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Hazards of the DMCA

UserLand Software CEO Dave Winer writes that muddled thinking about technology by government policy-makers has produced the first real demo of a nightmarish scenario.

One of the hazards of the Digital Millennium Copyright Act, or DMCA, came home Thursday in a decision by the leading search engine, Google, to ban a site that's critical of the Church of Scientology. The net effect was that a search for the term Scientology yielded links only to sites controlled by the church itself.

The DMCA has a provision for copyright violations. If a party believes its rights are being infringed--in this case, the Scientologists--it can send a demand to an Internet service provider anywhere in the chain of access for the offending material. In this case, that was Google (a bit of a stretch, since Google is hardly an ISP). And if the ISP complies, it cannot be held liable for the infringement.

The site that's being blocked, Xenu.net, is in Norway, so it's not subject to the DMCA. The Scientologists can't shut the site itself down because it's outside the United States. So they sent a demand to Google, which is based in California, and the company complied with the request to remove the content from its index. (Google subsequently claimed it had only removed certain pages from the site because of a copyright dispute and that Xenu.net's home page was "inadvertently" removed.)

According to the DMCA, the accused infringers have the right to demand that Google reinstate the content, but there's a catch: If they do, they would also have to agree to the jurisdiction of the U.S. courts.

Regarding the question of whether there's a copyright violation, I've reviewed the site. If there's an infringement, it's not easy to find. In addition, it's clear that the purpose of the Xenu site is to present an alternative view of Scientology.

There's no doubt that this is free speech. Yes, it's in Norway, but the Internet is pretty seamless about national boundaries. The site is written in English. It's got good data and a point of view. People who want to know more about Scientology and who look to Google won't find it. That's wrong.

We're getting the first real demo of a nightmarish scenario--a constitutional one, set up by the DMCA.
We're getting the first real demo of a nightmarish scenario--a constitutional one, set up by the DMCA. And it looks like it's going to get much worse before it gets better.

A bill was introduced Thursday in the U.S. Senate by Sen. Ernest Hollings and five other senators that would redesign all computers so that one of the two basic things they do is controlled by Congress. This is reminiscent of the state legislature that decided that pi, the ratio of the circumference of a circle to its diameter, should simply be three, instead of the endlessly fascinating irrational number that it actually is.

The law didn't pass, and neither should the Hollings bill.

Even in these tough economic times, it would be hard to recruit capable programmers to perform an act as utterly idiotic as trying to disable copying on computers.
The Consumer Broadband and Digital Television Promotion Act would require redesigning all computer and software systems, as well as networks including the Internet, so that every act of copying would be subject to what's known as digital rights management, a brilliant spin on an old idea: copy protection. It failed in the '80s in the software business and the movie business because copying is so very basic.

Computers do a lot of copying all the time, and almost all of it is benign. To insert a new controller into every bit of code and hardware that does copying would be like diverting the Mississippi River to irrigate the Great Plains, another idea Congress contemplated at one time. You can't do it, and it won't happen; there aren't enough dollars or programmers in the world to make it so. Even in these tough economic times, it would be hard to recruit capable programmers to perform an act as utterly idiotic as trying to disable copying on computers.

The law may pass, but the future it envisions will not. The government will eventually realize that the law would cripple even the government's own computers. At some point, the government must come to its senses, stop listening to industry executives (many of whom are in bed with the entertainment industry), and talk directly to some scientists and engineers to find out what's possible.