[Patents] Once more on Euro-DMCA

[halber@timsi.com.pl (Jozef Halbersztadt)]

Bernard Land (once) wrote:
> ??  european DMCA
>
> well it has been published ... and is pretty bad
(...)
> but I have not yet had time to analyze.  I consider the patent issue
> more essential, more urgent, because less reversible.
>

Battle over logic patents is far from over. But the failure to
legitimize them in 2000, the result of consultation exercise of the
DGIM make Europe different place to live. One can now observe efforts
to keep status quo, and create for open sosoftware a special niche
where attorneys are not intervening. The task before us is reject this
kind of proposals and left no doubts that we can agree only on a law
that treats closed/proprietary and open/free software at equal
footing. This need a mobilization but I do not think it will be
difficulty to us to undertake.

But I am afraid you underestimate the Euro-DCMA problem. It is easy to
observe that in the US digital copyright is the main battle line
between freedom and intellectual slavery.

If you look in TRIPs 1994, in WIPO copyright treaty 1996 you will see
short one sentence  clause. Article 11 - Obligations concerning
Technological Measures: "Contracting Parties shall provide adequate
legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by
authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect of
their works, which are not authorized by the authors concerned or
permitted by law."

The two treaties enabled Hollywood and Silicon Valley corporate
lobbyists to persuade Congress in 1998 to enact a multipage statute
under label of protecting of "digital property" against theft.
According to it any use of copyrighted material against the will of
the content controller is now theft. The perfect control is becoming
an objective. It is not Jefferson's conception of the balanced package
of intellectual property and an intellectual common. The controller is
not an author. It is vision of perfect control of Orwell's Ministry of
Truth.

As Lawrence Lessig wrote recently (30 August) in his "A Commitment to
Candid Speech":
http://cyber.law.harvard.edu/filter/lessig-sklyarov.html
"(...) it is quite clear that Congress hadn't thought through the mess
they were creating when they enacted the DMCA. Congress never
considered the prospect of an industry group threatening a computer
science professor with DMCA liability if he spoke about his research
in cryptography. (See the RIAA's letter to Princeton professor Edward
Felten.) Nor did it imagine that the law would be wielded against a
magazine for including a link to a site where cracking code existed.
(See the prosecution against the magazine 2600.) Congress didn't
consider these matters; under lobbyists' pressure, it just raced in to
legislate. The result has been a mess of complications, including the
mess that landed Sklyarov in jail."

To me the most instructive is case of 2600 Magazine . Here part of EFF
Press Release -- Jan. 26, 2001
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_eff_pressrel.ht
ml
       Diverse Groups Unite to Defend Freedom
       of Expression Against DMCA
(...)
Background
Motion Picture Association of America (MPAA) members, beginning at the
tail end of 1999, filed suit under the controversial Digital
Millennium Copyright Act (DMCA) to prevent the online availability of
a free program called DeCSS which cracks the extremely weak encryption
(CSS) "protecting" commercial DVDs from being played on computer DVD
drives that run under operating systems that are not "approved" by the
movie industry, including Linux. The MPAA has alleged that DeCSS is a
piracy tool, even though DVDs can be easily pirated without DeCSS, and
DeCSS is required for Linux users to be able to play their legally
purchased and owned DVDs on their own computers. The case at hand,
officially Universal v. Reimerdes named several defendants, including
2600 Magazine, for posting or even linking to DeCSS, alleging
violation of DMCA provisions against distribution of copyright
infringement tools. A similar case in Connecticut was also filed, and
a very different case (based on state trade secret law) was filed by
MPAA members (some the same as in the NY and CT cases, others
different) against hundreds of plaintiffs, in California. MPAA members
even went so far as to have Norwegian law enforcement authorities
(probably wrongfully) arrest the 16-year-old co-author of DeCSS, on
more far-fetched copyright infringement-related accusations.

EFF believes that the DMCA harms - nearly eliminates - all of the
public's fair use rights, and makes criminals of people doing
perfectly legitimate things. Our Campaign for Audiovisual Free
Expression (CAFE) advances the following principles in response to the
DMCA and related intellectual property holder "land grabs" against
your rights:

1.Piracy of an artist's work is illegal. Fair use is not.
2.We have the right to hear, speak, learn, sing, think, watch, and be
heard.
3.No one should assume by default that we're criminals, and the
technology we use shouldn't do so either.
4.We have a right to use technology to shift time & space (including
using a media player of choice, when we want, and where we want, with
content we legally have access to.)

These facts and the rights they uphold are already a long-standing
feature of American intellectual property law. The new DMCA law turns
most of it on its head, and allows moneyed industries to attack
underfunded individuals, publishers and organizations with near
impunity, for doing what they have a right to do in the first place.

(...)
End of the Press Release

As you know the same corporate lobbyist persuaded the European Union
to produce a Directive almost the same as the US DMCA. As in the US
the pretext is the WIPO copyright treaty. But if you look at the WIPO
site you can find that the majority of European countries (exception
is a dozen countries of East Europe), have not yet ratified the
copyright treaty. It means that European national parliaments will
debate together implementation of the Directive and ratification of
the Treaty. This make possible to campaign for rejection of the Treaty
because as is seen on example of DCMA-like laws it enables expansion
of copyright in a wrong direction.

Jozef Halbersztadt