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To read comments to this article, go here
Attacking With The DMCA's Section 1202
Tuesday, February 17 2004 @ 08:46 PM EST

What if SCO actually does sue end users on the 18th or thereabouts, and suppose it tries to take the DMCA to its logical, literal and absurd extreme, then what? To understand -- to the degree we can without knowing the terms of the supersecret sealed USL/BSDi agreement SCO seems to think Linux end users are supposed to obey without being able to read it and despite not being a party to it-- we need to understand just how wonderfully the DMCA may seem suited to SCO's needs.

Maybe a quick tour of the DMCA and how it works would be timely, keeping in mind that SCO has been nothing if not creative, and they are therefore possibly planning something we've never quite seen before. They have hinted, particularly in the Harvard appearance, that their action will be based on Section 1202 of the DMCA, which forbids stripping off copyright notices, which they claim are missing from some header files they allege they have copyrights on.

Do you say, But I never stripped off anything? Let's see how the DMCA is written, and then we'll have an idea of the level of mischief that may be cynically twinkling in somebody's eyes.

First, here is the part of the DMCA that talks about stripping off copyright notices, including penalties and damages:

Sec. 1202. Integrity of copyright management information
. . . (b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person shall, without the authority of the copyright owner or the law--
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

(c) DEFINITION- As used in this section, the term `copyright management information' means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. . . .
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information. . . .

Sec. 1203. Civil remedies

(a) CIVIL ACTIONS- Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.
(b) POWERS OF THE COURT- In an action brought under subsection (a), the court--
(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;
(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;
(5) in its discretion may award reasonable attorney's fees to the prevailing party; and
(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).

(c) AWARD OF DAMAGES-
(1) IN GENERAL- Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either--
(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or
(B) statutory damages, as provided in paragraph (3).
(2) ACTUAL DAMAGES- The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.

(3) STATUTORY DAMAGES

(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

(4) REPEATED VIOLATIONS- In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within 3 years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.
(5) Innocent violations-
(A) IN GENERAL- The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation. . .

Sec. 1204. Criminal offenses and penalties
(a) IN GENERAL- Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain--
(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense. . . .

(c) STATUTE OF LIMITATIONS - No criminal proceeding shall be brought under this section unless such proceeding is commenced within 5 years after the cause of action arose.

See any room for mischief there? Any money-making opportunities? Perhaps you discern why the terrified mommies of 12-year-old music downloaders pay the RIAA off without going to trial. It seems on first reading a bit like the no-win balance in the trials in the Middle Ages. If you survived a dunking underwater for 5 minutes, you were declared innocent.

Of course, as the law plays out, it isn't quite that bleak, according to the attorneys I've asked. You have to actually have a copyright to go after someone in a civil action. That is a bit problematic for SCO. Novell stands like an elephant in the courtroom. They claim they hold the copyrights. How can anybody be held guilty of copyright infringement, when nobody knows to date who actually owns the copyright on these files? That is one of the two things SCO will have to prove to sue anyone for copyright infringement: 1) that they have ownership of the copyright and 2) that the defendant copied without authorization. That is in a "normal" RIAA-style DMCA action. Under Section 1202, there is a separate issue: stripping off copyright notices and distribution of files that have been stripped of their copyright management information.

There would seem to be a number of of other hurdles facing SCO. There is Linus claiming authorship of header files. Then there is the fact that SCO, as Caldera, distributed Linux under the GPL itself. How can it be infringement for end users to do the same? And Caldera also distributed Ancient Unix under a BSD-like license.

You will have noticed that the judge in its discretion can reduce or totally nix any damages if "the violator" "was not aware and had no reason to believe that its acts constituted a violation". Here is a case, Kelly v. Arriba Soft Corp., where the defendant was charged under Section 1202, and the judge found exactly that, that the "defendant did not have 'reasonable grounds to know'", so it was dismissed. The judge explained fair use thoroughly too. If you wish to see the entire history of the case, including appeals, EFF has it all. The top one on the list on that page is also worth reading, the Ninth Circuit's revised opinion, issued July 6, 2003, which said the earlier ruling had gone too far in one area, but upheld the fair use reasoning, which it also discusses is some helpful detail. Fair use is a defense.

Then there is the question of whether header files are copyrightable in the first place, with or without a sealed agreement. And how can SCO prove the files had copyright information intentionally removed? By whom? End users? Hardly. It would be hard to find defendants more in the Kafka-esque dark than these poor critters.

How do you prove wilfulness when there is such a confusing picture as this? And then I think one might reasonably ask: how has SCO been damaged by missing copyright notices, even if every other factor were handed to them on a platter? Do they argue to the judge that they suffered no market harm but they want the statutory damages, just because the law provides it as relief? Relief for what? Maybe the judge will even notice that the DMCA, at its worst, was intended for "crimes" quite different from the current set of facts. Obviously, it was intended for those causing significant financial damage to a copyright holder. We are, after all, talking significant financial remedies here and even jail time in a criminal action, which happily SCO can't bring on its own. How and by what extremist logic can it be argued that this statute should be applied to folks who bought their GNU/Linux software in good faith under the GPL, some of them even from Caldera, never touched or stripped off any copyright notices, have no clue who the actual copyright owner is, were not a party to the sealed agreement allegedly requiring copyright notices, are not allowed to even read the agreement so as to know what it is alleged somebody is supposed to do to what files, and would probably be happy to tack on any validly required copyright notices if asked? What kind of Medieval court would punish such a defendant? Punish? For what? Even if they did, the statute covers only distribution, not use.

Maybe none of the above is what SCO will end up doing, and this is just my worst-case imaginings. But if they do, I think their most recent SEC filing is correctly predicting that they can expect a negative reaction.


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