TCS Daily


Learning Your Limits

By Duane D. Freese - January 9, 2003 12:00 AM

"A man's got to know his limitations."

So said Clint Eastwood's character Dirty Harry in the 1973 movie, Magnum Force. Detective Harry Callahan was commenting about an overzealous police captain who set up a special force of young cops. The force took the law into its own hands in administering justice. Only administering justice included killing cops who'd discovered what they were doing. When they tried to kill Harry, he killed them, with the captain dying when the car his minions had rigged to explode to kill Harry blew him up instead.

Harry knew the limits of his own administration of such justice. Unfortunately, too many prosecutors, industries and countries don't when it comes to the reach of their laws pertaining to the Internet.

In two separate cases, one decided this week, they got a little comeuppance.

Just before Christmas, a San Jose, Calif., jury took the law into its own hands and acquitted a Russian software company, Elcomsoft in the first criminal case brought under the controversial Digital Millennium Copyright Act of 1998.

That act makes it a crime to offer products for sale that circumvent digital copy protections. ElcomSoft agreed that it sold software that did exactly that, circumventing protections developed by Adobe against copying of its eBooks. But the jury may have bought the testimony of the company's young programmer that his and ElcomSoft's intent was innocent.

"My intent was to allow people who legally own books to use them as they like, to read them on any computer," Dmitri Sklyarov, who was arrested with great fanfare by federal authorities in Las Vegas in 2001, told them. He further testified that his program had another practical application. It "demonstrates flaws in security systems," he said.

Or the jury may have simply become confused by a law that allows people and libraries to copy music, eBooks, movies and other things that they've bought for their personal use, but tries to make it illegal for a company like ElcomSoft to provide them the technological tools to do so. The jury asked the judge during their deliberations to read the law, but he refused, telling them that if they needed an explanation about what the law meant he would provide it because it's the judge's job to interpret the law, not the jury's.

Or jurors may have felt that it was a bit of a reach for the United States to prosecute a Russian company and programmer for doing something that wasn't illegal in Russia.

Or it may simply have found the law overbroad. As jury foreman Dennis Strader told reporters, "Under the eBook formats, you have no rights at all, and the jury had trouble with that concept."

In any event, the jury found enough good reasons to not put people behind bars for developing and sharing programming code with legitimate uses.

This week, a court in Norway made a similar assessment about DVD Jon.

Jon Johansen, 19 wasn't charged under the DMCA but under a Norwegian law that makes it a violation to break into another's locked property. Hollywood movie studios, though, pressed for his prosecution. His crime: He attempted to break into DVD movies he owned when he was 15 to make them work on a Linux system in his computer. In doing so, he "broke" the encryption lock Content Scrambling System (CSS) that Hollywood had developed to protect movies from being copied.

Johansen's DeCSS didn't work very well, according to testimony. It only allowed some poor quality five-minute snippets to be copied over to Linux format. But the fact he put copies of his software on the Net sent Hollywood ballistic.

If Hollywood had been smart, it would have hired Johansen to develop code to protect its copyrighted material. It is noteworthy that Norwegian prosecutors, while doing Hollywood's bidding, are playing it cozy, asking for a fine of $1,400 and prohibiting Johansen from using computers but no jail time in this novel trial. But the court there found even that ridiculous.

Don't get me wrong. I believe that copyright and intellectual property protections are vital. Artists, writers, directors and software programmers have earned compensation for their works. And copyright industries are among the nation's fastest growing, increasing at a 7 percent annual clip over the past quarter century and totaling more than $535 billion in 2001 (or 5.2 percent of U.S Gross Domestic Product), according to the International Intellectual Property Alliance.

But there is such as thing as reaching too far. You've got to know your limitations.

And these cases demonstrate one of them clearly, and show why Hollywood, the record companies and publishers will face big problems if they continue down their current path to protect their works from being copyrighted.

For what Hollywood and other copyright holders are trying to make illegal amounts to taking away the property rights of the very buyers of their wares.

