Fair use and abuse

We've reached a critical stage on so many
different fronts that it's hard to imagine they're
not all somehow intertwined. We shouldn't
doubt our ability to influence change in what-
ever forum the battle we choose is being waged.
This is the time to speak up.

Recent changes in the way our government
works seem to no longer be about terrorism - if
they ever were in the first place. As freedoms
disappear and power becomes more centralized,
a greater number of people are beginning to re-
alize that we're moving into some very danger-
ous ground.

The "reorganization" of the FBI on May 29
was enough to shock a lot of us into paying at-
tention. Now, all of a sudden, we no longer have
an agency whose sole purpose is to investigate
crimes. Their new reason for being is to prevent
the crimes in the first place. Splendid, you might
say. Anything that helps to stop crime has got to
be a good thing, right? This is precisely what
you're supposed to say. However, if you take an
extra few minutes and think it through, you may
come to the conclusion that this solution may in-
deed be a worse crime itself.

Let's look at what we're now facing. For the
moment we'll confine it to the online world and
the hacker culture. The FBI now no longer has
to have any evidence of a crime being commit-
ted or even planned. They can wander onto IRC
or an AOL chatroom and simply capture every-
thing and then, at their leisure, look for things
they don't like. The users responsible will then
face a full investigation - all on the basis of
words spoken in a public forom. The potential
for targeting of certain individuals or even
groups for prosecution is now in the stratos-
phere. People attending 2600 meetings will be
subject to the same kind of scrutiny. Agents may
now attempt to infiltrate organizations even
when there is no sign of any criminal activity -
just to keep an eye on things. If this doesn't
make alarm bells go off in your head, there's
probably not much we can say to make you see
the distinct threat we're now all facing.

How much does this really have to do with
hackers? Isn't this all about capturing terrorists
and stopping really bad people from doing really
bad things? That's what it was supposed to be.
But clearly these goals have been subverted. Ac-
cording to a Fox News report on May 30, 2002:
"The FBI's top new marching orders will focus
on terrorists, spies, and hackers, in that order."
Granted, this is Fox News and they're liable to
interpret anything from credit card fraud to on-
line pornography as a derivation of computer
hacking. The feds themselves refer to their new
focus as "counterterrorism, counterintelligence,
and cyber investigations." But the latter cate-
gory in particular is so nebulous that literally
anything that someone involved in computers
might be doing would be open to scrutiny. And
therein comes the proverbial chilling effect.

Not convinced yet? The FBI now can check
various commercial databases and see what
videos you've been renting, what books or mag-
azines you're reading, what's popping up on
your credit card bills, where you're traveling to,
etc. Even your medical records won't be safe
from their prying eyes. And all without any evi-
dence that you've done anything wrong! In fact,
approval from FBI headquarters is no longer
even needed. Your local field office can do this
on their own if they feel like it. And those who
doubt that federal agents would abuse the power
they hold need only look back at the Bemie S.
case of the mid 90's.

In other countries government agents rou-
tinely infiltrate law-abiding groups of people
who disagree with government policy. They
then succeed in disrupting and dividing the
group, at times even pushing them into illegal
situations that never would have happened oth-
erwise. And that gives the authorities carte
blanche to move in. (In the United States we saw
this occur decades ago with the FBI's counterin-
telligence prograin- dubbed COINTELPRO. In-
nocent people involved in the civil rights,
antiwar, and countercultural movements were
spied upon and harassed by these agents until
such conduct was outlawed in the 70's.) Now
this KGB style of dealing with dissidents, mis-
fits, and individual thinkers has come back
home wrapped in a flag. We can only wonder
how many innocent people will be caught up in
its wake.

It's an awfully odd coincidence that word of
the FBI's apparent bungling of an investigation
that might have detected the September 11 plot
came literally days before the largest such reor-
ganization in our nation's history. That story
managed to convince a number of people that
change was needed. But the subsequent events
managed to also slap a few faces out of their
deep sleep of apathy and blind acceptance.

