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Tech's love-hate relationship with the DMCA

CNET News.com's Declan McCullagh uncovers a real divide between software and hardware manufacturers when it comes to the subject of what to do about legislation to combat Internet piracy.

WASHINGTON--When it comes to the subject of copyright protection, neither Intel nor Hewlett-Packard can make up its mind what to do.

The two companies seem to simultaneously love and loathe the Digital Millennium Copyright Act, the 1998 law that's famously unpopular among hackers, programmers and the open-source crowd.

Last week, Intel and HP's names appeared on a press release circulated by the Business Software Alliance (BSA) opposing crucial changes to section 1201 of the DMCA. Specifically, the BSA lashed out at a bill that would make it legal to bypass copy-protection mechanisms--as long as you're not planning to circulate the resulting file to tens of thousands of your closest friends.

The BSA, likely the world's most influential antipiracy group, offered the following warning: "Of particular concern, provisions of this legislation allowing the disablement of technological protection measures on copyrighted materials would provide safe harbor for pirates who could easily claim that the 'intent' of their actions were legal even if it resulted in knowingly unlawful infringement and economic loss to copyright owners."

That means researchers like Ed Felten at Princeton University and companies like Static Control that sell toner cartridge chips will remain vulnerable to civil or even criminal prosecution. So will people who sell patches to DVD-burning software or distribute descrambling utilities that let legally purchased DVDs be watched on a Linux computer.

In other words, the BSA, speaking on behalf of its members including Intel and HP, thinks these DMCA prohibitions should remain intact. So it opposes two related bills in Congress--one championed by Rep. Rick Boucher, D-Va., and the other by Rep. Zoe Lofgren, D-Calif.

Yet Intel, speaking individually, has been lobbying to fix the same portion of the DMCA. Intel's name appears at the top of Boucher's list of sponsors of his bill--anathema to the BSA--that would defang section 1201 of the DMCA. The law currently says that "no person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component" that is designed to bypass copy-protection schemes.

The split highlights a real difference between software and hardware manufacturers.

HP, too, appears to differ with its own trade association. During a meeting with CNET News.com last month, HP Senior Vice President Pradeep Jotwani characterized recent uses of the DMCA as "stretching it." (HP appears to have learned its lesson after invoking the DMCA itself last year, then hastily beating a retreat.)

The split highlights a real difference between software and hardware manufacturers. While they may be longtime allies on everything from free trade to mandatory stock option expensing and broadband implementation, software companies are more at risk to Internet piracy than hardware makers. That means they're more eager to endorse laws that intend to thwart copying, even if their side effects hinder research and punish heretofore-legitimate activity with hefty prison terms.

"We're not on the board of BSA so we didn't have a vote," Intel spokesman Bill Calder told me. "We probably would have been the lone nay vote...On questions of circumvention and the DMCA elements and circumvention for fair use, we don't really have a hard and fast position, but we do think it's time to get this discussion back on the table. It's important to get it into the public debate and we support (the legislation) at least for that reason."

For its part, the BSA downplays the schism within its membership. "This is not an unusual circumstance," says Emery Simon, a top BSA attorney. "We work by consensus. We would love to work by unanimity. But I don't find unanimity even inside my own head. This is an instance where the consensus of our organization is just what I told you...Where we stand on the Boucher and Lofgren proposals is that they've identified really important issues. The solutions they're proposing would swallow up the rule. We think the rule is critically important."

Simon also says that concerns of DMCA opponents are mistaken: "I don't accept the proposition that the DMCA does per se bad things to security researchers." Simon said a moment later, however, that the DMCA could prohibit the distribution of cheat codes, serial numbers or descriptions of how to bypass copy-protection dongles. "It depends on the factual situation," said Simon. "Under certain circumstances, yes."

A modest proposal
To its credit, Intel has taken a leadership position in Silicon Valley in pointing out the problems with expansive copyright proposals.

Intel may have the courage to disagree publicly with its own trade association, but will other companies do the same?
A year ago, Intel co-founder and Vice President Les Vadasz correctly

When Dutch cryptographer Niels Ferguson announced that he had unearthed flaws in Intel's HDCP (High-bandwidth Digital Content Protection) specification, Intel said it would not invoke the DMCA to silence him. Last month, Intel sponsored a Digital Rights Summit that, in conjunction with a second conference at the University of California at Berkeley, may prove to be a turning point in this debate.

But Intel is just one company, and fixing section 1201 of the DMCA will require a groundswell of support for the Boucher (H.R.107) or Lofgren (H.R.1066) bills. Intel may have the courage to disagree publicly with its own trade association, but will other companies do the same? And where will TechNet, which views itself as Silicon Valley's political voice, come down?

Here's a suggestion: The next time you're considering a big computer purchase, ask the company where it stands on those two bills. See if you can get a yes or no answer. Then let me know. If I get enough responses, I'll write about them in a future column.

A good starting place is BSA's list of its 22 members, which includes Adobe, Apple, Autodesk, Borland, Macromedia, Microsoft, Network Associates, Symantec, Cisco Systems, Entrust, HP, IBM, Intel, Intuit, Novel and Sybase.