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The Courts Government News

Fighting Spam - Using the DMCA for Good? 26

Posted by Cliff from the smacking-your-friendly-neighborhood-spammer dept.
Tesseract asks: "Since I run my own mail server, and have several processes in place to stop spam from hitting my mailbox, could it not be construed as a violation of the DMCA for spammers to 'bypass' my anti-spam protections? On a similar note, wouldn't retention of my copyrighted information (email address) be a violation of copyright law? It would seem that [parts of section 1201 might cover such situations]. How about this reference, as well? Isn't there some way to turn this legal nightmare back on itself kung-fu style?"
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Fighting Spam - Using the DMCA for Good? More

Fighting Spam - Using the DMCA for Good?

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  • DMCA doesn't apply here. (Score:5, Insightful)

    by Zack ( 44 ) on Tuesday February 11, 2003 @12:51AM (#5277046) Journal
    The DMCA forbids circumventing encryption to get to copyrighted material. I fail to see how you can construe sending mail as that.

    Secondly, your email address is a fact, and can not be copyrighted. No less than your street address.

    • Re:DMCA doesn't apply here. (Score:5, Insightful)

      by ceejayoz ( 567949 ) <cj@ceejayoz.com> on Tuesday February 11, 2003 @12:53AM (#5277055) Homepage Journal
      Hell, how'd this article get posted? Does the mention of "DMCA" and "spam" in the same article get it automatically accepted?

      Sheesh...
      • I know. Especially when there's so many other great stories:

        2003-02-11 00:12:39 Dude, I'm getting a cell! (articles,doj) (rejected)

        The "Dell Dude" was caught [wnbc.com] with a misdemeanor's amount of marijuana on him.

        In related news, Hank Azaria (as Apu) said "420!" last night on "Inside the Actor's Studio" with the Simpsons.

    • The bill refers to "a technological measure", not encryption (however, I have not read the entire text of the bill). Since it's inception, one of the complaints about the DMCA is it's over-generalisation, why can't we leverage that for us? Why couldn't "a technological measure" refer to SpamAssasin? And taking it a little farther, copyright is: the exclusive legal right to reproduce, publish, and sell the matter and form (as of a literary, musical, or artistic work) -from Webster's Online [m-w.com]. And lastly, my email address is not necessarily a fact, since I do run my own server and have the ability to change it whenever I like. Since I do run my own mail server, how much "creative license" is required before my email address becomes a work of art?

      All I'm asking for is a little creative interpretation to generate some precedents that are favorable for ME.

      • Why couldn't "a technological measure" refer to SpamAssasin?

        The question then, what copyrighted material does spamassasin protect?

        Since they are sending YOU something, it doesn't. (Unless you have an autoresponder that sends a copyrighted work to whoever sends you email.)

        my email address is not necessarily a fact, since I do run my own server and have the ability to change it whenever I like.

        Yes, it is necessarily a fact. Just because you can change something doesn't mean that it's not a fact.

        Changeability isn't a test of copyrightability, in any case. Think about what you're saying "I can change something, so therefore I can copyright it." You might as well say "I can eat something, so therefore I can ignore it." The two have no bearing on one another.
      • Are you crazy? You can't consult Webster's dictionary for legal definitions. Copyright, the scope of copyright, and technological measures are defined in the US code (title 17), so that's where you should look.

        The DMCA does not ban anyone circumventing technology in a way that you don't like. It only applies to the specific case of circumventing access controls for copyrighted works, and there are clearly no copyrighted works involved here.
        • It only applies to the specific case of circumventing access controls for copyrighted works, and there are clearly no copyrighted works involved here
          Well, since the email written by the spammer is techically copyright by the spammer, and the spamassasin or equivalent is a technical means for blocking access to that copyrighted work, then it seems that it would be illegal to circumvent that measure. I don't recall seeing anything in the DMCA that exempts the copyright holder from the ban against circumventing the technology.
          • I don't recall seeing anything in the DMCA that exempts the copyright holder from the ban against circumventing the technology.

            Well then read the damn law! (http://www4.law.cornell.edu/uscode/17/1201.html) Even in the crazy interpretation you describe, circumvention only occurs when it is done without the authority of the copyright holder. The spammer obviously has authority of the copyright holder (himself!).

            It's true that the DMCA is a vague and crappy law, but it is not as vague as slashdot readers seem to think it is.
            • Dammit, obviously my attempt at sarchasm bombed.

              But actually reading the law : IANAL, therefore my opinion isn't worth sh*t on that,
              there is nothing that gives the copyright holder permission to defeat the technological measure in order to force access to the copyright holder's work when it is controlling access to other copyright holders works - and the technological measure in this case still meets the rest of the definition.

              As far as I can tell the authority of the copyright owner only extends to the content of the message (the spam itself), not to the the technological measure.

              Unless the spammer has copyright to all of the mail that is arriving, he is still bypassing that protection, and does NOT have the authority of the copyright owners.

              It may even be arguable that the spam is bypassing the protections and modifying (by adding his spam to the incoming mail) the context of other copyrighted works.

