Digital Millenium Copyright Agreement

Were MacFixIt.com and I in violation of the DMCA?

  • No

  • Yes

Results are only viewable after voting.
simX

simX

Unofficial Mac Genius
Sorry, GadgetLover, but I still want to debate on this subject even if you don't want to. Feel free to ignore this thread, but I feel a need to publish my opinion.

GadgetLover and I were having an argument about the Digital Millenium Copyright Agreement in relation to the procedure of re-burning a OS X 10.1 Update CD in a manner to produce a fully working copy of an OS X 10.1 Full Install CD, that does not have any limitations put on it.

I don't know if any of you guys had noticed, but www.macfixit.com recently (a couple weeks ago) published the procedure for doing this. Apple, of course, was not happy with this, and issued a cease and desist order, and MacFixIt, because they wanted to comply with the order and not because they were in violation of the DMCA, took the procedure off of their webpage and their archives. I have been unable to find their reply (which they briefly posted) to the ceases and desist order, which explained MacFixIt's position on the matter.

We also recently had a thread on how to do this here in MacOSX.com's forums, and (no I do not deny it) I have released the information about how to do this to certain people, and other people on the thread basically gave away the procedure, even though it seemed a little subtle.

The topic that GadgetLover and I were debating about was whether MacFixIt.com (and, similarly, I and other posters in the thread) were in violation of the DMCA because of posting information that circumvented Apple's technology to prevent people who have not bought OS X to install OS X 10.1 from the update CD. I should note that MacFixIt.com has documented that you CANNOT reinstall OS X 10.1 over an installation of OS X 10.1.1, which is a big handicap when troubleshooting OS X. Specifically, if you were a person who bought Mac OS X as soon as it came out, and then went to the store to get the free update and subsequently updated to OS X 10.1 and 10.1.1, you are forced to backup and erase your hard drive (to eliminate the previous install of OS X), install OS X, and then install the update to OS X 10.1 using the update CD, and THEN install OS X 10.1.1. If you want to install OS X 10.1 directly, you are forced to buy the $20 upgrade package or buy Mac OS X 10.1 package for $130. Obviously, most people will not want to pay anything for a supposedly free update, and this is a big troubleshooting hurdle.

This is my position on the matter (hopefully MacFixIt will send me their response, so I can post it here, too):

If you look in the text of the DMCA, available at http://www.loc.gov/copyright/legislation/dmca.pdf , it lists on page 4 of 18 three things that make a product, service, or procedure in violation of the DMCA:

"• they are primarily designed or produced to circumvent
• they have only limited commercially significant purpose or use other than to circumvent; or
• they are marketed for use in circumventing "

From this, I think that I am not in violation of the DMCA because of the aforementioned problem that you cannot reinstall OS X 10.1 over an install of OS X 10.1.1. The main reason that MacFixIt.com and I had posted these procedures is that we wanted to facilitate troubleshooting. We were aiming our post to the people who have legitimately bought OS X 10.0.x for $130, but unfortunately there will always be people who use this information to get OS X essentially for free right under Apple's nose (you cannot dispute the fact that there will always be pirates who use legitimate information for illegitimate purposes). Because of this fact, our procedures are NOT "primarily designed or produced to circumvent" procedures that Apple has put in place. The main purpose is for troubleshooting. This is a significant purpose other than circumventing, and they were not marketed for circumventing -- they were marketed for troubleshooting. Thus, none of the three above statements applies and so I or MacFixIt.com are neither in violation of the DMCA.

What do you guys think? I would really like to hear your guys' opinion on this topic.
 