Echoing the sentiments of the ElcomSoft jury, Johansen's lawyer told the Oslo court in his closing argument "The thief who breaks into his own flat is not committing any crime." And the court agreed, saying he was entitled to view DVDs that he had legally purchased in any way he chose and couldn't be convicted of "breaking into" property that he already owned.

Furthermore, as Stanford law professor Lawrence Lessig argued defending Dimitri Sklyarov, making decryption illegal, as DMCA does, "not only interferes with the legitimate use of copyrighted material, it undermines security more generally. Research into security and encryption depends on the right to crack and report."

And finally, seeking to apply American law and standards to foreign programmers sets a terrible precedent for the future of the Internet.

Two years ago, the French government charged Yahoo! with violating its anti-racism law for the offering from its Web site of Nazi paraphernalia, including the Adolf Hitler's book, Mein Kampf. A federal court ruled that the U.S. Constitution's First Amendment trumped the French law, as far as Yahoo!'s American site was concerned. But Yahoo! agreed to keep Nazi material off the French portal and has promised China not to put up material offensive to that communist regime on its Chinese portal.

In December, the Australian Supreme Court ruled that Dow Jones could be held liable for libel under Australian law for an article put up on the Net in the United States. Dow Jones has only a relative handful of subscribers down under, but enough for the court there to assert its strict libel interpretations versus this nation's more lenient ones.

Earlier last year, an American journalist, Andrew Meldrum, who lived in Zimbabwe for 23 years, was acquitted of violating the government's harsh new media laws, but was ordered deported, an order stayed by the country's high court. The government had charged Meldrum not for information published in Zimbabwe but in The Guardian in Britain. But Zimbabwe claimed jurisdiction because it was put on the Net.

If the Zimbabwean court hadn't agreed that Meldrum's report followed standard journalistic practice, he might have been jailed. The government of Robert Mugabe has attempted to squelch criticism by harassing and jailing more than a dozen journalists.

Copyright protections are needed to encourage the development of content and ultimately the freeflow of information. Current attempts at enforcing copyright, though, if successful, would have helped twist its intent to make the global information village a ghost town ruled by the laws of the least free, such as Robert Mugabe.

Self-imposed Limitations

At the other extreme of laws and lawyers that respect no boundaries is the self-restraint of the local Bell telephone monopolies. The question two lawmakers are asking is whether the Bells' respect for each other's territories violates antitrust law.

In a letter filed with Attorney General John Ashcroft, Reps. John Conyers of Michigan and Zoe Lofgren of California asked for an investigation for possible antitrust violations based on Qwest CEO Richard Notebart's declaration that it would be wrong to compete in SBC/Ameritech's territory by noting that "it might be a way to turn a quick dollar but that doesn't make it right."

The remark seemed to indicate that Qwest, and the other Bells, have decided to forego profits in other Bell territories. Is that part of a decision by them to divide up the telephone market between them?

The Bells are quick to say no. In fact, they say they are competing vigorously - for business and wireless customers. But not for residential customers.

And the reason for that? It's a bit peculiar, considering what the Bells have been telling the Federal Communications Commission.

For months now, they've argued that current federal rules for wholesale leasing of their systems' elements - so-called UNE-P, or unbundled network element platform - are unfair because they set prices below the Bells' actual costs. That gives their competitors an unfair advantage, they've claimed, and discourages investment by competitors in their own elements to replace those provisioned by the Bells. They want UNE-P relaxed or lifted as part of the FCC's triennial review on the implementation of the Telecommunications Act of 1996, and some libertarian commentators are going along in the belief that the Bells shouldn't have to subsidize their competitors.

Only, that ain't necessarily so. Bill Myers, senior director of policy and law communications for Qwest, in defending his boss's statements, argues the opposite point. He said his company didn't want to enter the residential local phone market in SBC territory because it would be forced to lease SBC lines to do so, and "that is not a sustainable business model."

So which is it? Is it unsustainable for the Bells to lease out lines or for competitors to successfully compete by leasing them?

The lesson to regulators as they move ahead in the next month in their review: Actions speak louder than words. The limitations the states are placing on the wholesale prices the Bells are charging are vital to competition, especially since the Bells are demonstrating no inclination to compete with each other.
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