              I'd certainly consider that any spam that got past my spam filters is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
              said protected work being the compilation of the desirable (and copyrighted) messages.
              • If the spammer is bypassing spamassassin in order to download your mail then there might be some trouble with copyright or even the DMCA. Unfortunately, spamassassin doesn't protect your inbox from other people downloading your mail, it protects from the delievery of spam. The only work being copied is the spammer's mail, and the software in question doesn't control access to that or any other copyrighted work.

                In any case, these kinds of twisted arguments would fall apart in court. Judges don't think like hackers! Their job is to interpret the meaning of a law (of which a large part is the actual intent of the law), which means that you need a clear argument, not one based on stretches of the imagination and technicalities.
        • Simple. Add copyrighted text to the SMTP 250 Sender OK, 250 Recipient OK, or 354 Enter Data message. That's your copyrighted material you're trying to protect.

  • Things like this would be true. But we live in america, where the spammers think that what they are doing is a perfectly legitimate business model, that doesn't actually hurt anyone.

    Of course, if such claims could be held in court, it would be interesting to see the spammers fight the DMCA :)

  • Please refrain from using this medium in the future.

  • ha ha ha (Score:1, Interesting)

    by Anonymous Coward
    are you a big company that gives lots of money to the government?

    then get lost. the dmca doesn't apply to you.

    and you run a server, that makes you a computer expert. that's one step away from hacker, pirate, or terrorist.

    remember, this government isn't here to protect YOU, it's funny you'd think that.

  • Don't grant it the legitimacy (Score:5, Interesting)

    by Pyromage ( 19360 ) on Tuesday February 11, 2003 @01:10AM (#5277131) Homepage
    The instant you try to use it like this: sure it is valid under the letter of the law, however, it's clearly a wrong and misguided law, and arguably unconstitutional.

    You'd probably win in court with this: this would be bad because it sets a precedent that the DMCA is valid, which it is not. Be better than they are and don't fsck over the rest of us.
    • I do beleive your theory on constitutionality of law is incorrect. Laws are not judged to be constitutional because several courts have cited it in rulings. A law can be thrown out at any time as unconstitutional and the final arbiter is the Supreme Court. If said law is ruled to unconstitutional, convictions under that law are held to be invalid.

  • DCMA is not useful. And remember (Score:5, Insightful)

    by Ayanami Rei ( 621112 ) <rayanami&gmail,com> on Tuesday February 11, 2003 @01:11AM (#5277138) Journal
    If it could be useful against spam, the same argument can be turned against you and be made to prevent deep linking, etc.

    Your email address is a simple URL, and the email becomes an access_log entry. The spam protection is a referral-link + user-agent check.

    Do you see where this is going?
  • Your e-mail address is not copyrightable. And e-mail address is a fact. Just like you cannot copyright a telephone number.

  • What? (Score:3, Insightful)

    by Steve Cox ( 207680 ) on Tuesday February 11, 2003 @05:19AM (#5277901)
    Yeah right, because the DCMA is enforceable outside of the US.

    Also - what kind of copyright do you think your emails has? NONE! Maybe you could trademark your domain, but:

    a. It would cost a BOMB for an internationally recognised trademark (remember - the world is bigger than the US).
    b. It would cost a BOMB to enfoprce it - you have to enforce it otherwise you lose it.

    The best you can do is what everyone else does - only give your primary email address to people you trust. For mailing lists, etc. create email addresses with the various free email services out there.

    Steve.
  • "..turn this legal nightmare back on itself kung-fu style?"
    I thought it was judo that was based on the concept of using one's opponent's own weight or strength against him. Do they do this in kung-fun also? Are there any martial artists who can clarify this?
    • Well, he is just being ignorant about the use of the word, but there are numerous martial arts like judo that turn an attacker's force to the defender's advantage. Jujitsu (the non-philosophical forefather of judo), aikido, hapkido, and even tai chi use significant numbers redirection techniques and are known as "soft" martial arts. "Hard" martial arts like karate, tae kwon do, wu shu, and most forms of "kung fu" focus more on strikes and blocks.

      Further, "kung fu" by itself is a slight misnomer. Roughly speaking, "kung fu" means something like "style of." Praying Mantis Kung Fu, Shaolin Kung Fu, Crane Kung Fu and others are basically entirely different martial arts styles that are based on the same hard martial art root. As far as I'm aware, few "kung fu" martial arts spend much emphasis on redirection techniques, instead focusing mainly on strikes, blocks, and holds.

      Disclaimer: I'm not a martial artist. I just read a lot about martial arts in the hopes of one day getting off my duff and learning one or more.

  • The DMCA is like the One Ring (Score:3, Funny)

    by Levine ( 22596 ) <levine@ g o a t s e . cx> on Wednesday February 12, 2003 @10:37AM (#5287269) Homepage
    We musn't let it tempt us with its power. It bends its bearer to its will, and cannot be used as a weapon to fight darker forces.

    CAST IT INTO THE FIRE

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