Today’s hearing was chock full of clueless statements. Here’s Cliff Stearns, Chairman of the subcommittee:

While I would like to explore the issues HR 1201 seeks to remedy, I think the cleaner solution to this lies in technology, not necessarily legislation. On that note, I have a number of issues I would like to discuss here today. The first question I have is whether we have gotten any closer to technology that would allow a limited number of protective copies to be made of copyright-protected works. According to Mr. Valenti, representing the Motion Picture Association before the Subcommittee last year, “Keep in mind that, once copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original.” I would like to know about the state of technology in this area. I can’t think that this is not a solvable challenge. Why don’t we make it the copyright equivalent of the race to the moon. We went to the moon almost 40 years ago–it seems to me technology should afford a means of limiting the number of copies we can make of a protected work. Absent promising news on the technology front, I assume we will have to allow the legislative process to work and see if that will yield a solution, although perhaps an inelegant one.

Now, for the non-programmers in the audience: making an uncopyable file is akin to building a perpetual motion machine. It’s not just technologically challenging. It’s theoretically and logically impossible. Files are just strings of 1s and 0s. Computers manipulate 1s and 0s. There’s no such thing as an uncopyable 1 or 0, so there’s no such thing as an uncopyable file. If you’ve got one copy of a file, you can make as many copies of it as you like. That’s just the way computers work.

It’s depressing that that Rep. Stearns isn’t getting competent advice from his staff. But it’s heartening that the supporters of the DMCA have been reduced to such transparently bogus arguments. Congressman Stearns clearly accepts the premise that consumers have fair use rights that need to be respected. At some point, he’s going to realize that DRM developers are selling snake oil, and at that point the DMCA is going to be in big trouble.

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This, from from James DeLong’s testimony before Congress made my jaw drop:

So, is it fair use to copy music to a portable device, as discussed earlier? The answer should be “yes,” under the old technological regime; but under the new one, the correct answer is, “Who cares”? Consumers have made clear that they expect such functionality, and the techies quickly supplied DRM that fulfills their wish. Consumers are getting these rights from the market. Perhaps in the future, as everyone gets more sophisticated, the rights granted and the price points will be calibrated more finely. Perhaps not. But it simply does not seem to be an issue with which the law, or the Congress, should be concerned.

If I purchase a song from the iTunes music store, I cannot transfer it to a Dell or Sony MP3 player. Moreover, any tool I might develop or download to allow me to do so would be classified as a “circumvention device” under DeLong’s beloved DMCA, and be illegal. To my naive eyes, it doesn’t seem to me like I’m “getting my rights from the market.” Rather, it looks to me like I’m having my rights taken away by a heavy-handed law passed by Congress at the behest of people like DeLong. And so far, “the market” hasn’t given me the opportunity to buy those rights back (rights I would otherwise have had for free) at any price.

Let’s consider a few other rights traditionally enjoyed under copyright. If I want to get permission to include a five-second sample of a song I purchased from the iTunes Music Store in another musical work, can I buy the rights to do that? Nope. What if I wanted to give my song to another person? Can I do that? Nope. Can I purchase the right to play it with jukebox software other than iTunes? Nope. How about if I want to transfer it to my high-end home stereo system? Not for any price.

I’m honestly at a loss as to how someone who I assume follows this issue closely can write something that so brazenly ignores the actual state of the market. Is he unaware that the market is being balkanized into incompatible DRM schemes that prevent users from transferring music between them? Does he imagine that Microsoft and Apple’s DRM schemes are going to magically become compatible at some point in the future? (They’re not.) Does he think that it’s just fine that anyone who purchases a song from Apple is locked into buying iPods for the rest of his life to play that song? Does he think that no consumer will ever want to do something with an iTunes song that Apple’s engineers hadn’t anticipated?

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Lovely:

Virus writers have begun taking advantage of Sony-BMG’s use of rootkit technology in DRM software bundled with its music CDs.

Sony-BMG’s rootkit DRM technology masks files whose filenames start with “$sys$”. A newly-discovered variant of of the Breplibot Trojan takes advantage of this to drop the file “$sys$drv.exe” in the Windows system directory.

“This means, that for systems infected by the Sony DRM rootkit technology, the dropped file is entirely invisible to the user. It will not be found in any process and file listing. Only rootkit scanners, such as the free utility RootkitRevealer, can unmask the culprit,” warns Ivan Macalintal, a senior threat analyst at security firm Trend Micro.

Now here’s the awkward question for supporters of the DMCA: what would constitute “circumvention” in this case? The DMCA doesn’t make an exception for poorly-written DRM schemes. It doesn’t say circumvention is illegal unless it’s necessary to safeguard the security and stability of your computer. So if I had a PC infected with Sony’s software, would I be a criminal if I removed it? Is a programmer who shares a removal tool “trafficking” in circumvention tools?

The fundamental problem with the DMCA is that it focuses on technological design decisions (“does this product circumvent a DRM scheme”) rather than on the behavior of people (“does this company’s business model undermine copyright holders’ rights?”). The members of Congress aren’t computer programmers, and so not surprisingly, when they tried to legislate about technological design decisions, it didn’t work very well. We get vague concepts like “technological protection measure” and “circumvention device” that don’t track well with the way actual computer software works.

One solution would be to amend the DMCA to make it clear that you can circumvent DRM schemes that threaten the security of your computer. A better solution, though, would be to get Congress out of the business of legislating about technological designs altogether by repealing the anti-circumvention provisions of the DMCA.

Update: I agree with Ed Felten. This is spyware, plain and simple. Felten also links to a great followup by Mark Russinovich, the guy who broke the story in the first place, on the embarrassingly complicated uninstall process that Sony has set up to dissuade users from removing its spyware from their computers. Sony needs to realize how badly it has screwed up, apologize to its customers, and publicly distribute a one-click un-installer for its spyware DRM.

Also, if you still have a PC (and really, isn’t it time you jumped on the Mac OS bandwagon?) you should disable auto-run to protect yourself from incidents like this in the future.

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