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Our collegues at the EFF
have produced this paper on five years under the DMCA. It is a must read!
Unintended Consequences:
Five Years under the DMCA
1. Executive Summary
Since they were enacted in 1998, the anti-circumvention provisions of
the Digital Millennium Copyright Act (DMCA), codified in section 1201
of the Copyright Act, have not been used as Congress envisioned.
Congress meant to stop copyright pirates from defeating anti-piracy
protections added to copyrighted works, and to ban black box devices
intended for that purpose.[37][1]
In practice, the anti-circumvention provisions have been used to
stifle a wide array of legitimate activities, rather than to stop
copyright piracy. As a result, the DMCA has developed into a serious
threat to several important public policy priorities:
Section 1201 Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to
stifle free speech and scientific research. The lawsuit against 2600
magazine, threats against Princeton Professor Edward Feltens team of
researchers, and prosecution of Russian programmer Dmitry Sklyarov
have chilled the legitimate activities of journalists, publishers,
scientists, students, programmers, and members of the public.
Section 1201 Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools
that can be used for circumvention, section 1201 grants to copyright
owners the power to unilaterally eliminate the publics fair use
rights. Already, the music industry has begun deploying copy-protected
CDs that promise to curtail consumers ability to make legitimate,
personal copies of music they have purchased.
Section 1201 Impedes Competition and Innovation.
Rather than focusing on pirates, many copyright owners have wielded
the DMCA to hinder their legitimate competitors. For example, Sony has
invoked section 1201 to protect its monopoly on Playstation video game
consoles, as well as their regionalization system limiting users in
one country from playing games legitimately purchased in another.
Section 1201 Becomes All-Purpose Ban on Access To Computer Networks
Further, section 1201 has been misused as a new general-purpose
prohibition on computer network access which, unlike the several
federal anti-hacking statutes that already protect computer network
owners from unauthorized intrusions, lacks any financial harm
threshold. Disgruntled ex-employer Pearl Investments use of the DMCA
against a contract programmer who connected to the companys computer
system through a password-protected Virtual Private Network
illustrates the potential for unscrupulous persons to misuse the DMCA
to achieve what would not be possible under existing computer access
regulation regimes.
This document collects a number of reported cases where the
anti-circumvention provisions of the DMCA have been invoked not
against pirates, but against consumers, scientists, and legitimate
competitors. It will be updated from time to time as additional cases
come to light. The latest version can always be obtained at
www.eff.org.
2. DMCA Legislative Background
Congress enacted section 1201 in response to two pressures. Congress
was responding to the perceived need to implement obligations imposed
on the U.S. by the 1996 World Intellectual Property Organization
(WIPO) Copyright Treaty. Section 1201, however, went further than the
WIPO treaty required.[38][2] The details of section 1201, then, were a
response not just to U.S. treaty obligations, but also to the concerns
of copyright owners that their works would be widely pirated in the
networked digital world.[39][3]
Section 1201 contains two distinct prohibitions: a ban on acts of
circumvention, and a ban on the distribution of tools and technologies
used for circumvention.
The first prohibition, set out in section 1201(a)(1), prohibits the
act of circumventing a technological measure used by copyright owners
to control access to their works (access controls). So, for example,
this provision makes it unlawful to defeat the encryption system used
on DVD movies. This ban on acts of circumvention applies even where
the purpose for decrypting the movie would otherwise be legitimate. As
a result, when Disneys Tarzan DVD prevents you from fast-forwarding
through the commercials that preface the feature presentation, efforts
to circumvent this restriction would be unlawful.
Second, sections 1201(a)(2) and 1201(b) outlaw the manufacture, sale,
distribution or trafficking of tools and technologies that make
circumvention possible. These provisions ban both technologies that
defeat access controls, and also technologies that defeat use
restrictions imposed by copyright owners, such as copy controls. These
provisions prevent technology vendors from taking steps to defeat the
copy-protection now appearing on many music CDs, for example.
Section 1201 also includes a number of exceptions for certain limited
classes of activities, including security testing, reverse engineering
of software, encryption research, and law enforcement. These
exceptions have been extensively criticized as being too narrow to be
of real use to the constituencies who they were intended to
assist.[40][4]
A violation of any of the act or tools prohibitions is subject to
significant civil and, in some circumstances, criminal penalties.
3. Free Expression and Scientific Research
Section 1201 is being used by a number of copyright owners to stifle
free speech and legitimate scientific research. The lawsuit against
2600 magazine, threats against Princeton Professor Edward Feltens team
of researchers, and prosecution of the Russian programmer Dmitry
Sklyarov have chilled a variety of legitimate activities.
Bowing to DMCA liability fears, online service providers and bulletin
board operators have begun to censor discussions of copy-protection
systems, programmers have removed computer security programs from
their websites, and students, scientists and security experts have
stopped publishing details of their research on existing security
protocols. Foreign scientists are increasingly uneasy about traveling
to the United States out of fear of possible DMCA liability, and
certain technical conferences have begun to relocate overseas.
These developments will ultimately result in weakened security for all
computer users (including, ironically, for copyright owners counting
on technical measures to protect their works), as security researchers
shy away from research that might run afoul of section 1201.[41][5]
Cyber-Security Czar Notes Chill on Research
Speaking at MIT in October 2002, White House Cyber Security Chief
Richard Clarke called for DMCA reform, noting his concern that the
DMCA had been used to chill legitimate computer security research. The
Boston Globe quoted Clarke as saying, I think a lot of people didn't
realize that it would have this potential chilling effect on
vulnerability research.
Jonathan Band, Congress Unknowingly Undermines Cyber-Security, S.J.
Mercury News, Dec. 16, 2002.
[42]http://www.siliconvalley.com/mld/siliconvalley/4750224.htm
Hiawatha Bray, Cyber Chief Speaks on Data Network Security, The Boston
Globe, October 17, 2002.
[43]http://www.boston.com/globe/search/
Professor Feltens Research Team Threatened
In September 2000, a multi-industry group known as the Secure Digital
Music Initiative (SDMI) issued a public challenge encouraging skilled
technologists to try to defeat certain watermarking technologies
intended to protect digital music. Princeton Professor Edward Felten
and a team of researchers at Princeton, Rice, and Xerox took up the
challenge and succeeded in removing the watermarks.
