San Francisco Bay Guardian

Bringing In the Harvest

Deep in the hills of Northern California's Mendocino County, past three locked gates and up a winding dirt road, the trimmers at Green Mountain Farm are bringing in the harvest. The marijuana plants, which stand four to seven feet tall, are garlanded with dense clusters of fragrant, seedless buds that must be carefully picked and cured before they are dampened by winter rains -- or seized by law enforcement, which has set a record by destroying well over one million marijuana plants this year.

The 50 trimmers at this clandestine grow site work 16-hour days for three weeks, hand-trimming top-grade marijuana destined for medical marijuana patients and dispensaries in San Francisco.

"It's a race against time," says Antie M, manager of the Green Mountain Farm collective, which is cultivating 280 plants for 125 patients.

Under California state law, caregivers and patients are permitted to grow marijuana for a group of patients and can be reimbursed for their expenses. In exchange for allowing the growers to post medical cannabis recommendations from patients' doctors at the grow site -- providing some degree of legal protection for the growers -- the patients receive free cannabis. Most collectives meet their expenses by selling their surplus pot to dispensaries or directly to other patients.

Each patient at this collective will receive a quarter pound of free cannabis, plus a chance to take in beautiful scenery, eat good food, and listen to live music.

While San Francisco city supervisors haggle over cultivation limits and zoning restrictions for medical cannabis dispensaries there's another reality taking place a couple hundred miles to the north. Whatever the supervisors decide, someone has to grow all the pot that gets smoked by patients in the city -- and no matter how friendly city officials are to the end product, the growers are still hounded by law enforcement.

The trim camp at Green Mountain Farm is only one of many such gatherings taking place throughout northern California this month. And this constellation of quasi-legal outdoor marijuana grow sites doesn't just cultivate exquisite medical cannabis.

The farmers who tend these plants are also creating environmentally and socially responsible cannabis farms very different from the armed, old-school, commercial marijuana plantations that feed an insatiable market but often damage the land.

An estimated 80 percent of the medical cannabis consumed in San Francisco comes from outside the city. Let's follow some of these buds as they make their way into town.

Family farm

Quietly cultivating a cannabis crop and then hosting 50 trimmers at a clandestine grow site miles from a power line requires impressive planning. Arriving blindfolded at Green Mountain Farm, I discover a comfortable camp resembling an agricultural version of a Rainbow Family gathering.

The trimmers at Green Mountain sleep in a tidy tent village and eat tasty vegetarian meals prepared by two paid cooks in a well-equipped kitchen complete with two gas ranges and two refrigerators. They take hot showers and listen to music from a laptop and iPods -- all powered by a generator running on 50-cents-a-gallon vegetable oil.

The cultivators here trucked in $30,000 worth of compost to privately owned land to ensure that their cannabis met San Francisco standards. Under California law, patients and caregiver-cultivators are allowed to grow at least 6 mature and 12 immature plants per patient unless the county or a doctor authorizes more. Mendocino County allows 100 square feet of plant canopy per patient. Antie M, who is descended from eight generations of tobacco farmers, says the lush plants in this garden meet those guidelines.

The water that sustains this crop is supplied by a well. A 10,000-gallon tank feeds the irrigation system for the garden, which grows to the edge of the kitchen. A 75-foot-long temporary structure, which serves as a trimming and drying room, stands nearby. The atmosphere in the camp is relaxed but focused. There are no alcohol, hard drugs, or weapons, and everyone must be quiet by midnight. Some people smoke cannabis while they work. The night I visit, the camp puts on a talent show. A shiatsu massage therapist is on hand for those with aching shoulders.

"We live together and work together, we sit and trim plants all day long, it is a very harmonious organization," a 56-year-old trimmer named Jojo says.

The trimmers at Green Mountain Farm range in age from 18 to 65. They are people of color, white folks, queer, straight. Antie M says he met many of the trimmers at music festivals and other gatherings. Others are simply friends. Many trimmers are patients from the collective who also get their free quarter pound. Some are not.

The trimmers are paid in cannabis, and the pay scale is set up to encourage a rapid harvest. Trimmers earn 2.5 grams of cannabis an hour for the first 100 hours, 3 grams for the next 100, and 3.5 grams per hour after that. After the first 200 hours, those who work 8 hours a day can make an ounce -- worth $400 retail -- a day. According to Antie M, 90 percent of the grow is sold to medical cannabis dispensaries. The rest goes to patients in the collective and workers: Trimmers who work hard the entire season can leave with as much as $8,000 to $10,000 worth of cannabis.

