Okay, follow me on this one, this is great:

One of the provisions of the Digital Millennium Copyright Act (DMCA, passed into law in 1998 as house resolution 2281) is that not only is it illegal to circumvent content-protection schemes (for music, CDs, DVDs, anything) but it's also illegal to distribute such circumventions, even if the circumvention mechanism in question can be used for legal purposes, such as making a personal backup of a piece of software or encoding a CD to mp3 to listen on your portable player.

The most famous test case for this was regarding DeCSS, a small software app that allowed people to copy and decrypt DVD movies. Within weeks of the software coming out, the developer was sued, and sites hosting the software were ordered to remove or face prosecution.

The most notable site refusing to remove the program was the hacker site 2600. 2600 was sued by the Motion Picture Association of America (MPAA) where the judge found in favor of the plaintiff, and 2600 lost [pdf]. To be clear, they were breaking the law because they were, through dissemination of information, enabling people to circumvent a content-protection scheme.

In a similar case, a Russian programmer, Dmitry Sklyarov, was detained while attending a trade show in the United States because of his participation in creating a program that circumvented Adobe's content copy-protection scheme.

After Adobe customers staged significant protests at Adobe's San Jose headquarters, Adobe asked that the charges against Sklyarov be dropped. Since it was a criminal matter, not a civil matter, Federal prosecutors had the option to continue with the charges against Sklyarov if they so chose. As of May 8th, a federal judge has declared that the law is constitutional, and that Sklyarov and his company must still stand trial to determine if they violated it.

...

A few months ago, Sony started manufacturing audio discs with a copy-protection scheme which inhibited their being ripped into MP3s by making them incompatible with the Audio CD and Hybrid CD formats in such a way that most audio CD players could read them, but CD-ROM drives could not. (Pioneer, the developer of the CD format, claims that Sony can't call them 'Audio CDs' because they don't conform to the standard for that designation.)

The protection system works by making a 'hybrid CD' that looks like it contains both an audio session (with the music tracks) and a data session. While an audio CD player ignores the data portion entirely, a CD-ROM drive will check the data session on mounting the disc, to determine what it should do with that data. On Sony's disc, they place corrupt header data on that session, so that the CD-ROM drive rejects the disc, audio tracks and all, and refuses to mount it.

Some smart folks figured out that this was how Sony managed their trick, and they scribbled over the data session portion of the disc with a black marker. The data portion is visible as the matte ring around the edge of the CD, while the audio tracks make up the matte circle from the inner edge to nearly the outer edge of the CD.

Covering the data track prevents it from being read in the first place, and thus the CD-ROM drive sees a simple audio CD, and operates normally.

Okay, well and good. Except that by the letter of the DMCA, this is a circumvention mechanism and it is therefore illegal to make this modification to the media you purchased. Further, disseminating instructions on how to circumvent the copy-protection mechanism is also a criminal violation of the DMCA.

So yesterday CNN publishes a story about the circumvention technique, spelling out in the introductory paragraph exactly how to defeat Sony's copy protection mechanism.

According to the DCMA, ratified by Congress and upheld by the federal courts, CNN appears to be in violation of the law, and should face criminal prosecution (as should I for this very post).

It's irrelevant that Sony might not want to press charges against CNN. The federal government's refusal to grant Adobe's request to drop the charges against Sklyarov demonstrates that, as a criminal matter, the decision on whether to prosecute doesn't lie solely with the alleged victim.

The trouble is that the only person who is helped by this prosecution is the consumer. The entertainment industry would rather not have this trial come to court for fear it would expose the DMCA's protections as going beyond reason and restricting a free press. CNN would rather not get prosecuted. Actually, I hope I'm wrong and CNN would welcome the constitutional challenge, but with so many media outlets being owned by entertainment corporations in favor of the DMCA, it's questionable how likely CNN, or other sizable media outlets would be to test this case. A smaller outlet probably wouldn't want to risk the legal consequences of losing.

It's important to realize that bringing CNN to court over its story sounds stupid and childish, and it absolutely is. sadly, it's what the DMCA demands, and I dearly, dearly hope that it happens to show that the copy-protection-protection laws in the DMCA go far beyond what is reasonable for the protections they seek to provide, and that this case may be the method for stopping the next Sklyarov, or any person simply wanting an mp3 of the album for which they've purchased an individual license.

I'm sending out a few emails tonight. Further news will follow if any of the people in positions to do something about this get back to me...