When the team tried to present their results at an academic
conference, however, SDMI representatives threatened the researchers
with liability under the DMCA. The threat letter was also delivered to
the researchers employers and the conference organizers. After
extensive discussions with counsel, the researchers grudgingly
withdrew their paper from the conference. The threat was ultimately
withdrawn and a portion of the research was published at a subsequent
conference, but only after the researchers filed a lawsuit.ß
After enduring this experience, at least one of the researchers
involved has decided to forgo further research efforts in this field.
Pamela Samuelson, Anticircumvention Rules: Threat to Science, 293
Science 2028, Sept. 14, 2001.
[44]http://www.sciencemag.org/cgi/reprint/293/5537/2028
Letter from Matthew Oppenheim, SDMI General Counsel, to Prof. Edward
Felten, April 9, 2001.
[45]http://cryptome.org/sdmi-attack.htm
Hewlett Packard Threatens SNOsoft
Hewlett-Packard resorted to Section 1201 threats when researchers
published their discovery of a security flaw in HPs Tru64 UNIX
operating system. The researchers, a loosely-organized collective
known as Secure Network Operations (SNOsoft), received the DMCA threat
after releasing software in July 2002 that demonstrated
vulnerabilities that HP had been aware of for some time, but had not
bothered to fix.
After the DMCA threat received widespread press attention, HP
ultimately withdrew the threat. Security researchers received the
message, howeverpublish vulnerability research at your own risk.
Declan McCullagh, Security Warning Draws DMCA Threat, CNET News, July
30, 2002.
[46]http://news.com.com/2100-1023-947325.html
Blackboard Threatens Security Researchers
In April 2003, educational software company Blackboard Inc. used a
DMCA threat to stop the presentation of research on security
vulnerabilities in its products at the InterzOne II conference in
Atlanta. Students Billy Hoffman and Virgil Griffith were scheduled to
present their research on security flaws in the Blackboard ID card
system used by university campus security systems but were blocked
shortly before the talk by a cease-and-desist letter invoking the
DMCA. Blackboard obtained a temporary restraining order against the
students and the conference organizers at a secret ex parte hearing
the day before the conference began, giving the students and
conference organizer no opportunity to appear in court or challenge
the order before the scheduled presentation. Although the lawsuit
complaint Blackboard subsequently filed did not mention the DMCA, its
invocation in the original cease-and-desist letter preceding the
complaint contributed to the chill the students and conference
organizers felt in challenging the complaint and proceeding with the
scheduled presentation.
John Borland, Court Blocks Security Conference Talk, CNET News, April
14, 2003.
[47]http://news.com.com/2100-1028-996836.html
Xbox Hack Book Dropped by Publisher
In 2003, U.S. publisher John Wiley & Sons dropped plans to publish a
book by security researcher Andrew Bunnie Huang, citing DMCA liability
concerns. Wiley commissioned Huang to write the book which analyzes
security flaws Huang discovered in the process of reverse-engineering
the Microsoft X-Box game console, after Huang published his research
as part of his doctoral work at M.I.T. Huang did not distribute the
Xbox public security keys which he had isolated through reverse
engineering and did not copy any Xbox code. Although the DMCA includes
exceptions for circumvention for computer security testing and reverse
engineering, they were too narrow to be of use to Huang or his
publisher.
Following Microsofts legal action against the website vendor of an
Xbox mod chip in early 2003, and the music industrys 2001 DMCA threats
against Professor Feltens research team, Wiley dropped the book
fearing that the publisher might be liable for making available a
circumvention device. Huangs initial attempt to self-publish was
thwarted after his online shopping cart provider also withdrew, citing
DMCA concerns. After several months of negotiations, Huang eventually
self-published the book in mid 2003. The book is now being published
by No Starch Press.
David Becker, Testing Microsoft and the DMCA, CNET News, April 15,
2003.
[48]http://news.com.com/2008-1082-996787.html
Clive Akass, Huang Jury on Xbox Cracker, TechNewsWorld, August 2003
[49]http://www.technewsworld.com/perl/story/31406.html
Seth Schiesel, Behind a Hackers Book, a Primer on Copyright Law, New
York Times, Circuits, July 10, 2003.
[50]http://www.nytimes.com/2003/07/10/technology/circuits/10xbox.html
Censorware Research Obstructed
Seth Finkelstein conducts research on censorware software (i.e.,
programs that block websites that contain objectionable material),
working to document flaws in such software, including the products of
N2H2, a leading censorware company. Finkelsteins research documenting
websites inappropriately blocked by N2H2s software assisted the ACLUs
successful First Amendment challenge to the use of mandatory web
filtering software by federally-funded public libraries.[51][6]
N2H2 claims that its encrypted list of blocked websites is legally
protected by the DMCA against attempts to read and analyze it.
Utilizing a limited three year exemption granted by the Librarian of
Congress and Copyright Register in 2000, Finkelstein circumvented the
encryption on the list of sites blocked by BESS in order to analyze
flaws in that list.
However, Finkelsteins research work has been severely limited by the
fact that the three year exemption is limited to the act of
circumvention, and does not permit him to create or distribute tools
that would facilitate his research. In addition, the existing
exemption is due to expire in October 2003, and as Finkelstein
testified before the Copyright Office in its 2003 rule-making hearing,
unless the exemption is re-granted, Finkelstein will be unable to
continue his research because he fears that censorware companies may
bring a DMCA lawsuit against him to terminate his research. Even if he
were later found not to have violated section 1201, the potential for
a DMCA lawsuit would preclude him from undertaking further research.
Jennifer 8 Lee, Cracking the Code of Online Censorship, New York
Times, July 19, 2001.
[52]http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html
Transcript of Hearing in Copyright Office Rulemaking Proceeding RM
2002-04, tri-ennial anti-circumvention exemption hearing, April 11,
2003, at pages 11, 31 available at:
[53]http://www.copyright.gov/1201/2003/hearings/schedule.html
Benjamin Edelman has also conducted extensive research into flaws in
various censorware products. Edelmans research led to his providing
expert testimony for the ACLU in a recent federal court case
challenging the constitutionality of the Children's Internet
Protection Act (CIPA), which mandates that public libraries use
censorware products like those sold by N2H2.
