European High Court Will Examine DRM Anti-Circumvention Rules

from the free-speech-anyone? dept

A European directive from a few years ago included a DRM anti-circumvention clause that even made it illegal to host an "organized discussion" of techniques for circumventing DRM. That seemed excessively broad (and unfairly limiting) to Mikko Rauhala, who set up a discussion site where people could discuss CSS, the notoriously lame copy protection used on DVDs that has been broken for ages. He did it mainly to get the issue into court -- which it did. Two years ago, a Finnish court had an odd ruling on the case, in which it claimed circumvention was okay if the DRM was ineffective. That's because the directive specifically claims that it applies to "effective DRM." Of course, taken to its logical conclusion, one might think that means if you can break DRM, then you haven't violated the anti-circumvention language, because you've proven that the DRM is ineffective. It's a bit of a logical pretzel. So, while I agree that it's silly to make discussion of circumvention illegal, the legal reasoning was a bit twisted.

So, it came as little surprise a year later, when an appeals court overturned the lower ruling. However, from a free speech perspective, this was still quite troubling. Banning any organized discussion about a technology seems tremendously questionable. The good news (as found via Michael Scott) is that the case is now going to the European Court of Human Rights. One hopes they'll recognize this as a violation of basic civil rights. It's troubling enough that simply circumventing copy protection on legally purchased goods is considered breaking the law. It's much worse to say that even talking about it is against the law.

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Surprise! Net Censorship Circumvention Tools Sell User Data

from the just-when-you-thought-you-were-safe dept

As you may know, there are a number of circumvention tools used by businesses, activists and journalists seeking to avoid the Internet censorship efforts in countries like Saudi Arabia or China. What you probably did not know was that a number of the most popular tools willingly provide specific user data, including browsing history. Harvard researcher Hal Roberts revealed last week that DynaWeb, FreeGate, GPass and FirePhoenix all partake in the startling practice of selling user data.

These tools work by operating as virtual ISPs for the user in the censored country, so they have incredible amounts of information about the online practices of millions of users. As Roberts points out, the best way to avoid sharing this information, which authoritarian governments would love to have, is to not store it. Unfortunately, these projects have chosen to support themselves through the sale of data, thus potentially compromising their goal of Internet freedom. Although they claim to have "strict screening" before selling personally identifiable data, one can easily imagine leaks or errors.

While this shouldn't be entirely surprising - no system is perfect - it is a practice which should be corrected. And it should serve as a reminder that those wishing to remain anonymous online have an uphill battle.

Kevin Donovan is an expert at the Insight Community. To get insight and analysis from Kevin Donovan and other experts on challenges your company faces, click here.

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Mod Chips Found Legal In The UK

from the mod-away dept

For many years, we've wondered why some folks considered the process of mod chipping to be illegal. After all, if you own a device, why shouldn't you be able to modify it? It's not illegal to modify your computer, so why would it be illegal to modify a game console? Well, thanks to the DMCA in the US, the question wasn't entirely clear -- because console makers use encryption, they consider any modification to be a circumvention of that encryption, and the DMCA has that pesky anti-circumvention clause. In the US, it's become even more bizarre, with federal officials taking up the cause and fining mod chippers while claiming (seriously) that mod chipping was a national security issue.

Luckily, it looks like the courts in Europe are a lot more reasonable about all of this. A few years back, we noted that an Italian court ruled that mod chips were perfectly legal (Update: Well, darn. As a commenter notes, the Italian decision was later overturned). And, now, a tipster alerts us to the news that a UK appeals court has found the same thing, tossing out all of the charges against a mod chip seller, noting that mod chips do not circumvent copy protection systems. Not only that, but the defendant was awarded legal fees. This is a big deal, as the lower court had found the guy, Neil Higgs, guilty for selling mod chips he had imported from Hong Kong. So, now that's Italy and the UK that recognizes modifying your gaming consoles shouldn't be illegal. Anyone else?

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Finnish Appeals Court Overturns Decision That Said It Was Okay To Circumvent Ineffective DRM

from the so-that-makes-it-effective-again? dept

Almost exactly a year ago, we wrote about a rather confusing legal decision that came out of Finland that said that no laws were broken in showing how to circumvent the notoriously weak CSS encryption scheme found on DVDs. The reasoning was that there was nothing wrong with breaking an encryption scheme if it was "ineffective." Of course, that opens up all sorts of questions. If it's illegal to crack DRM that is effective, but the only way to prove that it's ineffective is to crack it... then, what happens? And, of course, once the encryption is cracked, haven't you then automatically shown that it's ineffective, thereby making it okay -- even if it was effective until you cracked it? The mind boggles. Apparently, it was equally mind boggling for a Finnish appeals court who has overturned the ruling. That said, the new ruling is still problematic. It still seems troublesome that anyone could be found to have broken the law for merely explaining how to circumvent a copy protection scheme. That holding leads to obviously bad outcomes. Anti-circumvention clauses are really dangerous restrictions on free speech, trying to criminalize the explanation of how to do something that's potentially infringing, rather than the infringement itself. It's a crutch relied on by the content industry that still can't come to terms with the fact that copy protection isn't a good idea. But rather than deal with that via business model changes, it simply passes laws that tries to stop people from doing anything the industry doesn't like.

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Can The DMCA Be Used To Stifle Speech?

from the we're-about-to-find-out dept

Last summer, we wrote about a very questionable DMCA lawsuit filed by Coupons.com. The company lets people download coupons using its own software. The software is designed to limit how many copies of a coupon people can make. The company accused John Stottlemire of violating the anti-circumvention part of the DMCA by offering up some software that would help people get around the copy limit. However, he didn't just offer up software to do it, elsewhere he explained how you could do it manually, just by deleting a couple of files on your computer. That's hardly a "hack." There was no encryption to defeat, just some files to delete. Basically, Coupons.com couldn't be bothered to come up with a system that was actually secure and put in only the weakest of "protections."

Yet, Coupons.com claims that telling people to delete some files is circumventing their copy protection. The EFF (along with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley) have now filed an amicus brief with the court pointing out the numerous problems with the charges. As the filing notes, the DMCA is focused on people providing a "technology, product, service, device, component, or part thereof," and comments on a website hardly seem to qualify. It also notes that even if the court interprets written comments to be included, the DMCA is specific that it does not diminish any free speech rights. The filing also looks at other problems with the Coupons.com filing, including the company mixing up the difference between access controls and rights controls. Hopefully the judge realizes that this is (yet another) abuse of the DMCA and tosses the case out quickly.

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