• First up, is testimony from George Slover of Consumer's Union. He highlights, correctly, how important mobile phone unlocking is for consumers, and points out that it's a demonstration of "the harm the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are causing consumers." He also points out that this issue should be a reason to explore more deeply the role of the anti-circumvention provisions found in Section 1201. He does offer a qualified support for the bill, but lists out a bunch of other changes that he thinks really should be added to the bill, to further allow consumer freedom and innovation around unlocked phones to thrive. The basic rights of consumers is important, and Slover definitely highlights that.
• Next up, is testimony from Steven Berry from the Competitive Carriers Association, who have also been fighting hard to allow phone unlocking. There, the message is obvious. The competitive carriers provide greater innovation in terms of business models, service plans, etc., but much of that is enabled by allowing unlocking of phones, so users can switch from big network providers to a competitive carrier, without having to buy a new phone. This testimony focuses on the importance of unlocking specifically, and doesn't touch on the bigger issue of fixing the anti-circumvention provision. It's narrowly focused.
• Then we get to testimony from Mike Altschul from CTIA, which is basically the trade group for the big mobile carriers. Their argument is basically "hey, we let you unlock your phones if you ask, so there's no need for this exemption." It claims, ridiculously, that carriers need to "lock" their phones so they can provide subsidies to make phones cheaper. But that's clearly not true. Carriers that subsidize their phones also have contractual early termination fees, which solve the subsidy issue, so the claim that they need the locks to protect the subsidies makes no sense. They already have the ability to do so contractually -- and they use it. There's no need for them to rely on digital locks and a broken copyright law to further protect something they already have through contract. Furthermore, the argument that they already allow unlocking is simply not correct. They allow unlocking in certain situations, but not all, and people have run into issues such as when travelling abroad, and just wanting to put in a foreign sim card.
• And, finally on the spoken testimony, we come to testimony from Steve Metalitz. Metalitz is the MPAA and RIAA's go to guy for writing the laws they like in DC. ACTA, SOPA, TPP have his fingerprints all over them, and he's the epitome of an extreme maximalist. There's nothing about greater copyright protection that he finds problematic, and he always supports expansions. I have no idea why he's a witness at this panel, since he has nothing to do with phone unlocking, and while he has advocated for the MPAA/RIAA's extreme interests during DMCA exemption reviews, he officially took "no position" on cell phone unlocking.
  
  His testimony is basically a spirited, ridiculous, and flat-out misleading "defense" of Section 1201 and the anti-circumvention provisions of the DMCA, which he seems to credit as being the reason why we have any entertainment at all online today. He claims that 1201 is "one of the most critical provisions" and says that it, specifically, has been "critical" (he likes that word) to the entertainment industry embracing the online world. This is wrong. First, the industry was dragged kicking and screaming into the online world, not willingly. And the anti-circumvention provisions have been nearly entirely useless in protecting their works, nearly all of which are available DRM-free from unauthorized sources. On the music front, they've already ditched DRM, and others will likely follow.
  
  Metalitz then claims that 1201 is critical to the success of cloud computing, which is also wrong and ridiculous. It's wrong because what protects cloud computing is not copyright law, but good computer security. If cloud providers are hanging their hat on a copyright infringement claim if someone breaks into their network, they're doing it wrong. It's also ridiculous, because it tries to pretend that the tech industry is supportive of section 1201, when many find it quite problematic.
  
  After that, he points out that 1201 was such a good idea that "scores of other countries have followed." What he leaves out is that those "scores of other countries" were pressured by the US government, in large part because of international treaties that (oooh, look at that) were strongly "supported" by Metalitz. It's quite a feat to claim that other countries supported your idea when they did so under pressure from the US government, using points highlighted by the RIAA/MPAA's own representatives.