In the course of his work for the ACLU, Edelman discovered that the
DMCA might interfere with his efforts to learn what websites are
blocked by N2H2 products. Because he sought to create and distribute
software tools to enable others to analyze the list if it changed,
Edelman could not rely on the limited 3 year exception. As he was not
willing to risk civil and criminal penalties under Section 1201,
Edelman was forced to go to federal court to seek clarification of his
legal rights before he could undertake his legitimate research.
However, underscoring the chilling effect of the DMCA on such
research, the Court dismissed Edelmans case for lack of standing.
ACLU, In Legal First, ACLU Sues Over New Copyright Law (case archive).
[54]http://archive.aclu.org/issues/cyber/Edelman_N2H2_feature.html
Dmitry Sklyarov Arrested
In July 2001, Russian programmer Dmitry Sklyarov was jailed for
several weeks and detained for five months in the United States after
speaking at the DEFCON conference in Las Vegas.
Prosecutors, prompted by software goliath Adobe Systems Inc., alleged
that Sklyarov had worked on a software program known as the Advanced
e-Book Processor, which was distributed over the Internet by his
Russian employer, ElcomSoft Co. Ltd. The software allowed owners of
Adobe electronic books (e-books) to convert them from Adobes e-Book
format into Adobe Portable Document Format (pdf) files, thereby
removing restrictions embedded into the files by e-Book publishers.
Sklyarov was never accused of infringing any copyrighted e-Book, nor
of assisting anyone else to infringe copyrights. His alleged crime was
working on a software tool with many legitimate uses, simply because
third parties he has never met might use the tool to copy an e-Book
without the publishers permission.
The Department of Justice ultimately permitted Sklyarov to return
home, but elected to proceed against his employer, ElcomSoft, under
the criminal provisions of the DMCA. In December 2002, a jury
acquitted Elcomsoft of all charges, completing an 18-month ordeal for
the wrongly-accused Russian software company.
Lawrence Lessig, Jail Time in the Digital Age, N.Y. Times at A7, July
30, 2001.
[55]http://www.nytimes.com/2001/07/30/opinion/30LESS.html
Lisa Bowman, Elcomsoft Verdict: Not Guilty, CNET News, Dec. 17, 2002.
[56]http://news.com.com/2100-1023-978176.html
Scientists and Programmers Withhold Research
Following the legal threat against Professor Feltens research team and
the arrest of Dmitry Sklyarov, a number of prominent computer security
experts have curtailed their legitimate research activities out of
fear of potential DMCA liability.
For example, prominent Dutch cryptographer and security systems
analyst Niels Ferguson discovered a major security flaw in an Intel
video encryption system known as High Bandwidth Digital Content
Protection (HDCP). He declined to publish his results on his website
relating to flaws in HDCP, on the grounds that he travels frequently
to the U.S. and is fearful of prosecution and/or liability under the
U.S. DMCA law.
Niels Ferguson, Censorship in Action: Why I Dont Publish My HDCP
Results, Aug. 15, 2001.
[57]http://www.macfergus.com/niels/dmca/cia.html
Niels Ferguson, Declaration in Felten & Ors v R.I.A.A. case, Aug. 13,
2001.
[58]http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_ferguson_decl.ht
ml
Lisa M. Bowman, Researchers Weigh Publication, Prosecution, CNET News,
Aug. 15, 2001.
[59]http://news.cnet.com/news/0-1005-200-6886574.html
Following the arrest of Dmitry Sklyarov, Fred Cohen, a professor of
digital forensics and respected security consultant, removed his
Forensix evidence-gathering software from his website, citing fear of
potential DMCA liability.
Another respected network security protection expert, Dug Song, also
removed content from his website for the same reason. Mr. Song is the
author of several security papers, including a paper describing a
common vulnerability in many firewalls.
Robert Lemos, Security Workers: Copyright Law Stifles, CNET News,
Sept. 6, 2001.
[60]http://news.com.com/2100-1001-272716.html
In mid-2001 an anonymous programmer discovered a vulnerability in
Microsofts proprietary e-Book digital rights management code, but
refused to publish the results, citing DMCA liability concerns.
Wade Roush, Breaking Microsoft's e-Book Code, Technology Review at 24,
November 2001.
[61]http://www.technologyreview.com/articles/innovation11101.asp
Foreign Scientists Avoid U.S.
Foreign scientists have expressed concerns about traveling to the U.S.
following the arrest of Russian programmer Dmitry Sklyarov. Some
foreign scientists have advocated boycotting conferences held in the
U.S. and a number of conference bodies have decided to move their
conferences to non-U.S. locations. Russia has issued a travel warning
to Russian programmers traveling to the U.S.
Highly respected British Linux programmer Alan Cox resigned from the
USENIX committee of the Advanced Computing Systems Association, the
committee that organizes many of the U.S. computing conferences,
because of his concerns about traveling to the U.S. Cox has urged
USENIX to hold its annual conference offshore. The International
Information Hiding Workshop Conference, the conference at which
Professor Feltens team intended to present its original paper, chose
to break with tradition and held its next conference outside of the
U.S. following the SDMI threat to Professor Felten and his team.
Will Knight, Computer Scientists boycott US over digital copyright
law, New Scientist, July 23, 2001.
[62]http://www.newscientist.com/news/news.jsp?id=ns00001063
Alan Cox of Red Hat UK Ltd, declaration in Felten v. RIAA, Aug. 13,
2001.
[63]http://www.eff.org/IP/DMCA/Felten_v_RIAA/20010813_cox_decl.html
Jennifer 8 Lee, Travel Advisory for Russian Programmers, N.Y. Times at
C4, Sept.10, 2001.
[64]http://www.nytimes.com/2001/09/10/technology/10WARN.html
IEEE Wrestles with DMCA
The Institute of Electrical and Electronics Engineers (IEEE), which
publishes 30 per cent of all computer science journals worldwide,
recently was drawn into the controversy surrounding science and the
DMCA. Apparently concerned about possible liability under Section
1201, the IEEE in November 2001 instituted a policy requiring all
authors to indemnify IEEE for any liabilities incurred should a
submission result in legal action under the DCMA.
After an outcry from IEEE members, the organization ultimately revised
its submission policies, removing mention of the DMCA. According to
Bill Hagen, manager of IEEE Intellectual Property Rights, The Digital
Millennium Copyright Act has become a very sensitive subject among our
authors. Its intended to protect digital content, but its application
in some specific cases appears to have alienated large segments of the
research community.