... as far as i can see i completely agree with you, simX.
of course, apple has got to do something to stop people from pirating their software, and when you think about it, all this is certainly better than the crap microserf puts its users through ...
still i wonder why they didn't pirate-protect os x with a simple password/code procedure, same as any shareware would. this way, any cd could be a full install, but you'd need your original password/code to install it. of course, people will find a way to get around this (surfer serials probably), but then they'll find a way around any protection if they really want to ...
i think the main problem with piracy generally, be it software, music or whatever, is getting the message across to people that this stuff costs money for a very good reason (it was expensive to produce) and that money spent on purchasing it doesn't only go towards supplying steve jobs with gulfstream jetplanes, but is also invested in the further improvement of the merchandise, in the case of software free updates, in the case of music further cds by the artist you like, and that without the income there will be no more cds, no more updates, no more anything.

personally i think os x is worth every penny i paid for it and anyone who installs a pirated copy is an idiot.

still, i paid for it, therefore the copy i purchased is mine, and if you give me information on how to turn the upgrade cd into a full install, i don't see what can be wrong with that, imho i can do with it what i want, unless i use that information to pirate the cd, which, in that case wouldn't be your problem, but mine, especially as you quite clearly state that there is a sensible, legal reason for wanting and using this information ... troubleshooting.
so, as far as i can see you aren't in violation of anything, you're just passing on information, you have no control over the things people might do with this information. but then what do i know about music, i'm not a lawyer ... :D
 
One note I must say is that I did not say I do not agree with Apple requesting the procedure to be pulled (read: I understand why Apple made the request). It's definitely understandable that Apple is concerned about this information being published on a well-known Mac site. I just believe that neither MacFixIt.com nor I was in violation of the DMCA.

(By the way, thanks for the vote of confidence, sithious. :) )
 
absolutely, simX. i also understand apple very well...
come to think of it, i think the big difference between macfixit and you passing on this information would be that macfixit make money through their site, so they are, in a way, using information that apple wants secret as a means of making $$$, whereas as you are simply passing on information so as to help people.
if i use your information to 'hack' my upgrade cd, which i have paid for, into a full install so i can reinstall for the sake of troubleshooting, i am using my rights as owner of the cd. if i use this 'hack' to produce install cds which i then proceed to sell, i am a criminal, as i am furthering my own profit and at the same time harming apple's profit. still, this wouldn't be your problem morally, as you haven't made any money out of it. different and far more complex for macfixit though. hmmm ...
probably boils down to the difference between gnutella and napster. the problem isn't p-to-p - sharing, the problem is people like the guy who made napster getting rich from it. i begrudge that guy any money he made out of it... but i digress... :)
 
so is this like polling the jury? hope i don't have to collect my coffee & pastry after you get out of jail (just ribbing you). Information has never been against the law as far as i know. It's what people do with certain information that becomes illegal - at least in the USA.
Back in the 60's & 70's, Abbie Hoffman published a book called "Steal This Book." It was basically a how-to-guide to being a counter culture revolutionary. It advocated all sorts of stuff that was, and is, illegal. Strores sold the book. albeit, under the counter sometimes (i had to ask for my copy at a major chain bookstore). Abbie didn't go to jail for writing the book. I didn't go to jail for reading it. Abbie did go to jail for actually doing some of the things in the book. others did as well. I never did anything in the book but go around quoting "the only dope worth shooting is richard nixon." I never went tojail. Seems the same with this info. those people who use it illegally are the ones who should be punished. But anyone who owns a copy of the software to start with should have fair use rights.
I mean apple isn't ordering cease and desist for people who alter their default setups, right. they're not after hacks who figure out how to put the dock on top. They only want to make sure they get paid for what they created which is fair enough. I personally think apple could have avoided the whole problen by simply making the update available over software update like everything else. or at least posting it to download section of downloads on site w/mointoring for registered users.
btw, i will reiterate this again in this thread - you can reinstall over 10.1.1 without reformatting. I don't care what apple claims on this one. I've done it, others have done it. it works fine and all your preferences will still exist. At least it works for those of us who started with a 10.0.x disk. just start all over again and do every update in correct order. no tampered with disk is neccesary.
 
I didn't say posting a poll will answer my question, but I just want to know what you guys think.
 
feel better now testuser, now that you've got that off your chest?:D

you go guy!!:p
 
The day I received a full 10.1 install CD with the many QS 733s we buy was a godsend. We should all be grateful for the lack of a 50 character key to enter or even worse a call to whatstheirname?
 
