this is the constitution on DRM

Posted on June 24, 2004 by Lessig

So jump over here to Amazon.com where you can purchase an electronic version of the Constitution, fitted very nicely to a Microsoft Reader (not Mac compatible), and protected quite completely with DRM. The description says you’re not permitted to print it. The reader reviews report you’re permitted to print it twice a year. And don’t try to hack the code to print it more than twice — until Boucher’s H.R. 107 passes at least. (Though the ranking is higher than for my book. Maybe free fails after all?) (Thanks Paul!)

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21 Responses to this is the constitution on DRM

  1. Joseph Pietro Riolo says:
    June 24, 2004 at 2:56 pm

    There is no law against breaking DRM to copy the public
    domain work. However, if there are creative additions
    to the electronic version that rise to copyrightable
    level, the story is different.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  3. Boo_hiss says:
    June 24, 2004 at 4:10 pm

    Joseph is right. I find it astounding that for all his ranting about the DMCA Lessig either hasn’t read it or doesn’t understand it. Read the fist sentence of the act.

  4. nate says:
    June 24, 2004 at 5:59 pm

    > There is no law against breaking DRM to copy the public
    > domain work. However, if there are creative additions
    > to the electronic version that rise to copyrightable
    > level, the story is different.

    Joseph,

    Could you clarify this? I’m no expert on the DMCA, but your statement certainly runs counter to most of the coverage of the DMCA that I’ve seen. I’m presuming that your point is that the DMCA makes illegal only the breaking of DRM used to control access to copyrighted works, and hence one can legally break DRM used to control access to a work in the public domain.

    1) Is your caveat ever false? Wouldn’t simply presenting a public domain work in a proprietary format make it a copyrightable work?

    2) If the maker of the DRM uses the same technology for the public domain work (small sliver) as for the copyrighted work (vast majority), wouldn’t the creation of a technology to break the DRM on the public domain work be prohibited because it “has limited commercially significant purpose or use other than to circumvent”?

    (I haven’t actually read the act, only the summary: http://www.loc.gov/copyright/legislation/dmca.pdf)

  5. Joseph Pietro Riolo says:
    June 24, 2004 at 6:51 pm

    Responding to Nate’s comment:

    When you have time, spend few minutes reading Chapter 12 in
    the U.S. copyright law. Note the phrase “a work protected
    under this title” in Section 1201(a). Because the public
    domain works are not protected or no longer protected by
    the U.S. copyright law, DMCA therefore does not apply to
    them.

    Question #1:

    There is no proprietary format although the creators
    of formats will disagree with me. All formats are
    uncopyrightable as per Section 102(b) (“any idea,
    procedure, process, system, method of operation, concept,
    principle, or discovery”). No matter what format a
    a public domain work appears in, it is always public
    domain. There is nothing that can turn it into
    a copyrighted work except by law. There are some
    formats that may be patented but that is a separate
    topic.

    Suppose an artist add ornaments to each letter in the
    Constitution. He/she has copyright only in the ornaments
    but never in the letters in the Constitution. One can
    copy the letters but not the ornaments.

    Question #2:

    That is a very difficult question to answer because
    each technology can be used for both legal and illegal
    purposes. If a technology to break protection system
    can be shown to be used in the legal way, it should be
    okay. But, most of the technologies to break protection
    system are used for infringing activities.

    For additional insight from the U.S. Copyright Office,
    take a look at pages 99 to 102 in:

    http://www.copyright.gov/1201/docs/registers-recommendation.pdf

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  6. Seth Finkelstein says:
    June 24, 2004 at 8:58 pm

    Maybe “hack the code” meant 1201(b)(1)

    Circumvention of control that “protects a right” (rather than *access*) is OK.

    But to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that “protect a right” is a violation, 1201(b)(1)

  7. Some Guy says:
    June 24, 2004 at 10:46 pm

    Don’t sweat the rankings; those are ebook rankings only (and, ahem, it ain’t hard to shoot to the top, ebookwise)… like comparing your book sales to jewelry.

  8. Alex says:
    June 25, 2004 at 12:20 am

    Wow, what a Shock! Lessig has given us another startling revelation about how Microsoft and the U.S. Government are trying to rob us.

    Of course, you can also buy the following books, in print form from Amazon:

    The Constitution and the Declaration of Independence: $4.95
    http://www.amazon.com/exec/obidos/tg/detail/-/1882577981/qid=1088147612/sr=8-1/ref=pd_ka_1/103-0232153-8071043?v=glance&s=books&n=507846

    The Anti-Federalist Papers: $7.95
    http://www.amazon.com/exec/obidos/tg/detail/-/1882577981/qid=1088147612/sr=8-1/ref=pd_ka_1/103-0232153-8071043?v=glance&s=books&n=507846

    And one published by the U.S. Government also:
    2003 Guide to Federal Grants and Government Assistance to Small Business – Catalog of Federal Domestic Assistance, Loans, Grants, Surplus Equipment, SBA, GSA, SEC Information for Entrepreneurs, Startup Kit, Loan Programs, Financing, Law, Regulations, Reports, Workbooks – Applying for Federal Assistance (CD-ROM)

    http://www.amazon.com/exec/obidos/tg/detail/-/1592480691/qid=1088147871/sr=1-6/ref=sr_1_6/103-0232153-8071043?v=glance&s=books

    What’s his point?