IEEE press release, IEEE to Revise New Copyright Form to Address
Author Concerns, April 22, 2002.
[65]http://www.ieee.org/newsinfo/dmca.html
Will Knight, Controversial Copyright Clause Abandoned, New Scientist,
April 15, 2002.
[66]http://www.newscientist.com/news/news.jsp?id=ns99992169
2600 Magazine Censored
The Universal City Studios v. Reimerdes case[67][7] illustrates the
chilling effect that section 1201 has had on the freedom of the press.
In that case, eight major motion picture companies brought a DMCA suit
against 2600 Magazine seeking to block it from publishing the DeCSS
software program, which defeats the encryption used on DVD movies.
2600 had made the program available on its web site in the course of
ongoing coverage of the controversy surrounding the DMCA. The magazine
was not involved in the development of software, nor was it accused of
having used the software for any copyright infringement.
Notwithstanding the First Amendments guarantee of a free press, the
district court permanently barred 2600 from publishing, or even
linking to, the DeCSS software code. In November 2001, the Second
Circuit Court of Appeals upheld the lower court decision.
In essence, the movie studios effectively obtained a stop the presses
order banning the publication of truthful information by a news
publication concerning a matter of public concernan unprecedented
curtailment of well-established First Amendment principles.
Carl S. Kaplan, Questioning Continues in Copyright Suit, N.Y. Times,
May 4, 2001.
[68]http://www.nytimes.com/2001/05/04/technology/04CYBERLAW.html
Simson Garfinkel, The Net Effect: The DVD Rebellion,Technology Review
at 25, July/Aug. 2001.
[69]http://www.technologyreview.com/articles/garfinkel0701.asp
Xenia P. Kobylarz, DVD Case ClashFree Speech Advocates Say Copyright
Owners Want to Lock Up Ideas; Encryption Code is Key, S.F. Daily
Journal, May 1, 2001.
CNET Reporter Feels Chill
Prominent CNET News reporter Declan McCullagh recently found four
publicly-available documents on the Transportation Security
Administration (TSA) website. The website announced that the documents
contained information about airport security procedures, the
relationship between federal and local police, and a liability
information sheet. A note on the site stated that this information is
restricted to airport management and local law enforcement. No
password was necessary to download the documents, but they were
distributed in encrypted form and a password was required to open and
read them.
McCullagh obtained the passwords from an anonymous source, but fear of
DMCA liability stopped him from reading the documentsusing a password
without authorization could violate Section 1201. This is particularly
ironic, as any foreign journalist beyond the reach of the DMCA would
be free to use the password.
Journalists traditionally haven't worried about copyright law all that
much, said McCullagh, But nowadays intellectual property rights have
gone too far, and arguably interfere with the newsgathering process.
Declan McCullagh, Will This Land Me in Jail?, CNET News, Dec. 23,
2002.
[70]http://news.com.com/2010-1028-978636.html
Microsoft Threatens Slashdot
In spring 2000, Microsoft invoked the DMCA against the Internet
publication forum Slashdot, demanding that forum moderators delete
materials relating to Microsofts proprietary implementation of an open
security standard known as Kerberos.
In the Slashdot forum, several individuals alleged that Microsoft had
changed the open, non-proprietary Kerberos specification in order to
prevent non-Microsoft servers from interacting with Windows 2000. Many
speculated that this move was intended to force users to purchase
Microsoft server software. Although Microsoft responded to this
criticism by publishing its Kerberos specification, it conditioned
access to the specification on agreement to a click-wrap license
agreement that expressly forbade disclosure of the specification
without Microsofts prior consent.
Slashdot posters responded by republishing the Microsoft
specification. Microsoft then invoked the DMCA, demanding that
Slashdot remove the republished specifications.
In the words of Georgetown law professor Julie Cohen, If Microsoft's
interpretation of the DMCA's ban on circumvention technologies is
right, then it doesn't seem to matter much whether posting
unauthorized copies of the Microsoft Kerberos specification would be a
fair use. A publisher can prohibit fair-use commentary simply by
implementing access and disclosure restrictions that bind the entire
public. Anyone who discloses the information, or even tells others how
to get it, is a felon.
Julie Cohen, Call it the Digital Millennium Censorship Act Unfair Use,
The New Republic, May 23, 2000.
[71]http://www.thenewrepublic.com/cyberspace/cohen052300.html
AVSforum.com Censors TiVo Discussion
The specter of DMCA litigation has chilled speech on smaller web
bulletin boards as well. In June 2001, for example, the administrator
of AVSforum.com, a popular forum where TiVo digital video recorder
owners discuss TiVo features, censored all discussion about a software
program that allegedly permitted TiVo users to move video from their
TiVos to their personal computers. In the words of the forum
administrator, My fear with this is more or less I have no clue what
is a protected system on the TiVo box under copyright (or
what-have-you) and what is not. Thus my fear for the site.
Lisa M. Bowman, TiVo Forum Hushes Hacking Discussion, CNET News, June
11, 2001.
[72]http://news.cnet.com/news/0-1005-200-6249739.html
Mac Forum Censors iTunes Store Discussion
Macintosh enthusiast website Macosxhints censored publication of
information about methods for evading the copy protection on songs
purchased from the Apple iTunes Music Store in May 2003, citing DMCA
liability concerns. Songs purchased from the Apple iTunes Music Store
are downloaded in Apples proprietary AAC file format, wrapped in
digital copy protection. This prevents purchasers from playing the
songs on non-iPod portable MP3 players or from transferring songs to
non Mac OS computers for personal, non-commercial use, even if that
would be considered fair use under copyright law. As the webmaster for
the site noted, even though information on bypassing the copy
protection was readily available on the Internet at the time,
republishing user hints on work-arounds risked attracting a DMCA
lawsuit and harsh penalties.
[73]http://www.macosxhints.com/article.php?story=20030507104823670#com
ments
4. Fair Use Under Siege
Fair use is a crucial element in American copyright lawthe principle
that the public is entitled, without having to ask permission, to use
copyrighted works in transformative ways or other ways that do not
unduly interfere with the copyright owners market for a work. Fair
uses include personal, noncommercial uses, such as using a VCR to
record a television program for later viewing. Fair use also includes
activities undertaken for purposes such as criticism, comment, news
reporting, teaching, scholarship or research.