I think I remember reading something like this thread over at slashdot (http://www.slashdot.org/). If you made your own bootable image from Apple's update CD, you may have violated the end user license agreement. I know there is a law about REVERSE ENGINEERING a product to see how it works, modifying it, blah blah blah. If you went poking around in places you weren't supposed to (and we all do it), then you most likely broke the law in some capacity. I think Apple allows some things to slip by, like login screens, minor hacks to the Aqua interface because you really have to be an Uber Nerd/Geek to be able to do these things. The general public certainly isn't going to try these things for fear of messing up their computers, and the general public certainly isn't aware of MacOSX.com. Letting the nerds play a little is what Apple wants. They just don't want a few "to show the way" with profit stealing hacks and cracks. Apple is giving us breathing room, M$ will suffocate you with every chance, and then force you to pay with the air you breathe. Just don't drive Apple into the mentality that our evil nemesis has (M$). Apple's philosophies in many ways brings to mind the idea of FREEDOM. You can do almost anything with your OS when its in your hands. You don't have to register it, you aren't limited to installing it on one computer in your house, you don't have to re-register it after adding a 6 hardware components, etc.... Just don't push too hard or the FREEDOM will disappear. I can think of no other company that allows you to do this with a commercial operating system.

 
The following series will be my only reply in this forum. The reason for this is simple; the DMCA is a very comprehensive, complex, and relatively new law with not a great deal of precedent (large body of law). Thus, until each of the Circuits' Appellate Courts (or the U.S. Supreme Court) has spoken on the matter, some of its language will be open to interpretation. Some will argue it should be applied broadly, some narrowly, and some will try to assert First Amendment Rights in defense of charges of violating it. Thus, if you REALLY want to have an articulate and meaningful discussion in this forum on this subject, I suggest that those interest should read the ENTIRE Act (readily available online - DMCA(1998)) and should read LEGAL articles in the Daily Journal and on WestLaw, Lexis, and Law.com (law review articles are a great source of diversifed information too!). Education is key. Arguing from a position of ignorance instead of enlightenment does not make the world any less round (no matter how much such people tried to convince Columbus of his foolish endeavor). Do not be confused by "wishes" vs. "reality". I, too, wish that, for example, Apple permitted customers who properly purchase OS X 10.x could upgrade to 10.x+ for a FREE or truly nominal charge (not $20 -- since when does it cost THAT much to ship something!) BUT that does not necessarily justify certain acts which circumvent their copyright mechanisms. Napster raised, for example, the issue that a lot of people think that the Record Labels charge too much for music and--to be blunt--screw their artists as well. I agree (on both counts)!! But copyright infringement is NOT the solution (boycott instead and/or purchase from independent labels and artists). While such infringement may damage the Labels (the intended effect) it is still not just and has unintended consequences as well. Similarly (and I know this is a tough issue for many), I -personally- do not believe that blowing up a medical clinic and killing professional doctors who are merely trying (rightly or wrongly) to help people who are in a difficult situation is the 'just' and ethical thing for extreme factions of the Pro Life movement (killing life to save life? -- and yes, war is a contradiction as well). Somewhere in the middle lies the proper solution. In sum, I will paste below a few items to read so that you can come to your own conclusions on the DMCA issue; just be sure not to mistake passion for permission. Good luck with your quest SimX. :) . . .
 
August 28, 2001.

"The United States Attorney's Office for the Northern District of California announced that Elcom Ltd. (also known as Elcomsoft Co. Ltd.) and Dmitry Sklyarov, 27, both of Moscow, Russia, were indicted today by a federal grand jury in San Jose, California on five counts of copyright violations. 
The defendants were each indicted on one count of conspiracy to traffic in technology primarily designed to circumvent, and marketed for use in circumventing, technology that protects a right of a copyright owner, in violation of Title 18, United States Code, Section 371; two counts of trafficking in technology primarily designed to circumvent technology that protects a right of a copyright owner, in violation of Title 17, United States Code, Section 1201(b)(1)(A); and two counts of trafficking in technology marketed for use in circumventing technology that protects a right of a copyright owner, in violation of Title 17, United States Code, Section 1201(b)(1)(C).
This is the first indictment under the Digital Millennium Copyright Act ("DMCA"), enacted by Congress in 1998.  The DMCA requires that the government prove a defendant offered to the public, provided, or trafficked in technology that was primarily designed to circumvent copyright protections, or was marketed for use in circumventing copyright protections.  The statute provides criminal penalties where the copyright violations are perpetrated for purposes of commercial advantage or private financial gain.  The DMCA also contains certain exemptions for nonprofit libraries, archives, and educational institutions, as well as for reverse engineering and encryption research.

