Another fun DMCA case [LWN.net]

Another fun DMCA case

Posted Jul 13, 2005 18:07 UTC (Wed) by ksmathers (guest, #2353)
In reply to: Another fun DMCA case by pyellman
Parent article: Another fun DMCA case

Look, I'm just trying to help you make the paradigm shift from the technical arena to the legal arena. I really don't give a damn whether you think the law is absurd or not, but you are splitting technical hairs in a area where the law is pretty plain.

The DMCA doesn't reference copy protection measures as such, instead it says effective copy protection measures. This includes technical measures which although not intended to protect copyright, never the less have that effect.

The classic example is altering the vertical synch signal on a television broadcast so that an unmodified receiver is unable to lock synch. Vertical synch was never intended as a copy prevention mechanism, but altering that synch has the effect of preventing the copy from being viewed, and is thus an effective copy prevention measure.

Another fun DMCA case

Posted Jul 14, 2005 11:42 UTC (Thu) by rev (guest, #15082) [Link] (9 responses)

Look ksmathers, the posters are trying to get it into your skull that robots.txt does not constitute a copyright protections scheme. The point is, it is a far cry from being mandatory. The point is in any proper copyright protection scheme a wannabee infringer would find himself to need to put effort into gaining access to the material. If a pretended copyright protection scheme does not require any effort at all to gain access to the 'protected' material, but instead requires one to put effort into *NOT* gaining acces to the material, as the robots.txt convention does, it is not a copyright protection scheme at all, much less an effective one.

That is the point ksmathers. Not too difficult to get into the synapses for anyone with minimal analytical skills, now is it?

Another fun DMCA case

Posted Jul 14, 2005 14:42 UTC (Thu) by ksmathers (guest, #2353) [Link] (4 responses)

I don't know why you think that the robots.txt usage has to be mandatory. Whether the control is mandatory, optional, accidental, a matter of convenience, or used for any other reason doesn't play into the law.

Regarding making an affirmative effort, I've already written the same thing myself elsewhere in this discussion. You seem to think that just because the use of robots.txt is optional that this means that no one could show that you had made a special effort to avoid the use of robots.txt. That simply isn't true.

There are several things that would tend to imply to a court that you had made an effort to bypass the control. For example, altered source code on your computer that disables the robots check in some tool which normally uses it, statements from business partners, neighbors, or aquaintances characterizing your activities, suddenly changing a previous business practice, and logs indicating that the robots file was sent but was not respected.

In each of these cases you'd have to explain why you had taken the steps you did, or why the evidence was in error, and either a judge or a jury would decide which was more believable. Coming into court and claiming that 'it wasn't a copy protection mechanism, so bypassing it was okay', would only be a quick way to get yourself a negative judgement.

Another fun DMCA case

Posted Jul 14, 2005 16:19 UTC (Thu) by rev (guest, #15082) [Link] (3 responses)

"I don't know why you think that the robots.txt usage has to be mandatory. Whether the control is mandatory, optional, accidental, a matter of convenience, or used for any other reason doesn't play into the law."

Well, I am curious to see evidence supporting this claim, as your interpretation of "copyright protection scheme" defies common sense. Moreover, the consequences of your interpretation are absurd: I place a file called blahblah.txt somewhere on my web site containing a list of filenames though shalt not HHTP GET from my web site. You neverthless do. You, you dirty copyright infringer, I sue the hell out of you.

I would be interested you quoting the law and/or case law supporting your claim.

Another fun DMCA case

Posted Jul 14, 2005 18:22 UTC (Thu) by ksmathers (guest, #2353) [Link] (2 responses)

Moreover, the consequences of your interpretation are absurd: I place a file called blahblah.txt somewhere on my web site containing a list of filenames though shalt not HHTP GET from my web site. You neverthless do. You, you dirty copyright infringer, I sue the hell out of you.

Well, the situation you describe wouldn't qualify as a DMCA violation unless there were a client/tool that normally reads that file and uses it to decide which files are accessible (the technological measure). Secondly you would have had to use that client/tool, and have bypassed the control in some way.

It seems rather simple to me, namely unless you have taken some affirmative step to bypass the control then you can't very well be liable for bypassing the control. If you did affirmatively bypass the control, then arguing that it isn't a control isn't very useful unless the control is truly absurd; that is unless you can guarantee that a judge or jury wouldn't be able to construe it that way, even with the help of a litigator clearly describing all of the reasons that it should be.

Another fun DMCA case

Posted Jul 14, 2005 19:16 UTC (Thu) by niner (guest, #26151) [Link] (1 responses)

But nobody said, that anyone put any effort in circumventing the "robots.txt copy control measure". There are only a handful of tools out there that even support robots.txt, as it's a file that has a very special purpose and this only in connection with internet search engines.