Most significantly, the Section 1201 rulemaking is an exercise in legal theatre. All the parties to the rulemaking—those seeking an exemption, the rights holders, and the Copyright Office staff--acknowledge that it is unclear whether the rulemaking has any practical effect. This is because Section 1201(a)(1)(C) authorizes the Librarian of Congress to adopt exemptions to the Section 1201(a)(1)(A) prohibition on the act of circumventing a technological protection measure (TPM), but not to the Section 1201(a)(2) prohibition on the development and distribution of the technologies necessary to perform the circumvention. In other words, after receiving an exemption, a person might be legally permitted to perform the act of circumvention, but might have no lawful way of obtaining the technology necessary to perform that act.

Similarly, all the parties understand that what occurs inside the hearing room has no connection to the world outside it. In the last three rulemaking cycles, LCA has joined with other groups in seeking exemptions for educators and students to circumvent the TPMs on DVDs for the purpose of making educational uses of film clips. The rights holders know that the uses we seek will not harm their market in any way. They also know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement. This is because the technology necessary to circumvent the TPMs on DVDs is widely available on the Internet and easy to use. Nonetheless, the rights holders reflexively oppose the exemption or seek to narrow it so that it would be unusable. As a result, the discussions in the rulemaking descend into hyper-technical issues such as the quality of video necessary for effective pedagogy in different kinds of courses.

Moreover, in two rulemaking cycles, witnesses from the Motion Picture Association of America (MPAA) demonstrated how a person could camcord a film off of a high definition television. MPAA was attempting to show that a relatively high quality recording could be made without circumventing a technological protection measure. What it succeeded in proving, however, was the contradiction underlying its position. If one could obtain a high quality copy without circumvention, why use technological protection measures in the first place, and why should their circumvention be unlawful? Moreover, the MPAA was demonstrating how to camcord a film precisely at the same time it was asking Congress, state governments, and foreign legislatures to impose criminal penalties on camcording.

Banning technologies is an extreme step by government, a truly incredible reach of Federal power, and I would petition this body to be very careful in continuing to delegate the authority of what technologies to ban to a quasi-regulatory agent when, in these and many other circumstances, there is no compelling governmental interest.

This legislation, as currently crafted, does not reflect the input of the White House, former FCC Chairman, FCC Commissioner, scholars or outside groups such as R Street and FreedomWorks. Our campaign was about actually solving this problem and restoring a free market. Minor changes to this legislation would ensure that H.R. 1123 actually solves the problem it intends to address by permanently legalizing unlocking and allowing for businesses to sell the technology to consumers. Overall, our contention is that given the enormous benefits that phone unlocking provides to the consumer, phone unlocking should be made permanently lawful for the consumer to use, industry to develop and marketers to sell.

It shall not be a violation of this section to circumvent a technological measure in connection with a work protected under this title if the purpose of such circumvention is to engage in a use that is not an infringement of copyright under this title.

The President shall take the necessary steps to secure modifications to applicable bilateral and multilateral trade agreements to which the United States is a party in order to ensure that such agreements are consistent with the amendments made by this Act.

We were worried about the part of the DMCA called 17 U.S.C. § 1201(a)(1), which says that “No person shall circumvent a technological measure that effectively controls access to a work protected under [copyright law].” We had to disable the rootkit to detect what it was hiding, and we had to partially disable the software to figure out what it was doing. An angry record company might call either of those steps an act of circumvention, landing us in court. Instead of talking to the public, we talked to our lawyer.

The research community saw this problem coming and repeatedly asked Congress to amend the bill that would become the DMCA, to create an effective safe harbor for research. There was a letter to Congress from 50 security researchers (including me), another from the heads of major scientific societies, and a third from the leading professional society for computer scientists. But with so much at stake in the act for so many major interests, our voice wasn’t heard. As they say in Washington, we didn’t have a seat at the table.

Congress did give us a research exemption, but it was so narrowly defined as to be all but useless. (So perhaps we did have a seat—at the kids’ table.) I’ll spare you the details, but basically, there is a 116-word section of the Act titled “Permissible Acts of Encryption Research,” and it appears to have been written without consulting any researchers. There may be someone, somewhere, who has benefited from this exemption, but it fails to protect almost all of the relevant research. It didn’t protect Alex and me, because we were investigating spyware that didn’t rely on the mathematical operations involved in encryption.