According to the indictment, Elcom and Mr. Sklyarov are alleged to have conspired, for commercial advantage and private financial gain, to traffic in a technology that was primarily designed and produced for the purpose of circumventing, and was marketed by the defendants for use in circumventing, the Adobe Acrobat eBook Reader.  The indictment alleges that prior to June 20, 2001, Mr. Sklyarov and others wrote a program called the Advanced eBook Processor ("AEBPR"), the primary purpose of which was to remove any and all limitations on an ebook purchaser's ability to copy, distribute, print, have the text read audibly by the computer, or any other limitation imposed by the publisher or distributor of the ebook.
The indictment alleges that Elcom made the AEBPR program available for purchase on the website elcomsoft.com which was hosted in Chicago, Illinois.  According to the indictment, individuals wishing to purchase the AEBPR program were permitted to download a partially functional copy of the program from elcomsoft.com, and then were directed to pay approximately $99 to an online payment service RegNow, based in Issaquah, Washington.  Upon making a payment via the RegNow website, Elcom provided purchasers a registration number permitting full-use of the AEBPR program.
The indictment states that Adobe Systems Inc. distributes the Adobe Acrobat eBook Reader for the reading of electronic books on personal computers.  Consumers wishing to purchase ebooks formatted for the Adobe Acrobat eBook Reader can download a free copy of the eBook Reader to their personal computer and then purchase the ebook from an online retailer. Upon purchasing the ebook from the online retailer, a series of electronic communications between and among the computers of the online retailer    including, typically, an Adobe-supplied server    and the consumer's computer authorized the ebook to be read on the computer from which the purchase was made.
It is further alleged that when an eBook purchased for viewing in the Adobe eBook Reader format is sold by the publisher or distributor, the publisher or distributor of the ebook can authorize or limit the purchaser's ability to copy, distribute, print, or have the text read audibly by the computer.  The eBook Reader permits the management of such digital rights so that in the ordinary course of its operation, the eBook Reader effectively permits the publisher or distributor of the ebook to restrict or limit the exercise of  certain copyright rights of the owners of the copyrights for books distributed in the eBook Reader format. . . . ."


A copy of this press release and key court documents filed in the case may also be found on the U.S. Attorney's Office's website at: www.usdoj.gov/usao/can/

[This is a good case to read up on for info, if curious].
 
Here is some more info for you to use in your debates. I'm curious to see where this all goes.

http://www.arl.org/info/frn/copy/dmca.html

http://www.arl.org/info/frn/copy/fairuse.html

http://dailynews.yahoo.com/h/nf/20011129/bs/15036_1.html

http://www.anti-dmca.org/

http://www.law.com/cgi-bin/gx.cgi/A...cle&cid=ZZZXGTPBUUC&live=true&cst=1&pc=0&pa=0

FYI: The case against Sklyarov's employer has heated up and Sklyarov's case was dropped pending his participation in the DMCA suit against his employer:

"Feds Drop Copyright Case Against Russian Programmer


Jason Hoppin
The Recorder
December 14, 2001

Dmitry Sklyarov, the Russian programmer indicted for violating the Digital Millennium Copyright Act, saw the charges against him dropped Thursday in exchange for testimony in his former employer's trial.
Under a deal with the U.S. Attorney's Office, Sklyarov agreed to be deposed and must testify in the trial of Moscow-based ElcomSoft Co. Ltd., which remains under indictment. Until then, he is free to return to Russia. ..."

Wow, great topic!
 
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