Deleting Files and the DMCA
Posted by Christopher Wojno Tue, 21 Aug 2007 19:00:00 GMT
Trevor Johns clued me into an article that ran through /. recently concerning coupon fraud. I am not interested in the fraud part of the case, as some people are; rather, I take an interest in the hypothetical decision about the DMCA.
What interests me is, if the DMCA is applicable in this case, what impact will the judge’s decision play on the rest of the United States?
First, can the DMCA be reasonably applied in this case? I have no professional training, but I’ll see what I can swing.
Facts of the case
What are they arguing about? You can pull out a crusty gem: “posting code and instructions…to circumvent copy protection on…coupons1.” So that’s the legal plot. The digital coupons, which are defensible property with inherent value, are guarded by a mechanism to prevent creating more than a set number of copies by a single user on a single machine.
For the sake of addressing issues before they crop up: No, it does not matter if you have many computers and print off the same coupon from each. No, it does not matter if you have multiple users on a machine and the mechanism operates on a per-user basis (allowing you to create many accounts on the computer and therefore print many coupons off without deleting files or changing registry settings). All of that is irrelevant. What matters are the facts of the case because that is how law in the United States works. Can you make a trade secret argument here? Sure, but that has nothing to do with this case.
To regress, coupons are (and should still be considered today, even if issued digitally) a transference of right to a consumer (or a set of consumers) by the issuing entity. The coupon is merely tangible proof of such transference. The proof is what the entity is trying to protect against copying.
The (not-so) Clever Author
Let’s digress for a moment and enter the world of book publishing. Authors write the books to contain (well… sometimes) information or a (good) story. Publishers print the books and they are distributed to the public for sale. Authors copyright their work (if they’re smart that is) and transfer that right to copy to the publishers, either in part or, more frequently, in whole. Assume that this author is more clever a programmer than a lawyer (didn’t get a Copyright). When attempting to get a publisher for his or her new book, a mechanism is included in the text to frustrate a publisher’s attempt to make more than one copy. Should the book publisher attempt to give the book to someone else to read and deliberately modify it or the environment that mechanism expects to do so, then the publisher may have violated the DMCA. Is it wrong that the publisher will profit from the work of this seemingly clever author? You bet. Is it illegal? Probably. Will the DMCA save the day? Very unlikely. Why?
Bad Media, bad!
To further digress, this is why I dislike the bulk of the news media. This article took a story and developed it only to the point where it entertains readers but does not convey any insightful information. I suppose that is in accord with the media mantra: “report the truth.” It is not the whole truth, but it is elementary fact-finding. I think it is important that this fact-finding (at any level) is done, but I would prefer to see more developed conclusions to these “stories.”
Books and Coupons
To relate the publisher and the coupons: With coupons, the author of the “work” is the issuing entity. It transfers the right to print coupons to the coupon-printing website which, in turn, transfers the right to you to print a coupon. Our author and publisher are in a situation similar to a coupon issuer and a coupon consumer (respectively).
Legal Fun
Back to our not-so-smart author/programmer and his low-down, dirty publisher (not to say that all publishers are low-down and dirty). Why does the DMCA not apply here? Go to the law. Section 1201 of the DMCA states: (emphasis added) “No person shall circumvent a technological measure that effectively controls access to a work protected under this title2.” Here’s an out: will the judge consider registry keys and files as “effective” mechanisms to prevent the copying of those coupons? John Stottlemire (the defendant in the coupon case) and his counsel are banking on not. Observe how obvious the defendant is playing into this section of the DMCA as Kravets quotes him, “All I did was erase files or registry keys. Nothing was hacked. Nothing was decoded that was any way1.” Brilliant. Translate: Judge, the not-so-smart coupon printer didn’t take enough precautions to protect his right to copy. Judge thinks: well, that wasn’t “effective” now was it?
Saying case-closed is premature. The judge can be clueless (not to say he or she is, I have not met the individual), but it is possible. Now what? The case hinges on that single element. Section 1201.b. includes providing instructions and software (for free or otherwise) about circumventing the hypothetically effectively protected property. Hypothetically, he’s going to jail.
Not convincing enough? Try Section 1202.b “REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person shall, without the authority of the copyright owner or the law intentionally remove or alter any copyright management information2.” If you read Section 1202.c.72, you’ll see that the registry keys can and will likely be construed as a copyright management information.