LAST Sunday afternoon, some friends and I were hanging out in a local bar, talking about what we’d be doing that evening. It turned out that we all had the same plan: to watch the season premiere of “Game of Thrones.” But only one person in our group had a cable television subscription to HBO, where it is shown. The rest of us had a crafty workaround.

We were each going to use HBO Go, the network’s video Web site, to stream the show online — but not our own accounts. To gain access, one friend planned to use the login of the father of a childhood friend. Another would use his mother’s account. I had the information of a guy in New Jersey that I had once met in a Mexican restaurant.

In the longer term, we believe that the widespread concern about cell phone unlocking illustrates how these parts of the DMCA can interfere with consumer rights and competition policy. This interference is not limited to the realm of mobile communications devices. Congress must take action to ensure that laws and policies are keeping up with the pace of technological change. Not addressing these questions will stunt advances in access to digital media for people with disabilities and may prevent new innovations and competitive uses for emerging devices, as uncertainties around the law and the three-year cycle creates a chilling effect for individuals, businesses, innovators and investors who may be covered by the law.

To that end, we request that as the leadership of the two committees of jurisdiction, you convene hearings this year to investigate these possible reforms to the anticircumvention provisions of the DMCA in order to begin a thorough discussion of these problems.

Even more than criticism, the announcement prompted bewilderment. Just what is the Library of Congress doing regulating cellphone service, anyway?

Good question. There really isn't a good answer, other than that wireless providers have managed to get the Library of Congress, which oversees the U.S. Copyright Office, to do their bidding.

A better answer is to take the Library of Congress out of the business of being the industry's contract enforcer.

When Congress passed the Digital Millennium Copyright Act in 1998, the goal was to help digital content providers — such as musicians, filmmakers and software companies — prevent illegal pirating of their works.

To state the obvious, people don't unlock phones to steal copyrighted material. They do it to allow their phones to work on other networks.

[....] When Congress' librarian starts behaving like the new sheriff in town, consumers have good reason to suspect the law is stacked against them.

We really don’t own our stuff anymore (at least not fully); the manufacturers do. Because modifying modern objects requires access to information: code, service manuals, error codes, and diagnostic tools. Modern cars are part horsepower, part high-powered computer. Microwave ovens are a combination of plastic and microcode. Silicon permeates and powers almost everything we own.

This is a property rights issue, and current copyright law gets it backwards, turning regular people — like students, researchers, and small business owners — into criminals. Fortune 500 telecom manufacturer Avaya, for example, is known for suing service companies, accusing them of violating copyright for simply using a password to log in to their phone systems. That’s right: typing in a password is considered “reproducing copyrighted material.”

It hasn’t always been that way. Copyright laws were originally designed to protect creativity and promote innovation. But now, they are doing exactly the opposite: They’re being used to keep independent shops from fixing new cars. They’re making it almost impossible for farmers to maintain their equipment. And, as we’ve seen in the past few weeks, they’re preventing regular people from unlocking their own cellphones.

It has been fifteen years since Congress acted expansively in the copyright space. During that period, Congress was able to leave a very visible and far-reaching imprint on the development of both law and commerce. It enacted the Digital Millennium Copyright Act (“DMCA”), which created rules of the road for online intermediaries (e.g., Internet service providers) and a general prohibition on the circumvention of technological protection measures (so-called “TPMs”) employed by copyright owners to protect their content. The DMCA also created a rulemaking mechanism by which proponents could make the case for temporary exemptions to the TPM provisions in order to facilitate fair use or other noninfringing uses (the “section 1201 rulemaking”).

Nonetheless, a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention. Moreover, although the Act is rightly hailed by many as an accomplishment in balance and compromise, its long trajectory defeated any hope that it could be effective into the 21st century In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a “good 1950 copyright law.”

I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before. Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it. Certainly some guidance could be given through regulations and education. But my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.

Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine. The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it. Any number of organizations may feel justified in this role, and on many issues there may in fact be many voices, but there is no singular party or proxy. In revising the law, Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combinessafeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.

To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical —hardly a copyright law at all.

The next great copyright act must be forward thinking but flexible. It should not attempt to answer the entire universe of possible questions, but, no matter what, it must serve the public interest. Thus, it must confirm and rationalize certain fundamental aspects of the law, including the ability of authors and their licensees to control and exploit their creative works, whether content is distributed on the street or streamed from the cloud.
This control cannot be absolute, but it needs to be meaningful. After all, people around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws. Thus, Congress has a central equation to consider today: what does and does not belong under a copyright owner’s control. Congress also will want to consider the exceptions and limitations, enforcement tools, licensing schemes, and the registration system it wants for the 21st century.

The scope of the distribution right also is a central theme today, as courts work through whether and how it may be implicated and enforced in relation to use of works over the Internet.58 One key issue in the courts is the degree to which a claimed violation of the exclusive right to authorize distribution of a work requires a showing of actual dissemination of a work or whether the act of making the work available online is sufficient.

One critical issue is the ability of law enforcement to prosecute the rising tide of illegal streaming in the criminal context. Streaming implicates the copyright owner’s exclusive right of public performance: it is a major means by which copyright owners license their rights in sporting events, television programs, movies, and music to customers, who in turn access the content on their televisions, smart phones, tablets, or video consoles. Under current law there is a disparity that may have once been of little consequence but is today a major problem: prosecutors may pursue felony charges in the case of illegal reproductions or distributions, but are limited to misdemeanor charges when the work is streamed, even where such conduct is large scale, willful and undertaken for a profit motive. As a practical matter, prosecutors have little incentive to file charges at all, or to pursue only those cases where the rights of reproduction and distribution are also at issue. This lack of parity neither reflects nor serves the digital marketplace.

This brings me to statutory damages. Some would eliminate the precondition in section 412 of the Copyright Act that limits the availability of statutory damages to those who register with the Copyright Office in a timely manner.74 They believe that it places an undue burden on the people who need statutory damages the most but are least likely to be aware of the condition, namely authors. Cost is also an issue, particularly for prolific creators like photographers, who may be unable to register each and every work under a separate application and have for years enjoyed a reduced rate through a group registration option. This gives photographers the ability to claim statutory damages, but often without providing effective public disclosure of what the group registration covers. Section 412 also acts as a filter, reducing the number of claims from copyright owners and the level of exposure for infringers. Unfortunately, it does this for bad faith actors and good faith actors alike.

Section 412 was designed as a precaution and an incentive in 1976 — a time when the law was moving to automatic protection and many were worried about the ramifications for authors, the public record and the Library of Congress’ collection. Section 412 thus creates a bargain: the copyright owner preserves his ability to elect statutory damages in exchange for registering, thereby ensuring a more complete public record of copyright information and a better collection for the Library of Congress.

[....] More globally, arguments abound on the subject of statutory damages, suggesting that they are either too high, too low, too easy, or too hard to pursue. Statutory damages have long been an important part of copyright law to ensure that copyright owners are compensated for infringement, at least where actual damages are unworkable. The Copyright Act of 1790 included a provision awarding the copyright owner fifty cents for every sheet of an unauthorized copy that was printed, published, or imported or exposed to sale.77 Statutory damages should remain squarely in the next great copyright act irrespective of section 412. However, there may be plenty to do on the edges, including providing guidance to the courts (e.g., in considering whether exponential awards against individuals for the infringement of large numbers of works should bear a relationship to the actual harm or profit involved), and finding new ways to improve the public record of copyright ownership.

The section 512 safe harbors in particular have generated more than their fair share of litigation on issues such as eligibility for the safe harbor, inducement, and monitoring. Some of these issues were imaginable at the time at the time of their enactment, and others were not. There are other concerns that go more generally to the question of whether the burdens of notice and takedown are fairly shared between copyright owners and intermediaries.