"A patient can get their entire year's supply of marijuana," Antie M says. "[With] what people earn here, they can support themselves for a year, they can live their dreams, travel."

"If you put in a long day, you can earn two ounces a day," says a sixtysomething trimmer named Sheila, who clips steadily at the bud in his hands. "Thank you, God. I came to work, and I would love to hold on to a half pound and sell the rest, maybe a pound and a half or more."

Sheila, Antie M, and many other people at Green Mountain Farm are queer men, radical fairies who say watching friends die from HIV/AIDS motivated them to become cultivators. A trimmer named Keer, who has lived with HIV for 10 years, sits quietly on the sofa inside the camp kitchen. He says he first started cultivating marijuana 15 years ago with medical cannabis pioneer Dennis Peron. Keer says Peron emphasized growing high-quality cannabis, not just quick marijuana crops designed to generate fast cash.

"When Dennis and Brownie Mary came along and started the Medical Cannabis Buyers Club in San Francisco, it felt safe, and people could get higher-quality marijuana that was not sprayed or at least organic," Keer says. "The seed they planted caused people to start educating each other, and it grew into a community and set a good example."

Community service

Not all the growers are men. Green Witch and members of her all-women's cannabis collective slip quietly into San Francisco one night, taking a break from their harvest up north. High Priestess Farm, which the collective operates, serves 24 mostly low-income women in San Francisco, who each receive six ounces of free cannabis every year.

A member of the collective, named Elf, runs three patient-support groups. She works with eight collectives, which contribute free cannabis each week and earn the money to feed at least 100 indigent San Francisco patients.

"The old-school model are drug dealers, and the new-school model are community workers and healers," Green Witch says. "Our business structure is not about a guy who is never on the land but gets a huge percentage. We share the responsibilities, the risk and profit, evenly."

Mary Jane, a 63-year-old elder in the medical cannabis community who grows for the Grandmother Farm collective, in Mendocino County, also helps supply dispensaries. Her collective provides a pound of free cannabis to patients who are often unable to grow it for themselves.

Plant yields vary wildly. Mary Jane, whose plants have been besieged by fog and rain this year, says she'll be lucky if she gets two ounces per plant.

Mary Jane says she's working with the Mendocino Branch of the Medical Marijuana Patients Union to develop LINK, a matchmaking service between cultivators and patients. "If we have a number of small collectives growing for patients, we can help prevent profiteering and make sure patients get their medicine," Mary Jane says.

While the collectives have protection under state law, all are concerned about being raided by federal authorities. The women keep their grows under 100 plants -- the cutoff for a federal five-year mandatory minimum prison sentence.

"There is a legal fund for the risk-takers, and our sister farms make sure that no matter what happens to us, our patients will get their medicine," Elf says.

The women of High Priestess Farm emphasize that they run an organic farm. Benedict, who spent five and a half months alone tending the plants at Green Mountain Farm, shares these values. And he is wary of a possible raid by law enforcement. When he first arrived, Benedict says, he was frightened of being arrested. "I'd lie awake at night completely terrified."

One day law enforcement paid a visit. Three helicopters surfaced over the ridge and circled the grow, hovering so low that Benedict says he made eye contact with the officers inside. Those officers, Benedict says, worked for CAMP, the California Department of Justice's Campaign Against Marijuana Planting, which destroyed almost 100,000 marijuana plants in Mendocino County this summer.

That time, he was in luck: They never came back.

The old world

The officers of CAMP meet at dawn for a raid in the Shasta Trinity National Forrest. CAMP is an interagency marijuana eradication task force, and there are officers here from eight law-enforcement organizations, including the National Guard. Five CAMP units, with 15 officers each, are on call around the state to support local law enforcement when they raid marijuana gardens.

The men wear camouflage and carry a variety of weapons: AK-47s, .22 rifles, .410/.22 combination guns, Colt sidearms, and M16s. There's a helicopter on site, which transports a Short Term Airborne Operations team that drops agents into marijuana grows. The helicopter has flown five days a week since May and burns a hundred gallons of fuel a day.