The Unlikely Heroes
This doesn’t look good for John Stottlemire (oh and I find it asinine that he’s being associated with DVD John1 based on shared first names and skiffs with copyright, the talent levels just are not on par). But oh, whoever will save him!? Well. Microsoft could (I know what you’re thinking: Christopher has lost it. Why would Microsoft step in? ). They are not the only ones. Guess what? Your operating system manages files. It also provides a method to delete those files. Oops, your operating system just violated 1202. Oh, they’re not a non-profit educational institution or ISP? They might be liable too!? It’s not my fault your honor! Microsoft let me delete my files and I…sniff... I… Just couldn’t stop!
Long shot? Why? Not-DVD-John here did the same thing: created something to help the public circumvent/alter copyright management information. I could see any file system manufacturer or distributor (which Microsoft definitely is) getting snagged in this. How could they cover themselves against liability? Implement their own copy protection scheme that the operating system manufacturer could sue you for in the event someone else sues them because you cracked the copy-protection scheme. Microsoft already has this well covered, especially in Vista.
How else can you circumvent this hypothetically “effective” management? Reformat/reinstall your disk/operating systm (not regularly feasible, but still possible), employ disk-rollback software (you see this in school libraries, at the end of the day, you start from scratch), or delete random files from your computer (you laugh or are afraid, but I used to do this as a kid to see what would break). Any of these actions will trigger it. Any company or person that provides the means to do so will be liable for DMCA violations.
In light of this, it is unlikely that, even if the judge did think a file is an effective protection method, he would never rule against so many major players.
Not to sound as if you wasted your time (if you learned something, you didn’t), but this entire article is a waste of time, aside from prompting 2 discussions about the applicability of the DMCA. The judge will likely never find it applicable. Not worth mentioning more than once is Not-DVD-John did wrong, but not by the DMCA.
Disclaimer
I am not a lawyer and I have had no professional training in the field of any law. You are responsible for your own actions, always.
1 Kravets, David. “Coupon Hacker Faces DMCA Lawsuit”. Wired. Aug 20, 2007. Aug 21, 2007. <http://www.wired.com/politics/onlinerights/news/2007/08/coupons>.
2 “Digital Millennium Copyright Act”. United States Government. House of Representatives. <http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:>.
Things not included in the article:
1) Until recently, the software in question was given to consumers without Terms of Use and without an EULA, giving First Sale Doctrine rights to any person who downloaded it, whereby giving implicit authorization to do anything with that software one wished as long as it did not infringe upon the exclusive rights of the copyright holder. (to include any modification to the code)
2) There are no Terms of Use posted on the coupons website whereby contractually obligating the consumer to any printing limitations.
3) There is no copyright infringement nor do the actions facilitate infringement. To use your Author/Book anology, if the author only desires to give a person one book, but somehow the consumer fools the author into believing he is someone else and obtains another book this obviously does not infringe upon the copyright law.
Just my 2 cents on what my interview with Wired contained, but wasn’t published
A couple other complicating facts:
1) My firewall, ZoneAlarm, allows me to deny a program to set a registry key—per key! Since ZoneAlarm is technology that enables me to do this, and one of its purposes is to intercept [malicious] program operation, do they break the DMCA? John could get a strong Amicus Curiae!
2) I heard of some trial software being used. It was installed by an admin, but used by a regular user who had no admin privileges. Among those privileges was the ability to modify the registry. The trial software could never write the time remaining, so it was an eternal free-trial! Doth Windows break the DMCA too?
I have asked several people to write an Amicus Brief on my behalf, as of yet, no one has agreed to do so.
Everything that has transpired thus far in this case can be viewed at our website: http://www.thecouponqueen.net/ and then click on the “Litigation” link at the top of the page. This includes my personal comments, comments made by others as well as the pdf files of papers filed with the Federal Court.
@Michael Rodgers:
You understand my point perfectly. What’s to stop you from, say: backing up your registry, printing the coupon, then rolling back your registry? Nothing. As a matter of fact, you’re allowed to do that because the registry is so prone to abuse. This is a core Windows component. I personally prefer /etc and /usr/local/etc, but that’s just me.
@John:
I appreciate additional story details; however I was only concerned with #3 on your list. Perhaps I’ll write another targeted article. It’s an excellent legal question, one which I would be stymied to discover had no legal precedent, I’m sure your lawyer has found something by now about it. Were I him or her, I would be focused on those charges, not the DMCA. The point of my article is that the DMCA isn’t even worth mentioning in an article due to a lack of relevancy. Ironic, no?