  9. Joseph Pietro Riolo says:
    June 25, 2004 at 6:14 am

    Commenting on John Mark Ockerbloom’s comment:

    Your analogy of beach is not quite right. (Your
    analogy of beach would work with the concept of
    license – people can control access to and uses
    on the public domain works through license.) I
    would suggest gun as an analogy. Guns could be
    used in legal and illegal ways. The key in making
    and selling guns is to have a good documentation,
    control, and tracking system. We can apply the
    same idea to the technologies that are designed
    to break protection systems to copy the public
    domain works. The same idea is used in making
    and selling medicine.

    If a person desires to break DRM in order to copy
    a public domain work but does not now how to write
    code or make equipment, he can hire someone to
    write code or make equipment. Both he and the
    maker of technology should have all documentations
    to record their activities. That way, whenever
    they are sued, they can present the documentations
    to a court. Once the use is accomplished, lock
    up the technology for future uses or destroy it.
    Other way is to teach the person how to write code
    or make equipment.

    The abuse of technologies to break protection
    systems has greatly hurt the legitimate uses of
    the same technologies but that does not change
    the fact that there is nothing illegal in using
    technology to break DRM to copy public domain
    works.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  10. Alex says:
    June 25, 2004 at 9:49 am

    “Yes, it�s legal under the DMCA to break the DRM here so the
    work can be printed and viewed on other computers, since
    the underlying work is not copyrighted. But how would people do this in practice? Unless they have the talent and patience to write the DRM-breaking code themselves from scratch, which very few people do, they�d have to obtain the code from somewhere else, and since the same code that breaks the DRM on this document can also be used to break the DRM on copyrighted works, they collide with the �anti-trafficking� provision of the DMCA.

    At least that explanation and the expansion of it that Mr. Riolo provides makes sense and provides some food for thought. Thanks to you both.

  11. Brendon J. Wilson says:
    June 25, 2004 at 10:33 am

    There is, of course, a very simply way around this: create your own non-DRMed version!

  12. Tom says:
    June 25, 2004 at 10:45 am

    Joseph Pietro Riolo:

    (Your analogy of beach would work with the concept of license – people can control access to and uses on the public domain works through license.)

    On the contrary, the beach analogy presumes rightful ownership. If someone else owns the beach, windsurfing may not be an option.

    The key in making and selling guns is to have a good documentation, control, and tracking system. We can apply the same idea to the technologies that are designed to break protection systems to copy the public domain works. The same idea is used in making and selling medicine.

    Guns and medicines are so regulated because they can kill. Equating copyright infringement to homicide is quite a stretch.

    If a person desires to break DRM in order to copy a public domain work but does not now how to write code or make equipment, he can hire someone to write code or make equipment…. Once the use is accomplished, lock up the technology for future uses or destroy it.

    Nothing promotes the progress of science and useful arts quite like fees, locks, and destruction.

    Other way is to teach the person how to write code or make equipment.

    So long as one doesn’t teach by example, apparently.

    The abuse of technologies to break protection systems has greatly hurt the legitimate uses of the same technologies but that does not change the fact that there is nothing illegal in using technology to break DRM to copy public domain works.

    Never mind practicality; it works on paper.

  13. Paul Hartzog says:
    June 25, 2004 at 11:16 am

    First, you’ll notice that L posted this in Just Plain Silly so lighten up.

    Second, as Will Fuller (the person who pointed out the link to me before I passed it on to L) asked me yesterday:

    Why isn’t there some way to ‘copyright’ a document so that it stays firmly in the public domain and cannot under any circumstances be expropriated for private use/distribution (DRM, etc.)?

    Well, there is. Try Creative Commons licensing, or the GPL. Without protections our public domain will vanish as it is already doing. Just because you can DRM the constitution doesn’t mean you should.

  15. Joseph Pietro Riolo says:
    June 25, 2004 at 7:11 pm

    Responding to Tom’s comment:

    I don’t think that you got the beach analogy
    correctly. In the original analogy, beach is
    public property which means that there is no
    ownership in beach, just like the public domain.
    But, as the analogy continues, the access
    routes to the beach are privately owned. The
    only thing that is analogous to privately owned
    access routes is license that can specify how
    a person can access and use the public domain
    works. The U.S. copyright law does not grant
    any private ownership in the access to the
    public domain works. Only the contract law can
    do that and it is effective only between parties
    that agree to the terms and conditions.

    You have a point that I go too far in using gun
    and medicine as examples where documentation,
    control, and tracking system is used. These are
    not the only ones that I have in my mind. Other
    examples are student files that are kept in
    school, medical files in doctor’s office, financial
    records in bank, legal documents in lawyer’s
    office, and so on. All of them need a system
    where documentation can be kept, control against
    illegal uses is effective, and documents or things
    can be tracked.