CAMP commander Michael Johnson says he relies on county officials to tell him whether a grow site is a posted medical marijuana garden in compliance with local cultivation limits. He says CAMP is not a threat to medical marijuana farms.

"To my knowledge, we have not been involved in one medical marijuana grow all this year," Johnson says.

As a California law-enforcement officer, Johnson says he respects state medical marijuana laws and has orders from the state attorney general's office not to step outside them.

"There is so much commercial marijuana out there, we don't have time to deal with medical marijuana," Johnson says. "We are focused on the large gardens-for-profit, and there are plenty of those to keep us busy."

Johnson says CAMP has destroyed well over a million plants this season, up from 621,000, in 2004.

Funded by the state and federal government, CAMP's 2004 budget of $1 million was increased by 30 percent this year, Johnson says. He says his unit targets multi-thousand-plant grows that are mostly on public land.

Jason Gassaway, of the Shasta County Sheriff's Department, arrives with his dog, Jet, whose job is to run down suspects fleeing from a grow. "Most of the grows are armed, so it's good for us to prevent deadly encounters," Gassaway says. "Most of the time, when they see a dog, they give up."

Johnson says three hunting parties have encountered armed growers this year. One cultivator was killed earlier this summer in a shoot-out with a Fish and Game officer, who was wounded in the exchange.

We pile into trucks, drive to a trailhead, then hike silently up a steep slope. A half mile up the hill, we see irrigation hoses and smell cannabis. I look down and see we are surrounded by marijuana plants -- or what's left of them. The entire garden, camouflaged under oak trees, has been harvested. An agent estimates the grow appears to have been several thousand plants, cut down a few weeks ago.

The plants, terraced on the hillside, appear to have been small. The stalks that remain support runty, shriveled buds. A detective on the raid says most of the marijuana on these farms is sold for $2,500 a pound out of state because it doesn't meet the standards Californians expect from their cannabis.

Kris Hermes, legal campaign director with Americans for Safe Access, a patients' rights group, says he has heard no reports this year of marijuana grows raided by CAMP. But he notes that medical cannabis growers around the state continue to be prosecuted by local, state, and federal authorities. He points to two collectives in Butte and El Dorado counties raided by local sheriffs last month. Down the hill from the harvested garden, we find what remains of the growers' camp. They've left behind their camp stove, plastic sheeting, pots and pans, and pieces of cardboard that appear to have been slept on. No snug tent village or lovingly prepared food for these farmers.

Agent Eddy, a quiet Latino man, says many of the farmers apprehended in the gardens this year come from one Mexican state.

"They come from very poor towns in Michoacn; the organizers go there and pay them a couple of thousand of dollars to come here and farm marijuana," he says. "I don't think I'd want to stay here all season and live like this."

Johnson says CAMP made 46 arrests this year, almost all Mexican field-workers. He says the grow owners are members of Mexican cartels that plant multiple large grows with the assumption that a certain percentage of them will get raided.

Hermes is skeptical about the Mexican cartel allegation, which, he says, is an attempt to draw public support away from marijuana growers. He says this account is similar to a claim put forth by the Drug Enforcement Administration (DEA) that a group of San Francisco dispensary owners raided this summer were members of an Asian mafia.

"Law enforcement loves to issue sensational statements grabbing the public attention and providing a favorable environment to justify their harsh reactions to marijuana cultivation and distribution," Hermes says.

But CAMP officers are just as sincere about the righteousness of their cause as the medical cannabis growers are about theirs. Many agents point to the environmental damage done by commercial grows, and it's clear this grow site was no environmentally sensitive cannabis farm. We see bags of nitrogen fertilizer, rat poison, and malathion pesticide, which the agents say leaches into the local water supply. The hillside and the growers' camp are strewn with trash.

When we descend the hill, I ask Agent Jeff Wallace if he thinks the environmental damage from grows on public land would be eliminated if marijuana could be cultivated openly. "I wouldn't agree with that argument," he says. "It's still a gateway drug for meth or cocaine; I wouldn't want my kids out there recreationally smoking marijuana."

Johnson argues it would be too difficult to control the quality of legal marijuana, and public land provides rent-free, cheap, well-hidden grow sites. "People grow marijuana freely in Mendocino," Johnson says. "But there are still hundreds of illegal gardens. Why would legalization stop that if there is a market and money to be made growing it?"