On the one hand, Congress may believe that in a digital marketplace, the copyright owner should control all copies of his work, particularly because digital copies are perfect copies (not dog-eared copies of lesser value) or because in online commerce the migration from the sale of copies to the proffering of licenses has negated the issue. On the other hand, Congress may find that the general principle of first sale has ongoing merit in the digital age and can be adequately policed through technology — for example, measures that would prevent or destroy duplicative copies. Or, more simply, Congress may not want a copyright law where everything is licensed and nothing is owned.

Perhaps the next great copyright act could take a new approach to term, not for the purpose of amending it downward, but for the purpose of injecting some balance into the equation. More specifically, perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.

Finally, as noted earlier, the copyright law has become progressively unreadable during the very time it has become increasingly pervasive.

When the Copyright Act was enacted, it contained seventy-three sections and the entire statute was fifty-seven pages long. Today, it contains 137 sections and is 280 pages long, nearly five times the size of the original. As former Register Marybeth Peters observed in 2007, the current “copyright law reads like the tax code, and there are sections that are incomprehensible to most people and difficult to me.”

This is not merely a paradox; it is damaging to the rule of law. The next great copyright act should be as accessible as possible.

But in order to have a robust knowledge economy, we need content that is both professional and informal; we need content that consists of information, commentary, and entertainment, or sometimes all of these combined into one; and we need content that is licensed, content that is free, or in some cases, content that is licensed for free.

Term of 50 years, renewable for an additional 20

—The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

—However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

—This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

—Modeled after § 108(h), something the Copyright Office is very fond of

—This proposal would be acceptable under various international treaties, including the Berne Convention

Stronger Enforcement —The new law must respect the integrity of the internet, including free speech —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

The Digital Millennium Copyright Act —The Internet has evolved since DMCA passage in 1998 —Congress should review the § 512 safe harbors —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

Incidental Copies —Not all copies are the same —Perhaps there could be discrete exceptions for certain incidental copies —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

Public Performance Right for Sound Recordings —Copyright Office is a “strong supporter” of a public performance right for sound recordings —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

Statutory Damages —Review registration requirements —Look at statutory damages from all angles —Statutory damages are important part of copyright act and should be retained —Need to provide guidance to courts about how statutory damages should be applied

Other Exceptions/Limitations —The libraries and archives exception in § 108 should be updated —Update exceptions for the blind and print disabled in § 121 for the digital world —Explore new exception for higher education institutions —Personal space-shifting

Opt-Out v. Opt-In —Extended collective licensing could potentially solve many problems

Small Claims —The Copyright Office is studying this issue —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive —The Copyright Office could, potentially, take a lead role in administering small claims

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.

"I intend to work in a bipartisan, bicameral fashion to restore users' ability to unlock their phones and provide them with the choice and freedom that we have all come to expect in the digital era,"

"Consumers shouldn't have to fear criminal charges if they want to unlock their cell phones and switch carriers... Enhanced competition among wireless services is the surest way to increase consumer welfare."

1. Carriers can't actively stop consumers with technological means (unlikely).
2. Carriers can't stop consumers (but which doesn't address manufacturers or others like the DOJ going after you for criminal charges).
3. Facilitate the unlocking by providing the codes upon request? Would they have to give the codes even if you are in contract to not unlock? Doesn't permit mean you are required to period?

The "ban raises competition concerns; it raises innovation concerns."

Genachowski isn't sure what authority he has, but if he finds any, given the tone of the conversation, it's likely he will exert his influence to reverse the decision. "It's something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones."

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.

The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.

But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.

Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain...