E.g. wget as one of the tools that support robots.txt even lets you switch off the support via a command line parameter: -e robots=off

The easiest and probably most used way to copy a webpage is to just use the "save page" feature of your webbrowser. An I know of no webbrowser that even recognizes a robots.txt file.

If I wanted to write a service like archive.org which crawls and saves webpages I'd do it in perl and would have to knowingly put effort in supporting something like a robots.txt. So how can you call something a "copy protection measure", if I have to know that you have it and what way you tell me how to behave and actually write code to behave like you want. My other option is to just do nothing and how can I have done something bad if I have done nothing?

Head over to Groklaw

Posted Jul 14, 2005 19:40 UTC (Thu) by ksmathers (guest, #2353) [Link]

Yeah, if the plaintiff can't show that there was any effort to defeat the copy control measure then they are probably hosed.

For what it's worth, Groklaw seems to have picked up the story, so if you'd like to read a lot of different points of view on the subject, I'd suggest heading over to Groklaw. By the way, PJ's view is that robots couldn't be considered a technical copy prevention mechanism. So there's at least one dissenting opinion for you.

Another fun DMCA case

Posted Jul 14, 2005 14:59 UTC (Thu) by pyellman (guest, #4997) [Link] (3 responses)

By repeatedly drawing attention to the term "effective" without addressing the common knowledge that compliance with robots.txt is purely voluntary and actually requires proactive effort, it almost seems that ksmathers is arguing for an interpretion of that word to mean "Operative; in effect", as in "your honor we were, in effect, using robots.txt as a copy protection mechanism" rather than what I think most people assume that term to mean, "producing a desired effect" or "efficacious". "We believe it's a copy protection mechanism, ergo it is"!

If such an interpretation were upheld, it would indeed be a significant "paradigm shift", as winning a DMCA case would be as easy as bringing one. Others have pointed out here on LWN that such an interpretation would lead to such things as "psychic fingerprinting" as a method of copy protection. I can see it: "Now, your honor, through the magic of the DMCA, we will turn this screwdriver into a hammer before your very eyes simply by calling it a hammer".

I doubt that ksmathers is alone in his interpretation, and I almost wish it were true, as the resulting total chaos would virtually ensure that the DMCA would be revisited by legislators.

Peter Yellman

Another fun DMCA case

Posted Jul 14, 2005 18:51 UTC (Thu) by ksmathers (guest, #2353) [Link] (2 responses)

Sorry, I really don't get your argument. Yes, I'm drawing attention to the term 'effective'. I disagree that compliance with robots.txt requires proactive effort. Let me rephrase that: I agree that not complying with robots.txt need not require proactive effort, but there are many uses of robots.txt which are compliant, and which are already encoded in common technologies for accessing web content (the 'wget' tool for example), and therefor require no effort on the part of the user in order to comply with robots.txt.

Whether it is voluntary to use robots.txt or not really doesn't make any difference. Almost all copy prevention technologies are voluntary. There is no law requiring VCRs to interpret brightness signals differently than television sets, but this difference is still the basis for Macrovision's copy prevention technology.

Another fun DMCA case

Posted Jul 14, 2005 20:21 UTC (Thu) by pyellman (guest, #4997) [Link] (1 responses)

You wrote:

> Regarding making an affirmative effort, I've already written the same thing myself elsewhere in this discussion. You seem to think that just because the use of robots.txt is optional that this means that no one could show that you had made a special effort to avoid the use of robots.txt. That simply isn't true.

and

> I disagree that compliance with robots.txt requires proactive effort.

and

>Whether it is voluntary to use robots.txt or not really doesn't make any difference. Almost all copy prevention technologies are voluntary. There is no law requiring VCRs to interpret brightness signals differently than television sets, but this difference is still the basis for Macrovision's copy prevention technology.

First of all, in regard to that last statement: Huh? In the first place, Macrovision apparently enjoys the unique pleasure of having a clause inserted into the DMCA just for its own benefit (http://www.unmediated.org/archives/2005/06/macrovision_in...). Second, are you really comparing the difficulty level of not implementing robots.txt with designing and building a new VCR?

You repeatedly suggest that the difficulty of avoiding a copy protection "scheme" (I'm not even going to use mechanism anymore) is irrelevant, but the rest of us are saying the opposite -- that that is the only rational interpretation of the meaning "effective". Get it? No "psychic fingerprinting".

Finally, if if what you say were true, various senators and the MPAA would not have found it necessary to introduce the Broadcast Flag amendment (which was struck down as an FCC regulation), as they (the MPAA) would have had all the authority they needed under the DMCA.

Peter Yellman

Another fun DMCA case

Posted Jul 14, 2005 22:02 UTC (Thu) by ksmathers (guest, #2353) [Link]

Well, I wish you good luck should you attempt a defense in the future with that approach.