MMMM! MmmMmMM!

So, in the continuing story about the cease and desist notice with respect to my linking directly to a publicly available store of journal articles, a lawyer told me to

“revise your website as your publication of the means by which you illegally obtained access to our website is a violation of the Digital Millennium Copyright Act.
As you may know, the DMCA imposes both civil and criminal penalties on those
who circumvent or assist others in circumventing technological protection
measures applied to copyrighted works. Our online system is protected
through various authentication methods and your publication of any type of
work-around for others to follow in avoiding having to be properly
authenticated as an authorized user of our copyright protected products and
services is a violation of the DMCA.

So, I’ve “unpublished” my last post. Because the last thing I need to do right now is have arguments with lawyers.

What I found odd, though, is that it’s supposedly illegal to write about a publicly-available workaround. Now, for argument’s sake, let’s say that instead of linking to a publicly accessible article, I robbed a bank. Now, to the best of my knowledge, it would be perfectly legal to write about the details of how I went about robbing a bank — scouting the place, disarming security systems, etc. etc. People have written about the details of committing crimes forever.

Yet, as this lawyer is having me understand it, it’s not legal for me to write about how I stumbled upon a trove of publicly accessible, though copyright-protected, information, because of the DMCA. Is this true? I don’t know.

I do know this. I just donated $500 to the EFF. I ask that you do something, too.

17 thoughts on “MMMM! MmmMmMM!

  1. The first thing we do, let’s kill all the lawyers. – Shakespeare

  2. After reading Lessig’s “The Future of Ideas” I too donated a chunk of change to EFF. After reading the latest issue of the UUA’s monthly magazine, I’m upping it. Omnipoint (a telecommunications company, now T-Mobile) sued the town of Wellfleet, Massachusetts for *damages* under the *Civil Rights Act of 1964* after the town tried to deny a permit for a cell tower. Town leaders felt it had to back down under the threat of the potential cost if they lost.

    We all thought that Orwell’s 1984 was about the government. Who knew it was really about corporations?

  3. Most governments were set up to service the people, but the individual got lost in the translation because it is always people who own companies; people have rights, it is only that people who have money have more rights.

    This is why communism is a scandal and capitalism sucks. I wish they came up with a system where status and power were measured in “niceness”. *large dreamy sigh*

  4. Most governments were set up to service the people, but the individual got lost in the translation because it is always people who own companies; people have rights, it is only that people who have money have more rights.

    This is why communism is a scandal and capitalism sucks. I wish they came up with a system where status and power were measured in “niceness”. *large dreamy sigh*

  5. Marion the Librarian

    Publishers and data aggregators are able to do what they do to provide quality resources for study and research by charging subscriptions. The publishers don’t like it when the aggregators don’t protect their licensed content. The aggregators don’t like it when their customers don’t protect what they subscribe to. Go to almost any college or university library and you can get all of the great content in ProQuest for “free” anyway. Actually, your tax dollars or tuition have paid for it in advance. The Internet often gives the illusion of “free” information… but we also expect it to generate an economy. Looking for backdoors undermines this economy (whether or not we detest lawyers and want free things).

  6. Marion — I understand that, and in no way am I asking sympathy for having pointed out the backdoor.

    The lawyer’s letter, though, raised another issue, a very basic one about freedom of speech, and how, if the lawyer’s reading of the DMCA is accurate, our ability to speak (and write) freely is being strongly curtailed.

  7. This seems related to the 2000 DeCSS linking case. Judge Kaplan referred to hypertext links as the ‘functional equivalent’ of providing the information directly. Linking to the archive, or linking to your post, or linking to Google’s cache of your post could be a violation of the DMCA.

    Providing a non-functional equivalent seems to be a legal gray area (if not a moral one). Reference the DeCSS Haiku for instance. Or a dramatic short story about how you stumbled upon the ‘backdoor’.

    What I find odd is that, as of this morning, ProQuest hasn’t shut down that link. Now that the information is out there (as evidenced by Google) it seems like that might be the smart thing to do if they care at all about securing the content.

  8. Lawyers like using scare tactics as a simple means of achieving their clients’ intentions… Ugliness usually ensues…

    Food for thought: Would Peter have posted the original url if ProQuest or DMI had been his client?

  9. Perhaps they should send the folks at Google a cease and desist too. I checked your Google cache and can read the post just fine.

    ;&)

  10. Fortunately, this doesn’t violate the (new) Bill of Rights.

    http://qwer.org/billofrightslite.html

    :)

    Barlow is the man.

    Perhaps if you drop him an email ( barlow@eff.org ) he’d chime in on how this is like (or not like) the DeCSS case.

  11. Peter: “our ability to speak (and write) freely is being strongly curtailed” – true, but that’s a bit more unremarkable than it may seem, since our first amendment rights are not absolute and are limited all the time. The tired old example in poli sci classes is that you’re not allowed to yell fire in a crowded theater. It would be interesting to consider if there are new digital equivalents to this? And as much as we may hate lawyers or corporate interests they may represent, the courts will probably be where much of this will get decided.

  12. Oops, should have clarified – you’re only not allowed to yell “Fire!” in a crowded theater when there actually isn’t one. Feel free to yell when there is.

  13. For a bit of fun, create a password protected page with your email address on it. Then the next time a lawyer sends you an email *you* can claim *they* have circumvented the protection mechanism.

    The fact your email address is available elsewhere is simply an oversight and in no way forgives their breach of the DMCA.

  14. I would imagine that they would need to prove that they made reasonable effort to protect said IP in order to justify a suit against another party.

  15. I just read this quote today and I think it’s awesome:

    It is by universal misunderstanding that all agree. For if, by ill luck, people understood each other, they would never agree.

    Charles Baudelaire

    Just thought I’d share.

    Mike

  16. I just read this quote today and I think it’s awesome:

    It is by universal misunderstanding that all agree. For if, by ill luck, people understood each other, they would never agree.

    Charles Baudelaire

    Just thought I’d share.

    Mike

  17. I just read this quote today and I think it’s awesome:

    It is by universal misunderstanding that all agree. For if, by ill luck, people understood each other, they would never agree.

    Charles Baudelaire

    Just thought I’d share.

    Mike