IP: Interesting problem with the DMCA

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Adam Lynch <alynch () sprawl net>
Date: Thu, 14 Feb 2002 13:21:58 -0500
To: dave () farber net
Subject: Interesting problem with the DMCA

Dave-

  Just found this page linked to from Slashdot, and thought it might be
of interest to IP readers.

  Not that we haven't all heard plenty of stories about the horrors of
the DMCA...

Adam

---------------------------------------------
http://www-users.cs.umn.edu/~mcmillen/dmca/
---------------------------------------------

My Run-In With The Digital Millennium Copyright Act
Colin McMillen (mcmillen at cs.umn.edu)

-----
I'm currently having an encounter with the Digital Millennium Copyright Act
that I believe may be relatively unique.

I'm currently enrolled in a Real-Time Systems lab here at my university (the
University of Minnesota). As part of the lab, we are intending on using the
Sega Dreamcast console as a real-time system; we'll be writing a scheduler
for it and some simple games.

I recently ordered a Dreamcast Coders' Cable from lik-sang.com, a dealer
based in Hong Kong. The coders' cable is simply a serial cable with a
special end to fit into the Dreamcast's serial port. It allows you to upload
your code from your PC at 115200 bps to the Dreamcast. This is a necessary
item for amateur Dreamcast coding (unless you want to fork out the money for
the Dreamcast Broadband Adapter, an expensive, no-longer-manufactured piece
of hardware that does the same thing, but with a higher transfer rate.) The
package was supposedly shipped UPS express, to arrive here in 3-5 days.

After nearly two weeks of waiting, I determined through UPS' package
tracking 
that the package had been sitting in a warehouse in Louisville for over a
week. 
I e-mailed UPS customer service about the delay, and got the following
response: 

"Thank you for your inquiry.  We sincerely apologize for any inconvenience
caused by this matter.  Our system indicates this package has been denied
entry into the US by US customs authorities due to the DIGITAL MILLENNIUM
COPYRIGHT ACT.  The shipper of record has been notified and the package will
be returned to the shipper."
[Emphasis supplied.]

Now, I have a perfectly legitimate use for this cable, and no illegitimate
use; I do not own any Dreamcast games, legal or pirated, nor do I have any
real desire to. Classes and work simply take too much of my time. The
Dreamcast isn't even mine; it's my roommate's. In my opinion, this is a
clear 
example of the DMCA being used to suppress an academic pursuit. This is
clearly fair use, and no more of a "circumvention device" than any other
serial cable you could buy at the local Radio Shack. Furthermore, in US
Customs' list of prohibitions and restrictions, the only sentence mentioning
copyright is the following:

"38. Copyrights. Articles imported into the United States that are piratical
of a registered copyright are subject to seizure and forfeiture."
 
Am I the only person who fails to see how a serial cable could possibly be
considered "piratical of a registered copyright"?

I later got a message on my machine from UPS customer support:

"This is [name removed] from UPS. I'm returning your call in regards to your
shipment from Hong Kong that has been denied entry. US Customs has denied
entry on this shipment because it is a copyright violation...."
[5-second pause] 

"... and that is why they have denied the entry on it. If you have any
further questions you can reach me at [number removed]."

I called the employee back, and was basically informed that there was
nothing 
I can do. She said she could not give out any contact information regarding
the person responsible for the customs rejection. She also stated that there
is no way to overturn the customs decision after it has been made. The item
has supposedly been sent back to the shipper, so I'm hoping to at least get
a 
refund. 

I've apparently been given the run-around by the UPS "customer service"
department; according to US Customs, I'm supposedly allowed to protest their
decision: 

Protest
Within 90 days after the date of liquidation or other decision, an importer
or consignee may protest the decision and receive an administrative review.
The protest is filed with the port director whose decision is being
protested.
At the time the initial protest is filed, the importer or consignee must
make 
a request for further review if one is desired. Review of the port
director's 
decision by the Customs Service Center or Headquarters is then automatic.
Notice of the denial of all or part of the protest will be mailed to the
person filing the protest or to his agent. Any person whose protest has been
denied may contest the denial by filing a civil action in the United States
Court of International Trade.

I've been contacted by someone from the Electronic Frontier Foundation,
who's 
been giving me some advice; basically, they'd like some corroboration that
Sega has indeed authorized amateur Dreamcast development. I've referred him
to this post on the NetBSD port-dreamcast mailing list. This post is by John
Byrd, Sega's Director of Development Technology, and indicates that Sega is
partial to amateur development. This isn't proof of anything, but I've sent
an email off to Byrd regarding Sega's official stance on amateur
development. 
However, I have not yet heard back.

If there's anyone out there who has any further evidence that Sega agrees
with amateur Dreamcast development, I'd be glad to know... it would help a
lot. 


-- 
---                
AdamL.             
                   
alynch () sprawl net  

     Perfection is what we achieve when we lower our standards.



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