Sheila, the trimmer at Green Mountain Farm, disagrees, pointing out that large marijuana grows are still illegal. "The laws that were created force people to be clandestine," Sheila says. "They have created a problem for themselves; it is a way to keep busy."

The trim continues

Meanwhile, back at Green Mountain Farm, the trimmers work with quiet intensity harvesting Trainwreck, Grand Daddy Purple, New York City Diesel, Super Kush, and other cannabis strains grown at the site.

Each carefully numbered plant is first chopped at the base with pruning shears, and the branches are cut off with buds intact. The branches are trimmed and brought to the fanners, who cut off the larger outer leaves with two patented Canadian TrimPro machines that look like giant fans inside a metal mesh cage.

The roughly trimmed stalks are carried over to hand trimmers, who sit among the plants on a sunny ridge. Using tiny scissors, the trimmers carefully shape the buds. The trim is gathered in cardboard boxes on their laps and sent to trim racks, where it is dried and used to make hash or marijuana edibles.

After manicuring, the stalks are walked over to the dry room, kept at a constant 50 to 60 percent humidity with the help of a humidifier, a dehumidifier, an air conditioner, and a swamp cooler. The buds are dried for 10 days before being snipped off the stalks and bagged.

Antie M says his intention for Green Mountain Farm is that it be a place of healing where people can ease off alcohol, hard drugs, and turbulence in their lives. A handsome young trimmer named Travis Wade, who says he used cannabis to kick a methamphetamine habit, says living on the land is strengthening his body. A trimmer named Shockra, who fled his damaged house in New Orleans and refugee camps, says the money he makes trimming will help him start a new life.

"Creating community is a major driving factor in bringing this all together," says Antie M, who arranged for a six-piece band to play all last weekend at his trim camp. "I want it to be an incredible experience for people."

I ask Antie M if he's worried about getting busted. He says two of his grows were raided in previous years by county authorities who seized the crop but declined to press charges. He says he has learned to plant smaller grows and has no animosity toward law enforcement.

"If they really want me, they can come and get me, but I am really trying to play by the rules," Antie M says after dinner at Forrest Farm, a smaller 100-plant grow he also manages. "It will be interesting to see what happens between now and Halloween."

The risk

Up in Lake County, California, Eddy Lepp's collective openly cultivated the largest-known medical cannabis crop -- 32,000 plants -- and was busted by the DEA. He's now in federal court pleading a religious defense, because federal law does not allow him a medical defense. If convicted, he could serve life in prison.

Phil and Bobby, the cultivators at the Oak Tree Farm collective, in Lake County, are keeping a close watch on their grow. To prevent potentially losing their entire crop to law enforcement, they grew a second, early harvest in their greenhouse, forcing the buds to mature early using light-deprivation techniques.

The two growers have also banded with other small cannabis farms to create an insurance fund that would partially reimburse a farm that gets raided or suffers crop failure.

But these cultivators say one of their greatest concerns is simply being robbed. "The biggest risk is our neighbors," says Bobby, who says two men jumped the fence in the middle of last year's harvest and demanded a payoff. "Someone was going around with a map of the farms last year strong-arming people."

"You can call the local authorities and have them come out and support you and just hope that they don't turn you over to the feds," Phil says.

Back in San Francisco, Hector is also worried about federal agents. His 350-plant indoor grow, which produces about two ounces per plant, supplies a 12-member patient collective, two dispensaries, and an AIDS hospice. Over the past year, Hector says, more of San Francisco's medical cannabis is coming in from outside the city because it's become perilous and costly to grow in town. "I am concerned about the San Francisco Police Department kicking in the door because of their past cooperation with federal officials," he says.

San Francisco's proposed dispensary regulations offer no specific protections for grow collectives. City supervisors are debating cultivation limits. The regulations attempt to protect dispensaries under state law by defining them as "any association, cooperative or collective of ten more qualified patients or primary caregivers that facilitates the lawful distribution of medical cannabis."

Some dispensaries have become grow collectives to comply with the law. But Hector says his collective, which does not run a retail operation, has no intention of registering with the city and revealing the location of its grow. To do so would be too dangerous and expensive. "We are not going to pay $7,000 in permitting fees to give away free marijuana to hospices," Hector says.

