilitate consumers finding others to trade music with.  Napster's servers did not receive, store, or transmit the music, they just provided and indexing service.

However, the use of services like Napster to copy large amounts of music that the user has no intention of ever paying for is very unethical in my opinion, law or no law.

WILL A COURT ENFORCE THE CBDTPA IF IT PASSES?

Is is the legal and moral obligation of the judical branch to enforce the laws, no matter how much the individual judges may find them disagreeable.  Judges are not allowed to "legislate from the bench", i.e. do more than set precedents on the interpretation of ambiguities in the law.

The only area where modern federal judges have a bit of latitude is in applying lower laws like those passed by Congress, to the constraints of a higher law, namely the Constitution.  Since the text of the Constitution is so short and difficult to amend, the federal judges have acquired enormous authority as the arbiters of what it really means.  This is called judicial review, and federal & state laws are tossed out on a regular basis thereby.

However, an ethical judge does not take it upon himself to legislate new meanings into the Constitution, as was done in Roe v. Wade, rather than interpreting it according to its strict wording and the intent of the writers, because that it is the duty of the legislative branch or the higher *legistlative* assembly of a Constitutional Convention to do that through the means that have been provided.  To do so violates the separation of powers.

In recent years, the Supreme Court has made a considerable change back towards traditional judicial philosophy, and only very rarely legislates from the bench, though it regularly upholds bad precedents from past decisions on the principle of stare decisis, namely "let it stand".

GROUNDS FOR OVERTURNING

So getting back to the matter at hand, do the federal courts have the authority to overturn a passed CBDTPA, and if so under what grounds, i.e. what principle of the Constitution makes such a law unconstitutional?  Finally, are they likely to?

I submit that the only principles of the Constitution that have any bearing are the First Amendment establishment of freedom of speech and the tenth amendment doctrine of limited powers.  

FIRST AMENDMENT

In regard to the first, it has been argued by some that source code is a form of speech, and so should be protected by the constitution.  However, this has not helped the author or distributors of the DeCSS unauthorized open source DVD player software.  Nor does it help violators of trade secrets, copyright infringers, of persons who yell 'Fire!' in a crowded theater, all of whom are exercising a form of speech, that could conceivably be protected under the First Amendment.

Basically, the federal courts have taken upon themselves to decide in a very arbitrary manner what is and what isn't free speech.  The Supreme Court guarantees the right of of pornographers to publish material on the Internet free of any restriction.  Our local federal appeals court guarantees the right of alcohol advertisers to place billboards along Utah freeways.

But so far, none of the higher level federal courts have guaranteed the right of people to publish encryption or other contraversial software on free speech grounds.  They have also found no sympathy for authors of copy protection circumvention schemes prohibited by the DMCA (witness Dimitri Skylarov).

ENUMERATED POWERS

The other ground they could toss this law out, is the much underused doctrine of enumerated powers for the federal government.  It is because of this doctrine that nearly every federal law claims only to affect actions that cross state lines or that somehow affect interstate commerce, the regulation of which being one of the enumerated powers listed in the Constitution.  

For example, the federal Endangered Species Act claims legitimacy only because endangered species sometimes cross state lines and are so a form of "interstate commerce".  Other federal laws strain credulity on this matter even further, for example the ones pertaining to education.

The only time in recent memory a federal law has been overturned under this doctrine was when the Supreme Court denied Congress the right to prosecute all gun-related crimes commited within 1000 feet of a school.

So in short, the evidence is that the courts will likely feel a largely proper judical obligation to enforce the strict terms of a passed CBDTPA, and that it is very unlikely that they will be convinced by First Amendment or enumerated powers arguments to do otherwise.

That means that we will be completely at the mercy of the copy protection regulations the FCC devises to implement the law, which will almost certainly require every operating system to implement digital rights management (DRM) at its very lowest levels.  It is worth noting that Microsoft now has a patent on operating system implemented DRM.

NO MORE FAIR USE RIGHTS

The interesting thing about DRM is it allows publishers to effectively eliminate fair use rights - in the future no one may be able to turn the own CDs into MP3s, make screenshots or video excerpts, time shift recorded audio or video, or do anything else we have become accustomed to doing under standing law.

THE THREAT TO LINUX

The threat to Linux lies in several areas:

1. Open, freely distributed source code cannot violate other's patent rights

2. Open source code can be easily modified to disable the DRM sections. Such disabling is prohibited under the CBDTPA, but the difficulty of enforcement may entice the government to move against the distribution of open source operating systems altogether.

3. Software may be required to be certified as CBDTPA compliant before distribution, which could throw a major wrench into the open source development and testing process.

WHAT THE ENTERTAINMENT INDUSTRY SHOULD DO INSTEAD OF TURNING AMERICA INTO A COPYRIGHT POLICE STATE

The entertainment industry should spend their own money and hire the worlds best experts on digital rights management systems and come up with a protection system similar to the one used by DVDs, except properly designed this time.  For use in personal computers, it should include a hardware component, to make subversion difficult.

Then they should sell high quality pay-per-view or other similar services to end users who are willing to purchase compliant devices and simply refuse to distribute premium material to those who do not.

Why should every computer user in the world have to pay to convert their computer into a digital entertainment delivery platform?

 - Mark Butler





Lee Howard wrote:

> The bill's supporters are trying to take copyright enforcement to the next
> level like was done in the Napster lawsuit.  They want to make those who
> facilitate in any way the violation of the copyright responsible for the
> deed.  I think that Napster was doomed from the beginning because the large
> majority and bulk of its use violated copyrights.  I did not know a single
> person who used Napster in a completely legal manner (and I somehow doubt
> that such a person existed).  So, as a comparison, Napster was a massage
> parlor acting as a front for a brothel.  Of course Napster was going to
> lose its case.
> 
> Putting the bill in other words, if I were to distribute or make public a
> simple enhancement to HylaFAX which was somehow subsequently used to fax a
> copyrighted image of Mickey Mouse without legal authorization - Disney
> could have legal recourse against not only the fax sender but also me and
> the rest of the US-based development team distributing the patch or
> applications of it.
> 
> By no means do I support such a convoluted bill, but in reality, such a law
> would provide very little further protection for copyright holders and very
> little further opposition to violators even if it were passed.  Basically,
> I think it would only assist in cases like the one against Napster.
> 
> The message Mark quotes implies that all US-based open-source projects
> would be so burdened by such a law that the projects would essentially
> cease to operate in the US until the software could comply with the law.
> Frankly, I can't see politicians committing such political suicide to
> attempt to prosecute or shut down thousands of US open-source software
> developers on their own, and the law would therefore require a violated
> content owner to press charges.
> 
> I simply think that it's going to be difficult for Disney to make a case
> against me as a HylaFAX developer and thousands of others like me in
> assisting some Mikey Mouse fax sender in breaking copyright laws when the
> software is virtually otherwise used in a lawful manner.  True, if such a
> bill were passed I would have violated it, but I seriously doubt that it
> would ever hold up in court to the extent that the quoted message's author
> implies.
> 
> Oppose the bill, but its passage is nothing to lose sleep over.
> 
> Lee.




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