IntroductionI do assume that you know about DeCSS - what it is and that there are still two large lawsuits moving slowly through US courts. I want to provide a short history of the DeCSS afair and then move on to background information about the organisational side of the story - why do we have the DMCA in the USA today and will soon have a similiar law in Europe? I will try to break open the shell around the various organisations involved and show who plays which role on the stage. And most certainly there will be more questions than answers.
A short introduction on my person. I am one of the named defendants in the
first DeCSS lawsuit, the one in California by the DVD CCA. I was the one who
set up the decss mailing list where we organised the defense in the early
days. It was a closed list, for defendants only, so you may never have heard
of it, but it did make a lot of a difference. Today, my website
lemuria.org is Google's #1 hit for the
DeCSS HistoryI set up my DeCSS mirror in November of 1999, about a month after DeCSS had first been published on the web. CSS had by then existed for more than 3 years, and DVD piracy was already widespread, as reports from the International Intellectual Property Alliance prove. Those pirates did not need nor care for DeCSS - they simply made identical copies, including the "copy protection".
Nevertheless, as you all know, DVD CCA, the licensing organisation for the CSS license, sued everyone and his dog on December 27th, 1999. The MPAA joined with their own lawsuit against 2600.com on January 17th, 2000.
The California lawsuit is about trade secrets and has received only limited
media attention compared to the 2600 suit. Most likely because only the MPAA
has brought up the Digital Millenium Copyright Act - the dreaded DMCA. Still
fresh from the presses, the DMCA had only been enacted in 1998 and parts of
it had just went into effect on Janury 1st, 2000.
WTO and WIPONow Europe is getting its own DMCA. An EU Directive has just been passed, which means the EU member countries will now have to enact national legislation as required in the directive. Many european DMCA-like laws.
Both the US DMCA and the
European Copyright Directive
go back to the TRIPS and other WTO agreements. Both WIPO and WTO are not
exactly in the spotlight of the media, and their history and purpose is not
general knowledge. Here is a quick overview of these two organisations:
The main bodies of WTO's work so far have been the 1996 Copyright Treaty
and the 1995 TRIPS Agreement
which marks its foundation. WTO deals heavily in so-called "Intellectual Property"
and is heavily involved in the Hague Convention which has been critizised
heavily by RMS and
others, including myself.
WIPO, on the other hand, started out as a body administrating international
treaties, and has grown quite considerably from its humble beginnings as
the "United International Bureaux for the Protection of Intellectual Property"
(called BIRPI after the french name). Its focus is still exclusively on
"Intellectual Property", specifically copyright, trademark and patent laws.
In short, WTO is the body which sets the rules, while WIPO is more of an
Both the DMCA and the current European Copyright Directive go back to the
TRIPS agreement, and therefore this piece of legislation is required
of the TRIPS members. However, there is nothing in TRIPS that forces them to
enact these laws, and the harsh anti-circumvention rules are
not required by TRIPS, but the result of careful and very intentional
DVD and CSS LicenseThe CSS license is one of the first commercial agreements to take explicit advantage of the DMCA. Even its timeline coincides nicely with the preparations and then passing of the DMCA.
We know that the number one purpose of the CSS license is to tie in the weak CSS encryption with the DMCA rules against circumvention because we have a WIPO document from a workshop by one Time Warner Analyst and a DVD CCA lawyer that outlines in surprisingly plain words what everything is about:
"Current efforts at building copy protection structures have demonstrated the need for a three-pronged approach. The first prong involves the development of technical protection measures and the making available of such measures on reasonable terms. The second prong consists of laws that support protection technologies and prohibit the circumvention of such technologies. The third prong involves cross-industry negotiations and licenses of technical protection measures."Even the main point of the Anti-DMCA resistance - namely that the law outlaws devices instead of conduct, that it makes knifes illegal instead of punishing murder - has been taken into account:
"For several reasons, a "conduct only" approach is insufficient."The Global Business Dialogue on Electronic Commerce, yet another member of the ever-expanding cast-list, specifically recommends that national law should prohibit devices, too, even though the treaties do not require doing so.
The CSS LicenseThe roughly 70 pages of it are available on the DVD CCA webpage and in court records. However, this appears to not be the end of the story. There are a number of references to NDAs on the DVD FLLC website (FLLC is the Format Logo Licensing Corporation, which apparently licenses the DVD logo you see on every player and DVD disc) and in a presentation, John Hoy, president of DVD CCA, mentions "218 carefully crafted pages" of bylaws.
Detailed in the license and bylaws are the artificial restrictions of the DVD format. Most of those are well-known, such as the region coding which is enforced solely through the CSS license. But the rules are much more specific than that. For example the FAQ at dvddemystified.com mentions that the CSS license disallows digital PCM sound output at 96 kHz and instead requires players to downsample to 48 kHz.
The CSS License creates outright crippled DVD players. Region coding,
unskipable FBI warnings and advertisement, restrictions on output format,
forced reduced quality, macrovision, no screenshots or excerpts - you name
It smells cartel, yet the careful structure of the licensing scheme has so
far successfully evaded investigations.