While stopping copyright infringement is an important policy
objective, Section 1201 throws out the baby of fair use with the
bathwater of digital piracy. By employing technical protection
measures to control access to and use of copyrighted works, and using
section 1201 litigation against anyone who tampers with those
measures, copyright owners can unilaterally eliminate fair use,
re-writing the copyright bargain developed by Congress and the courts
over more than a century.
Copy-protected CDs
The introduction of copy-protected CDs into the marketplace
illustrates the collision between fair use and the DMCA. Record labels
are aggressively incorporating copy-protection on new music releases.
Over 10 million copy-protected discs are already in circulation,
according to Midbar Technology Ltd, (now Macrovision), one vendor of
copy-protection technology. Sony claims that it has released over 11
million copy-protected discs worldwide. Executives from major record
labels EMI and BMG have both stated that a significant proportion of
all CDs released in the U.S. will be copy-protected by the end of
2003.
Whatever the impact that these copy protection technologies may have
on online infringement, they are certain to interfere with the fair
use expectations of consumers. For example, copy-protected discs will
disappoint the hundreds of thousands of consumers who have purchased
MP3 players, despite the fact that making an MP3 copy of a CD for
personal use is a fair use. Making mix CDs or copies of CDs for the
office or car are other examples of fair uses that are potentially
impaired by copy-protection technologies.
Companies that distribute tools to repair these dysfunctional CDs,
restoring to consumers their fair use privileges, run the risk of
lawsuits under section 1201s ban on circumvention tools and
technologies.
Rep. Rick Boucher, Time to Rewrite the DMCA, CNET News, Jan. 29, 2002.
[74]http://news.com.com/2010-1078-825335.html
Dan Gillmor, Entertainment Industry's Copyright Fight Puts Consumers
in Cross Hairs, San Jose Mercury News, Feb. 12, 2002.
[75]http://www.siliconvalley.com/mld/siliconvalley/2658555.htm
Gwendolyn Mariano, Copy-Protected CDs Slide Into Stores, CNET News,
Feb. 12, 2002.
[76]http://news.com.com/2100-1023-835841.html
Jon Healey and Jeff Leeds, Record Labels Grapple with CD Protection,
Los Angeles Times, November 29, 2002, C.1. (subscription required for
full article)
[77]http://www.latimes.com/business/la-fi-secure29nov29.story
Fair Use Tools Banned
We are entering an era where books, music and movies will increasingly
be copy-protected and otherwise restricted by technological means.
Whether scholars, researchers, commentators and the public will
continue to be able to make legitimate fair uses of these works will
depend upon the availability of tools to bypass these digital locks.
The DMCAs anti-circumvention provisions, however, prohibit the
creation or distribution of these tools, even if they are crucial to
fair use. So, as copyright owners use technology to press into the
21st century, the public will see more and more fair uses whittled
away by digital locks allegedly intended to prevent piracy. Perhaps
more importantly, no future fair uses will be developedafter all,
before the VCR, who could have imagined that fair use time-shifting of
television would become common-place for the average consumer?
Copyright owners argue that these tools, in the hands of copyright
infringers, can result in Internet piracy. But the traditional answer
for piracy under copyright law has been to seek out and prosecute the
infringers, not to ban the tools that enable fair use. After all,
photocopiers, VCRs, and CD-R burners can also be misused, but no one
would suggest that the public give them up simply because they might
be used by others to break the law.
DeCSS, DVD Copy Plus and DVD CopyWare
Fair use tools have already been yanked off the market. In the
Universal v. Reimerdes case, discussed above, the court held that
Section 1201 bans DeCSS software. This software decrypts DVD movies,
making it possible to copy them to a PC. In another case, 321 Studios
LLC has filed a declaratory judgment action in San Francisco after
being threatened with DMCA liability by the MPAA for distributing DVD
Copy Plus, which enables DVD owners to make copies of DVD content. The
major motion picture studios have since counter-sued, alleging that
DVD copying tools violate the DMCA.
In a separate case, studios Paramount Pictures and Twentieth Century
Fox have used the DMCA to sue Tritton Technologies, the manufacturer
of DVD CopyWare, and three website distributors of other software that
consumers can use to make a copy of the DVDs they have purchased.
There are many legitimate reasons to copy DVDs. Once the video is on
the PC, for example, lots of fair uses become possiblefilm scholars
can digitally analyze the film, travelers can load the movie into
their laptops, and parents can fast-forward through the unskippable
commercials that preface certain films. Without the tools necessary to
copy DVDs, however, these fair uses become impossible.
Matthew Mirapaul, Theyll Always Have Paris (and the Web), N.Y. Times
at E2, March 16, 2002.
Lisa Bowman, Hollywood Targets DVD- Copying Upstart, CNET News, Dec.
20, 2002.
[78]http://news.com.com/2100-1023-978580.html
Paramount Pictures Corporation et al v. Tritton Technologies Inc. et
al, No. CV 03-7316 (S.D.N.Y. filed Sept.17, 2003).
Advanced e-Book Processor and e-Books
The future of fair use for books was at issue in the criminal
prosecution of Dmitry Sklyarov and ElcomSoft. As discussed above,
ElcomSoft produced and distributed a tool called the Advanced e-Book
Processor, which translates e-books from Adobes e-Book format to
Adobes Portable Document Format (PDF). This translation process
removes the various restrictions (against copying, printing,
text-to-speech processing, etc.) that publishers can impose on
e-Books. The program is designed to work only with e-Books that have
been lawfully purchased from sales outlets.
The Advanced e-Book Processor allowed those who have legitimately
purchased e-Books to make fair uses of their e-Books, which would
otherwise not be possible with the current Adobe e-Book format. For
instance, the program allows people to engage in the following
activities, all of which are fair uses:
· read it on a laptop or computer other than the one on which
the e-Book was first downloaded;
· continue to access a work in the future, if the particular
technological device for which the e-Book was purchased becomes
obsolete;
· print an e-Book on paper;
· read an e-Book on an alternative operating system such as
Linux (Adobe's format works only on Macs and Windows PCs);
· have a computer read an e-Book out loud using text-to-speech
software, which is particularly important for visually-impaired
individuals.