On the road

Antie M still has to get his cannabis into the city. We load up his vehicle with several pounds of dried, manicured bud and head into San Francisco. "I've got some Trainwreck," he says on the phone to a dispensary manager. "It's very sparkly."

State law allows eight ounces of medical cannabis to be transported for each patient but doesn't explicitly permit sales to dispensaries. Each county has different limits and interpretations by law enforcement. They could seize the cannabis and arrest us.

Antie M asks me to keep an eye on the speedometer. He says he learned to abide by motor vehicle laws after he was stopped once for running a stop sign with two pounds of pot in the car. We drive like model citizens. I watch for police. Near San Francisco City Hall, we get stuck in heavy traffic. As we approach the dispensary, I ask Antie M please not to make an illegal left-hand turn.

We arrive without incident, park legally, and walk into a dispensary. It's evening, and the place is almost empty. We sit behind the counter, and Antie M and the clerk look at the cannabis under the microscope. It shows no sign of rot or pests and shimmers with droplets of resin. "Beautiful job; well done," the clerk says. The room is pungent. Purchasers come and go. A patient asks for Trainwreck and is told they'll have it soon. It takes Antie M almost an hour to find a scale large enough to weigh his cannabis; the triple beam scale is too small. We finally find a larger scale to weigh the crop. The buds weigh eight and a half pounds.

Antie M agrees to a price of $3,600 a pound. He is pleased to discover that while most of his plants yield an average of one and three quarter pounds of buds, he has just sold a plant that yielded almost three pounds.

He steps into an enclosed alleyway behind the dispensary and loads the transparent bags of cannabis into a bucket. The dispensary owner pulls the bucket up to his second floor office and sends down $5,000 in cash. The rest of the cannabis will be sold on consignment.

Antie M puts the cash in a bag and heads back up to Green Mountain Farm, where the harvest continues.

The High-Tech Black Market

My daddy was a bank robber
But he never hurt nobody
He just liked to live that way
And he loved to steal your money
--The Clash, "Bank Robber"


It was after midnight on a San Francisco street popular with young hipsters. Groups of glittery girls and boys with 1960s protomullets slid past homeless people too tired to beg for money. As my friends and I rounded a corner, we heard a shuffle and a soft cough. A man huddled in a doorway full of shadow, his arms curled protectively around a cardboard box so old that its edges had gone soft and fuzzy.

"Want to buy some records?" he croaked. "I've got really good old stuff."

I paused, uncertain. He paused, too.

Then, in a voice so low I thought he might be talking to himself, he muttered, "I've got some software, too. You want to buy some software?"

That got my attention. It was the first time anyone had ever offered to sell me pirated software on the street. In New York City the streets are packed with people selling crappy pirated DVDs of new movies, but I had never heard of people doing the same thing with software programs.

"What do you have?" I asked.

He named several expensive and popular music software packages and added, "Plus a whole bunch of sound files I made from rare old albums." He smiled, reached into the invisible depths of his box, and pulled out a shiny jewel case with an unmarked CD in it. A friend of mine wound up giving him 20 bucks for a couple thousand dollars' worth of music software and loads of audio clips. After the deal, we all shook hands, and he introduced himself as DJ Cupcake, "so you can remember me." When we opened the CD on my computer at home, I discovered he'd named it "grip o shit," as if the disc contained drugs instead of code.

And why not treat the silvery disc like a bag of heroin? Selling pirated software is a federal crime. Violators face fines of up to $500,000 and five years in prison. In March a notorious Australian software pirate called Bandito was charged by a Connecticut federal grand jury with copyright infringement and -- because he was the leader of a software piracy ring called DrinkorDie -- conspiracy. He faces extradition, hundreds of thousands of dollars in fines, and up to 10 years in prison. Twenty other members of DrinkorDie have been convicted of felony copyright infringement as well.

Compared to the DrinkorDie gang, Cupcake is small-time. He's just selling a handful of pirated titles on the street. These days the federal government has bigger fish to fry. With the passage of the Digital Millennium Copyright Act (DMCA) in 1998, it created a whole new breed of digital outlaw: people who create or distribute tools that could be used to make pirated copies. Attorneys and activists compare this to outlawing crowbars because they could be used to break into somebody's house. And yet the steepest sentences doled out for criminal copyright infringement in the last couple of years have been for people selling tools rather than bootlegs.