@Christoper:
Maybe the DMCA is not worth mentioning, but it is the one thing the entire case revolves around. There are minor state claims as well, but those claims would require a finding for Coupons, Inc on the DMCA claim.
In addition, you maybe should be concerned with all three and here is why:
In Chamberlain Group v. Skylink the DMCA claim was thrown out because of the lack of a Licensing Agreement and/or Terms of Use by Chamberlain, whereby giving “implicit authorization” to circumvent.
In Jazz Photo v. Dynatech the DMCA claim was thrown out as Jazz Photo did not explicity tell its clients there was a “limitation” on how they could use their product.
The DMCA is complicated, but spelled out perfectly in case law, specifically Chamerlain Group v. Skylink which tells exactly what must be proved to prove a prima facia case against a defendant.
Sadly, I do not have an attorney. Every attorney we have spoken with is out of our budjet and we have yet to find an attorney or organization who will take this case pro bono
The technology can significantly evolve before the first case is brought forward. Legal precedent is hard to accrue, and difficult to judge.
At the heart of this problem, their efforts to classify technology in a legal context might even be totally futile. Such classifications are unstable and incomplete at best.
Software Engineers-the writers of the programs themselves-try very hard to find aspects/behavior of programs and components that will never change. Despite that, even their omniscient view doesn’t always get it right! If highly-trained professionals can’t do it, how could policy makers?
The impact of this shortcoming opens many new questions. If a program’s behavior is only partially matches what a law says is illegal, does the law apply at all? If so, are the legal remedies/sanctions scaled down as well? What happens if a program straddles multiple branches of their classification, being both explicitly legal and explicitly illegal?
Case in point: John didn’t add or modify any files, but he deleted them. Did the DMCA explicitly mention deletion? Does the DMCA still count of the end result of the actions is the same? What about passively denying a program registry access?
@John(5)
My apologies. Strong point, well put. While, my limited experience and (incomplete, but in no way limited) common sense tells me, case law or no, it is impossible to “perfectly” delineate law (but this is a minor nit and off-topic, I apologize again), it does do a fine job for the majority of instances. You already consider it your best bet.
Again, my apologies to presume that you had an attorney. It is expected now-a-days; you are considered a raving loon if you do not have one (by choice). Most people forget that choice is not always present at every particular point in time. I see you have been doing quite a bit of research. I’d like to offer some advice, but I have no qualifications (or protection from liability) to do so. Best of luck to you.
@Michael(6):
That policy-maker joke was hilarious. Problem though: At the fundamental level, file deletion is merely a modification of bits, either in the file table or in the file’s location. And the trouble with law (actually, it’s probably the savings grace) is that it can be interpreted broadly and narrowly. Luckily, the United States has a system to attempt to mitigate the discrepancies between policy and enforcement.
It is true that deletion is a modification of bits, but those bits don’t necessarily belong to the file itself. Moreover, the data-modification deletion entails depends on the file system, so that by itself has wide variance.
A secure file system might over-write the file with entropy bits, while FAT32 would just mark the deletion in a system-wide “file”.
As for the “broadly and narrowly” part, I thought one of the goals of the DMCA was to remove ambiguity—especially that which could get the defendant off easy.
Christopher,
I have a copy of the “motion to dismiss, or in the alternative, for summary judgment” (as well as a rule 11 motion for sanctions, request for judical notice and all exhibits) on my blog. http://www.tenbucks.net/
just thought you might want to see the “all I did was erase files” argument.
(I’m not expecting you to post this, but see no other way to contact you.)
The Motion to Dismiss, Pursuant to Fed R Civ P 12(b)(6) was granted with leave to amend.
Coupons, Inc has until January 2, 2008 to file an amended complaint.
The order from the Court states:
“Although [Coupons, Inc] points to paragraphs alleging that access was unauthorized, it has done so in a conclusory fashion. To declare Stottlemire’s actions “unauthorized” without further explanation is insufficient. The complaint does not allege which actions by [Stottlemire] were unauthorized, nor does it explain how a consumer would come to know particular actions were or were not permitted.” (internal citations omitted)
“Defendant’s Motion to Strike the Opposition, his Motion for Sanctions and his Motion for Summary Judgment are DENIED. Defendant’s Motion to Dismiss with respect to the authorization element of the claims alleged is GRANTED, but with leave to amend. Plaintiff shall have until January 2, 2008 to file an amended complaint. Defendant’s Motion to Dismiss is otherwise DENIED.”
Glad to see my wild and unsupported predictions panned out. It is good to see that the DCMA was not abused in another way by this case.