EFF, Frequently Asked Questions re U.S. v. Sklyarov.
[79]http://www.eff.org/IP/DMCA/US_v_Sklyarov/us_v_sklyarov_faq.html
Time-shifting and Streaming Media
As more consumers receive audio and video content from streaming
Internet media sources, they will demand tools to preserve their
settled fair use expectations, including the ability to time-shift
programming for later listening or viewing. As a result of the DMCA,
however, the digital equivalents of VCRs and cassette decks for
streaming media may never arrive.
Start-up software company Streambox developed exactly such a product,
known simply as the Streambox VCR, designed to time-shift streaming
media. When competitor RealNetworks discovered that Streambox had
developed a competing streaming media player, it invoked the DMCA and
obtained an injunction against the Streambox VCR product.
RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311 (W.D. Wash. Jan.
18, 2000).
The DMCA has also been invoked to threaten the developer of an open
source, noncommercial software application known as Streamripper that
records MP3 audio streams for later listening.
Cease and desist letter from Kenneth Plevan on behalf of Live365.com
to John Clegg, developer of Streamripper, April 26, 2001.
[80]http://streamripper.sourceforge.net/dc.php
embed and Fonts
In January 2002, typeface vendor Agfa Monotype Corporation threatened
a college student with DMCA liability for creating embed, a free, open
source, noncommercial software program designed to manipulate TrueType
fonts.
According to the student: I wrote embed in 1997, after discovering
that all of my fonts disallowed embedding in documents. Since my fonts
are free, this was sillybut I didn't want to take the time to change
the flag, and then reset all of the extended font properties with a
separate program. What a bore! Instead, I wrote this program to
convert all of my fonts at once. The program is very simple; it just
requires setting a few bits to zero. Indeed, I noticed that other
fonts that were licensed for unlimited distribution also disallowed
embedding. So, I put this program on the web in hopes that it would
help other font developers as well.
Agfa Monotype nevertheless threatened the student author with DMCA
liability for distributing the program. According to Agfa, the fact
that embed can be used to allow distribution of protected fonts makes
it contraband under Section 1201, notwithstanding the fact that the
tool has many legitimate uses in the hands of hobbyist font
developers.
Tom Murphy, embed: DMCA Threats.
[81]http://www.andrew.cmu.edu/~twm/embed/dmca.html
Cease and Desist letter sent by Agfa.
[82]http://www.chillingeffects.org/copyright/notice.cgi?NoticeID=264
5. A threat to innovation and competition
The DMCA is being used to hinder the efforts of legitimate competitors
to create interoperable products.
For example, Vivendi-Universal's Blizzard video game division invoked
the DMCA in an effort to intimidate the developers of a software
product derived from legitimate reverse engineering. Sony has used the
DMCA to threaten hobbyists who created competing software for Sonys
Aibo robot dog, as well as to sue makers of software that permits the
playing of Playstation games on PCs. In each of these cases, the DMCA
was used to deter a marketplace competitor, rather than to battle
piracy.
Lexmark Sues Over Toner Cartridges
Lexmark, the second-largest printer vendor in the U.S., has long tried
to eliminate aftermarket laser printer toner vendors that offer toner
cartridges to consumers at prices below Lexmarks. In January 2003,
Lexmark employed the DMCA as a new weapon in its arsenal. Lexmark
obtained a DMCA injunction banning printer microchip manufacturer
Static Control Components from selling chips it claimed were
technology which circumvented certain authentication routines between
Lexmark toner cartridges and printers.
Lexmark added these authentication routines explicitly to hinder
aftermarket toner vendors. Static Control reverse-engineered these
measures and sold Smartek chips that enabled aftermarket cartridges to
work in Lexmark printers. Lexmark used the DMCA to obtain an
injunction banning Static Control from selling its reverse-engineered
chips to cartridge remanufacturers.[83][8] Static Control has appealed
that decision and countered by filing an anti-trust lawsuit. Whatever
the merits of Lexmarks position, it is fair to say that eliminating
the laser printer toner aftermarket was not what Congress had in mind
when enacting the DMCA.
Declan McCullagh, Lexmark Invokes DMCA in Toner Suit, CNET News, Jan.
8, 2003.
[84]http://news.com.com/2100-1023-979791.html
Steve Seidenberg, Copyright Owners Sue Competitors, NATIONAL LAW
JOURNAL, Feb. 17, 2003.
[85]http://www.nlj.com/business/020303bizlede.shtml
Chamberlain Sues Universal Garage Door Opener Manufacturer
Garage door opener manufacturer Chamberlain Group invoked the DMCA
against competitor Skylink Technologies after several major U.S.
retailers dropped Chamberlains remote openers in favor of the less
expensive Skylink universal clickers.[86][9] Chamberlain claimed that
Skylinks interoperable clicker violates the DMCA by bypassing an
authentication regime between the Chamberlain remote opener and the
mounted garage door receiver unit.
Skylink reverse engineered the algorithm used by the garage door
receivers computer program. Skylinks transmitter sends three static
codes which trigger a resynchronization function and open the garage
door. Even though the Skylink clicker does not use the rolling code
sent by the Chamberlain transmitter, Chamberlain claims that it
bypasses its authentication routine to use the computer program that
controls the doors motor. On this view, a consumer who replaced his
lost or damaged Chamberlain clicker with one of Skylinks cheaper
universal clickers would not be allowed to access his own garage. The
same argument would apply equally to ban universal remote controls for
televisions.
Although Skylink defeated Chamberlain on a motion for summary
judgment, Chamberlain has sought to ban the import and sale of Skylink
clickers into the U.S. by filing a simultaneous lawsuit against
Skylink and the clickers Chinese manufacturer in the International
Trade Commission. Whatever the outcome of that suit, it is clear that
in enacting the DMCA, Congress did not intend to give copyright owners
the right to veto the creation of interoperable, non-copyrightable
goods and technologies.
