Toys, Copyright and Cyberwar

One of the most amusing aspects (to me) of covering the Internet is seeing the folkways of different industries revealed in their reaction to Internet questions.

The toy business provides a great example.

Most of us encounter the industry once a year, around Christmas. We notice how vendors control channels by supplying (or withholding) ample quantities of the year’s hot product.

Whether it’s a Beanie Baby, Furby or (last year’s winner) the Pokimon GameBoy, we dance to whatever tune the manufacturer plays, knowing the ultimate manipulators are the ones with the runny noses.

It turns out the folks in the toy aisle play hardball all year long. They’re proving it in their dealings with technology.

Let’s start with Mattel. Barbie’s folks got into technology by buying The Learning Co., and that firm’s problems cost top Mattel executives their jobs. They also bought Microsystems Software Inc., maker of the Cyber Patrol censorware program.

When activist hackers in Canada and Sweden published a method for seeing what sites Cyber Patrol blocks, cracking its encryption in the process, Mattel got busy. They sued under the Copyright Act, won a restraining order, got the code back, then tried to close a host of mirror sites that emerged to support the hackers.

If that sounds cold, it’s not nearly so cold as the language U.S. District Court Judge Edward Harrington used in Mattel’s support. His permanent injunction also covers worldwide distribution of the software.

If you’re looking for a friendlier toy company, don’t look at Mattel’s rival Hasbro. Hasbro’s action under the Copyright Act is aimed at maintaining its control of game technology control it acquired with the late Atari Interactive. Developers are hopping mad, fearing that the company is using the law to prevent the minor innovations that keeps software moving ahead.

Folks I’ve talked to about Mattel and Hasbro say this kind of aggressive legal action is fairly common in the toy game. But there’s a second, more general point here that isn’t fun and games and deserves to be repeated.

That point involves the Copyright Act, specifically the Digital Millennium Copyright Act of 1998. In the last few months the DMCA has become the legal weapon of choice by which all types of content owners software companies, movie companies, music companies are waging war against the Internet.

They’re using the DMCA for two reasons. First, it’s aimed at making certain types of software (and software authoring techniques like reverse engineering) illegal on their face. Second, and perhaps more important, the DMCA was enacted to implement the terms of an international treaty, giving its strictures worldwide reach matching the worldwide reach of the Internet.

Calling the authors of these treaties and laws clueless won’t do. They were not ignorant they knew all about the Internet. Copyright holders of all types pressed for these laws and treaties, saying they couldn’t do business in the 21st century without them.

The result is a real cyberwar, one conducted on servers and in courtrooms around the world, one both sides feel confident they will win, leaving them both opposed to further political action. My prediction is more casualties will be taken over the next several years, and if technology loses, political action will suddenly become far more fashionable.

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