    Don’t blame me for being too cautious for using
    technologies to break protection system to copy
    the public domain works. The infringers are
    largely responsible for casting bad light on the
    legitimate uses of technologies to break protection
    system.

    Responding to Paul Hartzog’s comment:

    If you look at different blog items in the category
    under “Just Plain Silly”, some are quite serious.

    Will Fuller who asked you the question apparently
    does not understand the meaning of the public domain.
    Any work that is in the public domain remains in
    that status forever unless changed by law. If he
    means that he wants the public domain to be totally
    free of constraints, he needs to attack the
    contract law that includes license.

    Also, you do not apparently understand the meaning
    of the public domain. Without protections, the
    public domain truly flourish, like the ancient
    times where there is no intellectual property rights.
    With protections, the public domain stops growing
    – it never vanish as you stated. That is why GPL
    and some Creative Commons licenses are never
    considered as pro-public domain. They are always
    pro-copyright because they rely on protections as
    provided by copyright and contract law to protect
    the exclusive rights in copyrighted works and the
    terms and conditions in license or contract.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  16. Jimby says:
    July 1, 2004 at 8:09 am

    Thanks to this blog entry, many of my European friends now believe that printing a private copy of the U.S. constitution is illegal.

    Just in case any reasonable person had doubts, printing the U.S. constitution is *not* illegal. The text of the constitution can be found on the internet and in almost any encyclopedia, American history textbook, or standard book on American government.

    No one “owns” the constitution. The document was written many years before standard copyright law existed.

    The reason why it sometimes costs money to obtain a copy is that someone went to the trouble of typing it up and printing it (or placing it on line). Unless one is a volunteer, labor is not free, and neither is paper. The costs involved are compensation for the labor and materials involved, not compensation for access to the intellectual property. Even when the U.S. Government Printing Office prints something, it costs something. Paper and labor are free for Uncle Sam.

  17. Justin says:
    July 1, 2004 at 9:46 am

    A few people have pointed out that it’s legal to break the encryption that protects a work in the public domain. This assumes, however, that that particular method only protects work in the public domain.

    • Work A is in the public domain.
    • Work A is protected by encryption method X.
    • Therefore it should be legal to break X. But …
    • Work B is not in the public domain.
    • Work B is protected by encryption method X.
    • Therefore it is not legal to break X, or do any of the things the DMCA forbids, since if you broke X, you’d be able to get at B.

    I see the DMCA as the digital equivalent of demanding that car manuafacturers will be liable for the accidents their customers cause, unless the car manufacturer put a speed governor in each car. It’s also illegal to tamper with the speed governor, but you are allowed to tamper with the governor for vintage cars not capable of going above the set speed. The problem is if the same governor is used in modern cars, it’ll still illegal.

    And, showing their true colors, the Second Circuit Court of Appeals has ruled that the speed governor thing is fine, since you are still capable of getting your car above the governed speed; for example, you can drop it out of a C130 transport plane from 20,000 ft. Just because the law says you can get up to speed, you don’t have a right to obtain that speed in the desired direction.

  18. Joseph Pietro Riolo says:
    July 1, 2004 at 4:03 pm

    Responding to Justin’s comment:

    As I explained before, each technology can be used in
    legal and illegal ways. Just because a technology
    can be used in illegal ways to infringe someone’s
    copyright does not mean that it is outlawed for every
    use.

    I don’t think that you interpret the DCMA correctly.
    It only has effect on the works that still have
    copyright. DCMA is totally nothing when it comes
    to the public domain works. If I write a program
    that breaks the encryption method X in your example,
    I must take some additional steps to ensure that
    the program will not be used primarily to infringe
    copyrights. One way to do this is not to release
    the code to the wide public in the same way as
    the locksmith does not make his tools available to
    all people.

    I don’t know which ruling you are talking about from
    the Second Circuit Court of Appeals. I assume that
    you are talking about the ruling against 2600. If so,
    everyone knows that the purpose of the program as
    provided by 2600 is to infringe copyrights.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  19. William Wilson says:
    July 5, 2004 at 7:35 am

    Seems to me the proper thing to do would be to spend a little time, create a PDF file of the Constitution, Declaration of Independence, etc. and make it available everywhere–email it to friends, colleagues, Amazon.com employees, et al.

    Plus, the PDF file would be Mac OS compatible!

  20. dolan says:
    July 7, 2004 at 1:14 pm

    I know of a technology that can be used to circumvent… a keyboard. I’m fairly certain that it’s sole purpose was to circumvent the DMCA, and it should be outlawed immediately.

  21. Abiyeler says:
    August 12, 2008 at 9:24 am

    I don’t know which ruling you are talking about from
    the Second Circuit Court of Appeals. I assume that
    you are talking about the ruling against 2600. If so,
    everyone knows that the purpose of the program as
    provided by 2600 is to infringe copyrights.

    Good

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