Given copyright laws broad interpretation by the courts, it could be argued that merely unlocking your own smartphone takes a device of one value and converts it into a device of double that value (the resale market for unlocked phones is significantly higher) and therefore unlocking is inherently providing a commercial advantage or a private financial gain - even if the gain hasn't been realized. In other words, unlocking doubles or triples the resale value of your own device and replaces the need to procure the unlocked device from the carrier at steep costs, which may be by definition a private financial gain. Alternatively, one can argue that a customer buying a cheaper version of a product, the locked version vs. the unlocked version, and then unlocking it themselves in violation of the DMCA, is denying the provider of revenue which also qualifies. There are several cases that have established similar precedents where stealing coaxial cable for personal use has been held to be for "purposes of commercial advantage or private financial gain." (See Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 109 (E.D.N.Y. 1997)); (Cablevision Sys. Dev. Co. v. Cherrywood Pizza, 133 Misc. 2d 879, 881, 508 N.Y.S.2d 382, 383 (Sup. Ct. 1986)).

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

If people see this and respond, well no one is really going to get those types of penalties, my response is: Why is that acceptable? While people's worst fears may be a bit unfounded, why do we accept a system where we allow such discretionary authority? If you or your child were arrested for this, would it comfort you to know that the prosecutor and judge could technically throw the book at you? Would you relax assuming that they probably wouldn't make an example out of you or your kid? When as a society did we learn to accept the federal government having such Orwellian power?

"Arguably, locking phone users into one carrier is not at all what the DMCA was meant to do. It's up to the courts to decide."

It is legal in New Zealand to use methods to get around these regional codes and make the DVDs watchable but Judge Harvey said the TPP would change this.

"Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited... if you do you will be a criminal - that's what will happen. Even before the 2008 amendments it wasn't criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown's] tweet from earlier on: we have met the enemy and he is [the] U.S."

It is possible to use a banana to rob a bank.  It is also possible to use a phone to defraud people of millions of dollars.  But we do not make possession of a banana or the use of a phone illegal.  We make bank robbery and fraud illegal.  We do not outlaw bananas and phones because bananas and phones serve any number of socially useful services.  It would be dumb to outlaw them just because someone could use them in a bad way.

That’s why the test that the Supreme Court identified in the famous Betamax case is so useful.  As long as a technology is capable of “substantial noninfringing uses” we welcome it.  Because those substantial noninfringing uses are great to have, and we cannot stop innovation just because it can sometimes be abused.

The indictments generally charge that the defendants knowingly manufactured, imported, offered to the public, or otherwise trafficked in technology, products, services, devices, components or parts thereof, which were primarily designed to circumvent technological measures designed to effectively control access to a work copyrighted under Title 17 of the United States Code, for purposes of commercial advantage or private financial gain.

this case does provide an excellent example of the ridiculousness of anti-circumvention statutory damages. $3.4M can't be the right damages award in this case, and it's so guffaw-inducing that it further erodes the legitimacy of our copyright rules.

Making a really high end hardcover from a document such as a PDF involves rearranging the pages (“imposition”) in order to print them in sets on sheets with more than one page per side, so that you can fold them and sew them in groups (“signatures”).

Commercial e-​​books sold as PDFs are often encrypted with flags on the PDF permit printing, but not modification. Nor do they permit “document assembly” which is exactly what I need: the ability to rearrange, add and delete pages in the PDF. Unfortunately, common approaches to doing imposition involve generating a modified PDF: one in which the pages are at least rearranged and put more than one to a (now larger) page. So far, it looks like many (perhaps all?) imposition apps do it this way and don’t work with PDFs that have restrictions on modification (perhaps on PDFs that have *any* access restrictions?).

Now, I can easily break the encryption on a PDF, if that PDF allows opening but just has restrictions on specific uses like modification. If I do that, I can then use imposition software on a PDF that allows printing but not modification, and make a fancy book.

But (at least as I understand it, and admittedly I’m not a lawyer) the Digital Millenium Copyright Act says that circumventing an access restriction is always illegal, regardless of why I do it. That makes me a criminal if I do that, even if for the sole reason of making a pretty hardcover book. Even when printing the pages out normally and slapping glue on the spine, like a typical softcover “perfect-​​bound” book, is permitted and legal.

