Are Our Rights Illegal?

I f you surf the Web, which just about everyone does, you may have viewed one of the large number of links to a program called DeCSS which can be used to break DVD encryption and whose use has resulted in a high degree of controversy. What you may not have directly viewed is a little known U.S. Federal Law referred to as the Digital Millennium Copyright Act (DMCA) that, when enforced, threatens to make many rights we take for granted subject to finding us on the wrong side of the law. Let me explain. Under the DMCA any person that sells a tool that can be used to break copy protection is performing an illegal act that, when prosecuted, can result in jail time. This law was passed due to considerable backing from many media firms and recording interests that represent some of the same players that sued to prevent the marketing of Betamax and VHS tape recorders during the old millennium. Obviously they lost that battle, which was probably for the best since the growth in the sale of tape recorders resulted in a new industry in the form of pre-recorded tape sales whose annual revenue now exceeds movie box office receipts. Perhaps learning from the past, media organizations were able to use their influence to ensure passage of the DMCA. However, not learning from the past, this act threatens to do more harm than enhance the revenues of media organizations. Although over four years old, it wasn’t until last year that the full extent of this law was applied. During 2001 Alexander Katalov, President of the Moscow-based ElcomSoft firm, was hauled into the federal courthouse in San Jose, CA due to his firm selling a program that breaks the copy protection in Adobe eBooks. What is most interesting about this case is the request to dismiss it on constitutional grounds. The company’s lawyer notes that the program developed by ElcomSoft is sold to legal eBook owners to allow them to recover lost passwords, make backups, and copy their books onto handheld devices, such as a Palm. This means according to the ElcomSoft lawyer that it shouldn’t be a crime to allow people legal access to what they legally paid for. While we wait for the legal system to provide a ruling on this interesting case, we need to think of the various password recovery programs many of us periodically use to assist our router, server and PC efforts. If ElcomSoft loses their request to dismiss the lawsuit on constitutional grounds, does this mean we need to stop using our password recovery programs? If ElcomSoft loses their lawsuit does this mean vendors selling password recovery software are committing an illegal act? Will the DMCA police next turn their guns on the sellers and users of other password recovery programs? While we wait for this case to be resolved we need to consider the potential effect of an adverse ruling to ElcomSoft’s dismissal request. Instead of being passive to the current misfortune of a Moscow-based software house, we need to make lawmakers aware of the can of worms they put into effect. If allowed to stand, the DMCA could make the rights we take for granted illegal. Thus, you may wish to put your pen to paper and send a note to your elected officials to offer your opinion on the DMCA and how its application can adversely effect many types of operations we need to periodically perform. As my Macon TV announcer would say, ‘That’s my opinion—what’s yours?’