The fear now of course is that any resistance
will be too little too late. But it doesn't have to
be that way.

When we were sued two years ago by the
motion picture industry, it caught a lot of us by
surprise. The Digital Millennium Copyright Act
was already law. What chance did we have to
fight its existence? Was it not also too little too

We don't think it was. Nor do the thousands
of people who supported us through the entire
ordeal. And as we look around today, we realize
that we have become so much stronger and more
unified as a result of the action taken against us.
We lost the case. And we lost the appeal. And,
after considerable consultation, soul searching,
and debate, we believe it's time to change the fo-
cus of this fight.

We wanted to take this all the way to the
Supreme Court. But, as legal experts who know
considerably more about the system than we do
emphasized, there was an infinitesimal chance
that they would even agree to hear the case and
even less of a likelihood that we would win if
they did. Both rejections ran the risk of setting
the clock back as far as legal precedent went and
this, quite frankly, is not the time to lose even
more ground.

But, painful as this decision was to reach,
we've come out of it learning something impor-
tant. We've won. Maybe we weren't victorious in
court but that doesn't exactly tell the whole
story. Look around you. People have become
aware of the evils of the DMCA. When this first
started years ago, so few people knew anything
about it - that's how it became law in the first
place. But now it seems to be on everyone's
minds as it becomes every bit as pervasive as we
knew it would.

The industries that embrace the DMCA have
fallen into disrepute with the general public as
their true motives of sheer greed become more
and more obvious. The recent attempt to charge
fees for Internet broadcasting in the name of the
DMCA outraged a whole new crowd of people.
The efforts by the recording and motion picture
industries to control and eventually bury any as-
pect of fair use by consumers has backfired hor-
ribly. People are realizing that such new (and
mandatory) innovations as digital television will
give them less freedom and flexibility if they
don't challenge these laws. Attempts to control
copying of CDs have ranged from the absurd to
the criminal. It was recently discovered that
simply using a magic marker to write over a cer-
tain section of a "copy-protected" CD was
enough to defeat the entire system leading many
to wonder if magic markers were now illegal ac-
cess devices under the DMCA. And Macintosh
users were horrified to discover that inserting
one of these CDs into their machines would of-
ten cause actual damage to the machine! In fact,
Philips, the company that invented the CD, says
that these things don't even meet the definition
of a CD and should not be sold as such. We en-
courage people who find these products in the
CD section of a store to separate them to avoid
confusion and false advertising, not to mention
possible costly repairs for people who unknow-
ingly try to play these things in their computers.

We'd like to say that our early battle with the
DMCA was what started to wake people up. But
it wouldn't be fair to those people who really did
that job - the MPAA, the RIAA, and all of the
other corporate and government colluders who
joined forces to establish a stranglehold on the
technology and dupe the public. Once their true
colors became known, it was a foregone conclu-
sion that they would begin to self-destruct in an
expanding cloud of greed.

With the ominous changes in federal agen-
cies, we are looked upon by many as little better
than terrorists. Warped though that perception
may be, we have to face the fact that this will
overshadow the actual merits of our case. After
all, when the MPAA started this whole thing,
they chose us as the people they wanted to sue
even though there were hundreds of others they
could have gone after. Their reasoning was that
as hackers, we would be summarily dismissed in
the courts. Unfortunately, that proved to be true.
But they most certainly didn't count on the mas-
sive rallying of support that came our way. It
took courage and it took intelligence for individ-
uals to stand up against what they knew was
wrong. And now, unlike in 2000, the DMCA is
being challenged on many fronts, not just ours.

So, while the stage may be shifting, the fight
will intensify and see many more participants.
We will not shy away from any of this nor lose
sight of the ultimate objective, which is to repeal
this horrible law once and for all and restore the
right of fair use and free speech to the public.

It just got a lot harder with all the domestic
spying, branding of hackers as terrorists, etc.
But intensified pressure often in turn makes a
battle all the more intense. While more seems to
be at stake than ever before, we've never felt so
far from defeat as we do now.