Steve Seidenberg, Suits Test Limits of Digital Copyright Act, National
Law Journal, February 7, 2003:
[87]http://www.law.com/jsp/article.jsp?id=1044059435217
Katie Dean, Lexmark: New Fuel for DMCA Foes,Wired, March 6, 2003:
[88]http://www.wired.com/news/digiwood/0,1412,57907-2,00.html
Sony Sues Connectix and Bleem
Since the DMCAs enactment in 1998, Sony has used DMCA litigation to
pressure competitors who created software that would allow PC owners
to play games intended for the Sony Playstation video game console. In
1999, Sony sued Connectix Corporation, the manufacturer of the Virtual
Game Station, an emulator program which allowed Sony Playstation games
to be played on Apple Macintosh computers. Sony also sued Bleem, the
leading vendor of Playstation emulator software for Windows PCs.
In both cases, Sony claimed, then subsequently withdrew circumvention
violations against Sony competitors that had created their products by
engaging in legitimate reverse engineering, which has been recognized
as noninfringing fair use in a series of Ninth Circuit cases.
Connectix, in fact, ultimately won a Ninth Circuit ruling that its
reverse engineering was indeed fair use.[89][10] Both Connectix and
Bleem, however, were unable to bear the high costs of litigation
against Sony and ultimately were forced to pull their products off the
market. Whatever the merits of Sonys position may have been under
copyright, trademark, patent, or other legal theories, the competitive
efforts of Connectix and Bleem certainly were at a far remove from the
black box piracy devices that Congress meant to target with section
1201.
Pamela Samuelson, Intellectual Property and the Digital Economy: Why
the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley
Technology L.J. 519, 556 (1999) (discussing the Connectix case).
[90]http://www.sims.berkeley.edu/~pam/papers.html
Testimony of Jonathan Hangartner on behalf of Bleem, Library of
Congress, Hearing on DMCA, Stanford University, May 19, 2000, pp.
221-28.
[91]http://www.loc.gov/copyright/1201/hearings/1201-519.pdf
Sony Threatens Aibo Hobbyist
Sony has also invoked the DMCA against a hobbyist who developed custom
programs for Sonys Aibo robotic pet dog. The hobbyist cracked the
encryption surrounding the source code that manipulates the Aibo to
reverse engineer programs that allow owners to customize voice
recognition by their Aibos. The hobbyist revealed neither the
decrypted source code nor the code he used to defeat the encryption,
freely distributed his custom programs, and made no profit.
Nevertheless, Sony claimed that the act of circumventing the
encryption surrounding the source code violated the DMCA and demanded
that the hobbyist remove his programs from his website.
Responding to public outcry, Sony ultimately permitted the hobbyist to
repost some of his programs (on the understanding that Sony will have
the rights of commercial development in the programs). The incident,
however, illustrated Sonys willingness to invoke the DMCA in
situations with no relationship to piracy.
David Labrador, "Teaching Robot Dogs New Tricks,"Scientific American,
Feb. 12, 2002.
[92]http://www.sciam.com/explorations/2002/012102aibo/
Blizzard Sues bnetd.org
Section 1201 has been invoked in a federal lawsuit by
Vivendi-Universal's Blizzard Entertainment video game division against
a group of volunteer game enthusiasts who used reverse engineering to
create free and open source software to allow owners of Blizzard games
to play the games over the Internet. The software, a server called
"bnetd," provides an alternative to Blizzard's own Battle.net servers.
Both Battle.net servers and bnetd servers are available for free and
both allow owners of Blizzard games to play with each other across the
Internet. The group of volunteers decided to create bnetd to overcome
difficulties that they had experienced in attempting to use
Battle.net. The bnetd software is freely distributed, open source, and
non-commercial.
Blizzard filed suit in St. Louis to bar distribution of bnetd,
alleging that the software is a circumvention device that violates the
DMCA. According to Blizzard, the bnetd software has been used by some
to permit networked play of pirated Blizzard games. Whether or not
that is true, the developers are not using the software for that
purpose, nor was the software designed for that purpose. The software
has numerous legitimate uses for owners of Blizzard games. Whatever
else may be said about the bnetd software, it is plainly not a black
box piracy device. (EFF is representing the bnetd developers.)
Howard Wen, Battle.net Goes To War,Salon, April 18, 2002.[93]
http://archive.salon.com/tech/feature/2002/04/18/bnetd/
EFF case archive.
[94]http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/
Sony Attacks Playstation Mod Chips
Apart from using the DMCA against vendors of personal computer
emulators of Sonys Playstation, Sony has sued a number of
manufacturers of so-called mod chips for alleged circumvention under
the DMCA. In doing so, Sony has been able to enforce a system of
geographical regional restrictions that raises significant
anticompetitive issues.
So-called mod chips are after-market accessories that modify
Playstation consoles to permit games legitimately purchased in one
part of the world to be played on a games console from another
geographical region. Sony has sued mod chip manufacturers in the U.S.,
the U.K., and Australia. In the U.S., Sony sued Gamemasters, Inc.,
distributor of the Game Enhancer peripheral device, which allowed U.S.
Playstation users to play games purchased in Japan and other
countries. Although there was no infringement of Sonys copyright, the
court granted an injunction under the DMCAs anti-circumvention
provisions, effectively banning the use of a technology that would
permit users to use legitimately-purchased non-infringing games from
other regions.
Recognizing the anti-competitive potential of the region playback
control system, the Australian anti-trust authority, the Australian
Consumers and Competition Commission intervened in a case Sony
ultimately won against an Australian mod chip manufacturer under the
Australian equivalent of the DMCAs anti-circumvention provisions.
Sony has argued that mod chips can also be used to enable the use of
unauthorized copies of Playstation games. But most Playstation mod
chips are not black box devices suitable only for piracy. The
potential illegitimate uses must be weighed against legitimate uses,
such as defeating Sonys region coding system to play games purchased
in other countries.
Sony Playstation ruling sets far-reaching precedent,New Scientist,
Feb. 22, 2002
[95]http://www.newscientist.com/news/news.jsp?id=ns99991933
Sony Computer Entertainment America Inc. v. Gamemasters, 87 F.Supp.2d
976 (N.D. Cal. 1999).
David Becker, Sony Loses Australian Copyright Case, CNET News, July
26, 2002. [96]http://news.com.com/2100-1040-946640.html
Apple Harasses Inventive Retailer
When Other World Computing (OWC), a small retailer specializing in
Apple Macintosh computers, developed a software patch that allowed all
Mac owners to use Apples iDVD software, they thought they were doing
Apples fans a favor. For their trouble, they got a DMCA threat from
Apple.
