DMCA 2.0 - Just Steal CDs

First published here.

Ed Felton recently pointed out that under the proposed extensions to the Digital Millennium Copyright Act (or DMCA 2.0 as it is becoming known as), non-commercial copyright infringement such as file sharing would carry a bigger penalty than manslaughter - up to ten years in the big house.

Compared to the average sentence for manslaughter (33 months in jail), one really does have to wonder if Lamar Smith has actually thought about his proposed bill, or if the rush of campaign contributions from Hollywood has gone to his head, because under the DMCA 2.0, you'd be better off going old school and just stealing CDs from Wal-Mart.

That's larceny and will get you a whopping 8.3 months in jail if the Wal-Mart rent-a-cops catch you on the way out.

The same goes for the increased anti-circumvention provisions that are on the table. DMCA 2.0 would make it illegal to simply have anti-circumvention tools in your possession with intent to distribute them, and it's easy to imagine a federal prosecutor arguing an internet connection serves as proof that an unlucky researcher was planning to share their 133t h4xor tools with the world.

I can see the headlines now: "File sharing Down 2%, Petty Theft up 862%", followed closely by "IP Laws Backfire On U.S., Smart Yanks Flee Country".

So what happens if you can't be bothered cracking it yourself and just go find the guy who designed the copy protection and point a shotgun at him until he posts the source code online? Well, that would add up to about 20 years. So you'd be better off just sending anonymous threats about his family - that's only worth about seven years on average, and it'd be easier to argue you weren't actually serious about the whole thing if you were to be caught.

Even if you did get sent down for it, you'd still come in three years under the sentences being handed out to geeky researchers.

And hey, if you only get five months inside for telling eBay's ceo you're going to "haunt and hurt you and your family," I'm sure there will be some one out there willing to sacrifice themselves so that everyone can enjoy unencrypted HD movies.

Or more likely, someone driven to insanity by overly restrictive DRM (and I understand "temporary insanity" goes down well with the judge). Just. Copy. Damn. Thing. To. Ipod. Ahhhhhh!

It's also easy to imagine a scenario where the author of a virus and the guy who develops a patch for it end up sharing the same cell. All the virus writer would need to do is include some rudimentary encryption in his code to ensure no anti-virus researcher would be keen to write a fix if the only way to do so would be to crack the encryption.

I wonder how many anti-virus providers would be ready to step up and fight this in court? I wonder how many of their employees would agree to work on a fix in the first place, considering they themselves would be in the dock facing a federal prison sentence?

Perhaps Lamar Smith believes some intellectual property is more worthy of protection than other intellectual property? If intellectual property is an absolute right, as some misguided people seem to think it is, we should remind them that an individual's rights don't suddenly disappear when they break the law. (Well, Guantanamo Bay aside, an individual's rights don't suddenly disappear when they break the law).

The author of an annoying, but harmless, mass mailing worm should get the same protection for their work as anyone else. Right?

What if the worm was genuinely written to explore and evaluate security holes, like to find out how many copies of a dodgy mail server are in operation? A very black hat way of going about things, but the intention behind the act may be as worthy as the corporate anti-virus researchers (and also the most practical way of fixing the problem if your warnings about security holes have been ignored previously).

Pfft! Who cares? Let the courts figure it out. They're the ones who're experienced in dealing with ill-conceived laws after they've been passed.

It seems that the entertainment cartel's men in Washington have gotten a little carried away with protecting their interests online 'cause if the DMCA 2.0 passes, you be better off giving up p2p and taking a full time job as a heroin dealer - you'd actually be able to afford the CDs and good lawyers then.