Licensing StructureThe DVD technology was developed in 1993 by Toshiba/Warner, becoming the formal standard in 1995 when the DVD Consortium agreed on using it over the rivaling format developed by Sony/Philips.
Toshiba and Matsushita developed CSS, most likely answering requests from the movie mafia. One Toshiba employee, John Hoy, then left Toshiba and formed the DVD CCA, whose sole business is the management of CSS licenses.
But there is more to this than just CSS. The below overview of an
organizational structure that includes DVD CCA is taken from a
done by John Hoy for the World Airline
As seen above, the licensing structure is divided over several legal bodies, with LMI being the central management instance and the 4C Entity taking over future technologies. For example, CSS II will be licensed by 4C Entity, not by DVD CCA which licensed CSS (and which, interestingly enough, is the only .org in this mess).
The diagram shows boxes for the Executive Director of every organization, but does not put a name there. We can correct that omission. The name in every one of those boxes is "John Hoy".
Because in fact, DVD CCA, 4C Entity, LMI and most probably DTLA too are one and the same organization. They not only share the same president, they also have the same postal address (225 B Cochrane Circle, Morgan Hill, CA 95037).
These are the organisations behind many of the recent infamous content control technologies. DVD CCA is the licensing body for CSS, 4C Entity is behind the CPRM hard-disk encryption and several watermarking technologies. DTLA licenses DTCP, one of the technologies trying to encrypt a signal all the way from the CD to your speakers. And LMI is, of course, the central management institution for all these.
But why the smoke screen of no less than four different organisations, with
a fifth one (DVI) planned for the near future?
More Proof on IdentityIf identical presidents and postal addresses are not enough, here is additional proof for the theory that all the organisations above are just different fronts for the same group:
DVD/CSS License SummaryThe whole DVD technology is surrounded by a closely-knit network of organisations, license agreements, trademark protections and possibly any legal and organisational protection known to man.
It is quite obvious that it was set up by someone who is very paranoid. Nevertheless, even though the sheer number of organisations, licenses and other agreements involved is mind-boggling, the number of actual players is very small. I want to use just one example, but most of the other players are in equally deep:
Toshiba worked on the DVD technology with Warner in 1993, then with Matsushita on CSS in 1996. These three also are founding members of both DVD Forum and DVD FLLC. Toshiba then acted as interim license entity for CSS until DVD CCA and the three other organisations discussed above were founded, which are headed by a former Toshiba employee.
DVD Technology is controlled by a cartel with no more than a handful of
players, who intentionally try to paint themselves in a much greater
diversity than actually exists. Their extreme reactions towards the Free
Software movement are obvious cartel actions - they fear competition. They
want to keep the market they so carefully cornered all to themselves.
The Near FutureIt appears that they will be successful in doing so in the short run. The USA have the DMCA in place and Europe is heading the same way with it's Copyright Directive.
The central bad point of these laws is that circumvention of "technical protection measures" (TPM) is illegal, no matter what your intent may be. There are narrow exceptions for encryption research and such like, but as seen in Prof. Felten's case, they are weak at best. If you have to sue in order to publish without fear, academic freedom has been done away with.
As you all know, Dmitri Sklyarov has been arrested on DMCA charges, so the point where it stops being funny has definitely been reached. Yet the laws are in place or are being created. I and others are trying to push for less harsh and more balanced national implementations of the TRIPS directives in our respective european nations.
If you want to join this fight, visit eurorights.org
Other than that, keep on coding. I still believe that one bright mind who
breaks through the cartel's latests protection technology will make more
of a difference than 10,000 petition e-mails to the EU Commission.
Postscriptum: ebooksWhat we have seen in DVDs, TPMs are not primarily used to make copying more difficult, but to restrict and control what the user can do with his purchased movie. The same holds true for ebooks. While many ebooks are available in open formats, such as HTML or plain text, companies trying to turn a profit have developed proprietary ebook formats that include TPMs. One example everyone knowns from the Sklyarov case is the Adobe ebook format, but there are others.
All of them put a great number of artificial restrictions on those who bought books in this format. Among others, you can not copy (not even short quotes) text out of the ebook, you can not give it away or lend it to someone else or only do so within strict confines (e.g. lending once a month). You can, of course, not copy it, even though many private copies are perfectly legal and explicitly not restricted by copyright law, such as copying the ebook from your PC to your notebook so you can read it on the train.
Now the first ebooks are appearing that even limit the number of times you can read them, or expire after a certain time.
We are rapidly moving towards the scenario described in RMS' short-story Right to Read. But RMS was an optimist. The real world is moving both more quickly and much more aggressively. Here is a quote from the Microsoft Surveilance System:
"Using technology developed by Microsoft to protect its own intellectual property on the Internet, the AAP has implemented an aggressive Internet surveillance program, which includes an automated, intelligent Internet search tool that searches for unauthorized distribution of eBook content 24 hours a day, seven days a week. The information and evidence gathered by this tool can form the foundation for subsequent civil and criminal enforcement."
Appendix: TLAs and other abrev.