Apples iDVD authoring software was designed to work on newer Macs that
shipped with internal DVD recorders manufactured by Apple. OWC
discovered that a minor software modification would allow iDVD to work
with external DVD recorders, giving owners of older Macs an upgrade
path. Apple claimed that this constituted a violation of the DMCA and
requested that OWC stop this practice immediately. OWC obliged.
Rather than prevent copyright infringement, the DMCA empowered Apple
to force consumers to buy new Mac computers instead of simply
upgrading their older machines with an external DVD recorder.
Declan McCullagh Apple: Burn DVDsand Well Burn You, CNET News, Aug.
28, 2002.
[97]http://news.com.com/2100-1023-955805.html
6. DMCA becomes general purpose ban on computer network access
In a different type of misuse, the DMCAs anti-circumvention provisions
have recently been utilized as a general-purpose prohibition on
computer network access. Several federal anti-hacking statutes already
protect computer network owners from unauthorized intrusions. These
include the Computer Fraud and Abuse Act, the Wiretap Act, and the
Electronic Communications Privacy Act. In addition, the common law
doctrine of trespass to chattels has also been widely used for this
purpose. However, unlike each of these regimes which seek to balance
important public policy goals by only outlawing behavior that meets
certain conditions and causes significant financial harm to computer
owners, the DMCA contains no financial damage threshold.
Given the very specific existing statutory regimes that regulate this
type of behavior, it is clear that Congress did not intend that the
DMCA would be used in this way to create a new and absolute
prohibition on accessing computer networks in the absence of any type
of copyrighted work.
Disgruntled Ex-employer Sues For Unauthorized Network Access
In April 2003, an automated stock trading company sued a former
contract programmer under the DMCA, claiming that his access to the
companys computer system over a password-protected Virtual Private
Network tunnel connection was an act of circumvention. Pearl
Investments had employed the programmer to create a software module
for its software system. In order to complete the work remotely, the
programmer connected a separate server to the companys server, to
which he connected from a VPN tunnel from his office. Although the
contractor created a very successful software module for the company,
the relationship turned frosty after the company ran into financial
difficulties and terminated the contractors contract.
The company sued the contractor when it discovered the contractors
server connected to the its system, claiming electronic trespass,
violation of the anti-hacker legislation, the Computer Fraud and Abuse
Act (CFAA) and violation of the DMCAs anti-circumvention provisions.
Pearl claimed that it had taken away the authorization it had
previously given to the contractor to access its system through the
password-protected VPN and that the VPN connection was therefore
unauthorized. The Court rejected the companys electronic trespass and
CFAA claims due to lack of evidence of any actual damage done. Even
though the second server was not being used by the programmer at the
time, and its hard drive had been accidentally wiped, the court agreed
with Pearl that the existence of the VPN was a prohibited
circumvention of a technological protection measure that controlled
access to a system which contained copyrighted software.
As the DMCA has no harm threshold, the anti-circumvention provisions
are open to misuse by unscrupulous companies who seek to avoid paying
former employees or contractors by revoking authority previously
granted and then alleging circumvention.
Pearl Investments LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326
(D.Me., April 23, 2003).
7. Conclusion
Five years of experience with the anti-circumvention provisions of the
DMCA demonstrate that the statute reaches too far, chilling a wide
variety of legitimate activities in ways Congress did not intend. As
an increasing number of copyright works are wrapped in technological
protection measures, it is likely that the DMCAs anti-circumvention
provisions will be applied in further unforeseen contexts, hindering
the legitimate activities of innovators, researchers, the press, and
the public at large.
EFF would like to thank the following individuals who have helped to
create and update this publication:
the Samuelson Law, Technology & Public Policy Clinic, Deirdre
Mulligan, Nicky Ozer, and Nicolai Nielsen.
_________________________________________________________________
[98][1] For examples of Congress stated purpose in enacting the DMCAs
anti-circumvention provisions, see 144 Cong. Rec. H7093, H7094-5 (Aug.
4, 1998); Senate Judiciary Comm., S. Rep. 105-190 (1998) at 29;
Judiciary Comm., H. Rep. 105-551 Pt 1 (1998) at 18; House Commerce
Comm., H. Rep. 105-551 Pt 2 (1998) at 38.
[99][2] See WIPO Copyright Treaties Implementation Act and Online
Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280
before the House Subcomm. on Courts and Intellectual Prop., 105th
Cong., 1st sess. (Sept. 16, 1997) at 62 (testimony of Asst. Sec. of
Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman
admitting that section 1201 went beyond the requirements of the WIPO
Copyright Treaty).
[100][3] For a full description of the events leading up to the
enactment of the DMCA, see Jessica Litman, Digital Copyright 89-150
(2000).
[101][4] See Pamela Samuelson, Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14
Berkeley Technology L.J. 519, 537-57 (1999)
([102]http://www.sims.berkeley.edu/~pam/papers.html)
[103][5] See Professor Ross Anderson, Cambridge University,
Declaration in Felten v. RIAA (Oct. 22, 2001), describing ways in
which the DCMA is suppressing research into security weaknesses in
SDMI watermarking technology:
([104]http://www.eff.org/IP/DMCA/Felten_v_RIAA/20011022_anderson_decl.
pdf).
[105][6] Mainstream Loudoun v. Board of Trustees, 24 F.Supp.2d 552
(E.D.Va, 1998).
[106][7] 111 F. Supp. 2d. 294 (S.D.N.Y. 2000), affd 273 F.3d 429 (2d
Cir. 2001).
[107][8] Lexmark International, Inc. v. Static Control Components,
Inc., (E.D. Ky Civil Action No. 02-571 KSF, unreported decision,
February 27, 2003), available at EFFs website at:
[108]http://www.eff.org/Cases/Lexmark_v_Static_Controls/
[109][9] The Chamberlain Group, Inc. v. Skylink Technologies, Inc.,
(N.D. Ill., Civil Action No. 02 C 6376). Complaint, Plaintiffs Motion
for Summary Judgment and Defendants Opposition to Motion for Summary
Judgment, available at EFFs website at:
[110]http://www.eff.org/Cases/Chamberlain_v_Skylink/
[111][10] Sony Computer Entertainment, Inc. v. Connectix Corporation,
203 F.3d 596 (9th Cir. 2000).
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References
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