[DMCA-Activists] On the Candidates and Information Freedom

[Seth Johnson]

-------- Original Message --------
Subject: [DMCA_Discuss] Would John Kerry defang the DMCA?
Date: Wed, 27 Oct 2004 12:43:36 +0400
From: Vladimir Katalov <address@hidden>
Organization: ElcomSoft Co.Ltd.
To: address@hidden

Would John Kerry defang the DMCA?
By Declan McCullagh
October 25, 2004, 8:16 AM PT

http://news.zdnet.com/2100-1009_22-5425019.html

Commentary -- John Kerry finally has hinted at a position that
would mark one of the first real differences from his Republican
rival.

In a barely noticed remark on Thursday, the Democratic senator
said he might support defanging the Digital Millennium Copyright
Act (DMCA) -- the unpopular law that has prompted
take-to-the-street protests from the geek community.

If Kerry is serious, that would be a remarkable metamorphosis on
a law that the Senate approved without one dissenting vote. It
would also be remarkable because, contrary to what Kerry and
President Bush tell you, few differences exist between the two
White House hopefuls on nearly any topic imaginable.

Both supported the invasion of Iraq, both applauded the Patriot
Act, and both agreed with sweeping expansions of federal spending
on education. Neither politician has the moxie to say in public
that he agrees with gay marriage, neither will end the war on
drugs, and neither would countenance full privatization of Social
Security.

Poor Jim Lehrer of PBS, who moderated the first presidential
debate, was left scratching his head about what actually
differentiated the two men who would be president. Was it Kerry's
pledge to undertake two-party talks with North Korea versus
Bush's preference for six-party talks?

On technology topics as well, as I wrote in a column in June,
there tend to be distinctions without differences. The Democratic
and Republican candidates have been singing in two-party harmony
about technological innovation, broadband, Wi-Fi, spectrum
auctions, and their mutual love for the research and development
tax credit.

Still, a few divergences became clear last week with the release
of a set of answers that the Bush and Kerry campaigns provided to
a dozen questions posed by the nonpartisan Computing Technology
Industry Association.

Inalienable right to make backups

Kerry's campaign said the senator might support rewriting U.S.
copyright law to let Americans make backup copies of digital
media they've purchased.

Pay attention, folks: In the tech world, this maybe-or-maybe-not
pusillanimity counts as headline-grabbing news. Right now, under
the DMCA, it's unlawful to make a backup copy of copy-protected
DVDs or computer programs. The 1998 DMCA broadly bans
"circumventing" anticopying schemes, and selling software that
can do so is a criminal offense.

Kerry's survey response said he is "open to examining" whether to
change current law "to ensure that a person who lawfully obtains
or receives a transmission of a digital work may back up a copy
of it for archival purposes" or transfer it to another device.
CompTIA's open-ended question had merely asked "What should
federal policy be toward protecting intellectual property on the
Internet?"--without mentioning backup copies.

This is no theoretical debate. 321 Studios was forced to shut its
doors in August, after a federal judge blocked the small company
from selling its DVD backup software. 321 Studios' utility, the
judge said, ran afoul of the DMCA's anticircumvention
restrictions.

Kerry's answer appears to be a tentative attempt to side with
consumers and electronics makers over the entertainment
industry--a rare display of political independence by a prominent
Democrat. (Hollywood firms hand money to Democrats over
Republicans by a 2-to-1 margin.)

How serious are these guys?

It's not clear, though, how serious Kerry truly is. Reps. Rick
Boucher and John Doolittle introduced their bill to defang the
DMCA more than two years ago and have been searching in vain for
a Senate sponsor. Kerry, a member of the committee overseeing
e-commerce, could have lent a hand but never did. If the senator
had time last year to announce two bills dealing with tariffs on
imported "pouch tuna" from Indonesia, he surely had time to help
Boucher and Doolittle.

The Bush administration's stand, on the other hand, is entirely
clear: defend the DMCA at any cost. Bush's reply to CompTIA said:
"I strongly support efforts to protect intellectual property and
will continue to work with Congress to ensure all intellectual
property is properly protected."

Buttressing this stand is a report released this month by Bush's
Department of Justice. It insists that the DMCA remain intact,
saying U.S. law must prohibit "deliberate and unauthorized
circumvention." Meanwhile, Bush's trade negotiators have been
busy exporting the DMCA to Australia, Chile and Singapore, and
Attorney General John Ashcroft invoked the DMCA when trying to
imprison Russian programmer Dmitri Sklyarov.

Two other modest differences arose in the candidates' responses
to CompTIA's questions about voice over Internet Protocol (VoIP)
and spam. In both cases, Bush was far more explicit about what he
would do if Americans pick him on Election Day.

On VoIP, Bush praised the technology and suggested that
regulators treat it like e-mail--that is, take a laissez-faire
approach--instead of weighing it down with the raft of rules that
apply to the telephone network. On unsolicited bulk e-mail, Bush
predictably touted the Can-Spam Act, which he signed into law
last December.

Oddly, Kerry ducked both questions. In both cases, he said only
that he's "open" to considering any approach.

That might work for a small-town lawyer running for election as a
state legislator. But it's unseemly when coming from a guy who's
been in the Senate for two decades and is a senior member on the
only two subcommittees that oversee, well, VoIP and spam. It's
also important because the Federal Communications Commission
voted 3-2 along party lines in February to exempt "pure" VoIP
companies from traditional telecommunications regulations. The
two Democratic commissioners opposed that move. What side would a
President Kerry take?

Unfortunately, both major-party candidates are savvy enough to
realize that Americans don't pick presidents based on their
telecommunications policies. The problem is that there are so few
substantial distinctions in other areas. Just ask Jim Lehrer.

_______________________________________________

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