The inherently nonsensical nature of the anti-circumvention clause strikes again: the ends are fair use, but the means are illegal. Of course, since circumvention software itself is illegal too, this raises questions about the applications that are available -- but breaking PDF protection is so trivial that the law seems futile. MacOS even ships with a system tool (ColorSync Utility) that inadvertently removes PDF passwords (an old graphic designer's trick for clients who have lost their source files). This kind of thing is inevitable when you have a law that targets the tools instead of the actual activity, since it's a near-universal truth about tools that they can all be used for both good and bad purposes.

Proponents of these laws (read: the copyright industries) tend to brush off all concerns about legal activity. In their mind, there's only one reason to circumvent copy protections: piracy. Mario Dabek, editor-in-chief of the jailbreaking website Jailbreak Matrix, just released a video that nicely counters this narrow-minded concept by showcasing 100 reasons to jailbreak an iPhone. The video lists a huge variety of tweaks and customizations, both functional and aesthetic, that have nothing to do with copyright infringement and are only possible with a jailbroken phone (with the apparent cumulative effect of making a girl's tank top disappear).

While jailbreaking iPhones and other cellphones is legal in the U.S. thanks to the exemption process, it's easy to see how the same or similar tweaks should be permitted on virtually any device (especially the near-identical iPod touch, for which making any of these changes is still illegal). While there are a couple of ideas featured that flirt with infringement (using the Nintendo emulator would only be legal if you are playing games you own as cartridges) the vast majority of them are things you have should every right to do on a device that you purchased. Jailbreaking is not about piracy—it's about important rights of ownership, property and fair use that are all being curtailed by anti-circumvention laws.

Kaleidescape has carefully designed its products to protect the rights of content owners. The hard-disk copy of each DVD retains all of the DVD CCA's scrambling and adds more encryption. The Kaleidescape System is a closed system that prevents DVDs from being copied to the Internet, to writable DVDs, or to computers or mobile devices. Furthermore, you cannot download a pirated movie from the Internet to a Kaleidescape System.

Every Kaleidescape customer must agree to copy only the DVDs that he rightfully owns, and must reaffirm this agreement upon copying each DVD. Kaleidescape Systems identify rental discs and prevent them from being imported. This combination of business practices and technology has been so effective that after years of searching for evidence that Kaleidescape's customers use their systems to steal content, the DVD CCA admitted in writing that Kaleidescape has done no harm to any of the motion picture studios, and was unable at trial to show any harm to the DVD CCA itself.

Kaleidescape was founded in 2001 to bring consumers a fantastic experience for enjoying their movie collections. The Kaleidescape movie server makes digital copies of DVDs and Blu-ray Discs to hard disk drives so families can play back their movies instantly from any room of their home. A movie starts directly from the beginning, without forcing the family to endure advertisements, trailers, and confusing menus. With the company's wide-ranging innovations, customers can jump directly to the greatest scenes and songs in movies and concerts, and small children can start their movies all by themselves.

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Over the years, Americans have amassed over 13 billion DVDs and Blu-ray Discs – about 110 per household. This means that many American families have a few thousand dollars tied up in a library of movies they hoped to enjoy over and over. However, with collections that size, families soon realize that it takes so long to find what they're looking for that it just isn't worth buying more discs. This frustration has led to a well-publicized 58% decline in revenues from the sale of DVDs since 2006.

The Kaleidescape System eliminates that frustration. Because it's so easy and fun for Kaleidescape customers to enjoy their movies, they start buying movies again, and with a bigger appetite. The average Kaleidescape family owns 506 movies on Blu-ray and DVD.

Mr. Moore told The Canadian Press in an interview that the Conservative government will re-introduce its copyright bill this fall, in exactly the same form as legislation that died with the last Parliament.

The measures will go back to a legislative committee for study, and Mr. Moore said groups who testified before MPs won't be asked back to comment again.

“We've taken a couple runs at it before in minority Parliaments, but we think that we have a very good formula with the old Bill C-32 and when we come forward with our legislative agenda this fall we want to pick up where we left off, which is to continue the study of the legislation,” Mr. Moore said.