Copyright Criminals

Consider the case of a Florida man who went by the name JungleMike, arrested earlier this year and charged on several counts of copyright infringement for selling modified smart access cards that helped his clients get free satellite TV. It's hard to deny that stealing pay TV, like selling a pirated CD, is a form of theft. But JungleMike wasn't stealing cable. He was selling hardware that other people could use to steal cable if they chose to do it. And yet JungleMike faces up to 30 years in prison, more than a bank robber does. Bank robbery, a form of theft both violent and extreme, carries a sentence of no more than 25 years.

Things weren't always this way. The first criminal provision in U.S. copyright law was added in 1897, more than 100 years after copyrights were defined and codified in the U.S. Constitution. Anyone who has followed the Recording Industry Association of America (RIAA) and the Motion Picture Association of America's push to sue the pants off people pirating media on peer-to-peer networks won't be surprised to discover that this century-old provision made it a misdemeanor to perform copyrighted musical or dramatic compositions "willfully and for profit." Later provisions extended the law to cover all copyrighted materials, and in 1982 a special felony provision was added for first-time infringers of movie and sound-recording copyrights.

It wasn't until 1992 that software found its way into criminal copyright law. Until that time, Cupcake's little sidewalk business might have gotten him sued but it wouldn't have landed him in jail. Now it most assuredly could.

Nevertheless, little changed in criminal copyright law for more than a century. Higher penalties were added, and more forms of media were tacked onto the list of items one might be jailed for copying and selling. But it wasn't until the infamous DMCA that the U.S. public was subjected to a dramatic and weird sea change in the law.

After the passage of the DMCA, it became illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work" (U.S. Criminal Code, title 17, chapter 12, section 1201). What this means is that you can't distribute or sell any kind of object or service that would potentially allow people to circumvent tech that protects media copyrights. This "crime of circumvention" is different from mere infringement because these days’ copyrighted media are often protected by more than a simple "all rights reserved" statement. If you buy a CD, DVD, or video game, it's likely that even if you wanted to copy it illegally, you couldn't, because a "technological measure" on the disc would stop you. Also known as digital rights management (DRM), this is usually some form of encryption software that is supposed to make it impossible for you to unscramble cable signals, copy DVDs, or put the music files you buy from the iTunes store onto more than one computer.

Of course, in practice the encryption or anticircumvention devices media companies use are generally easy to break. In a famous example, people discovered they could use Magic Markers to black out the parts of their CDs that contained DRM. Once marked up, the CDs could be ripped.

JungleMike, who sold hardware that allowed people to decrypt satellite TV signals, was charged under the section of the criminal code that deals with circumvention. Had he been caught five years ago, he might have faced a zillion-dollar lawsuit, but he wouldn't have been headed to the big house for his entire adult life.

But how can the federal government outlaw tools? That's as silly as making Magic Markers illegal because they could be used as circumvention devices. As activists with the Electronic Frontier Foundation (EFF) argued in a recent white paper, "photocopiers, VCRs, and CD-R burners can also be misused, but no one would suggest that the public give them up simply because they might be used by others to break the law." Most of the circumvention tools the DMCA is designed to prohibit also have legitimate uses.

Perhaps more important, turning circumvention into a crime means that people who have a legal right to make fair-use copies of their media can't. Say, for example, you're a music professor who wants to make copies of certain songs available for students to download and listen to for class. These kinds of copies fall under a fair-use exemption to copyright law because they are being used purely for scholarly inquiry. It's also legal for people to make personal backup copies of media they have purchased. But under the DMCA, the tools to make these perfectly legal copies simply won't be available outside the black market. While the DMCA does provide exemptions for research and fair use, getting the tools to make good on said exemptions is such a thorny problem that technologists worry the law will stifle innovation and scholarly inquiry.

For these reasons and more, the DMCA has created a consumer rights crisis. People are being physically restrained from making legal copies of CDs and DVDs they have legitimately purchased. Moreover, they are also being told they cannot modify their game systems and computers to play backup copies. The Xbox game system will not play backup copies of games, regardless of whether they are legal copies. DVDs come with an encryption scheme called CSS that prevents people from playing their DVDs on computers running the Linux operating system. A program called DeCSS that allows Linux users like myself to play the movies we've bought is illegal under the DMCA because it has to decrypt the copy protection in order to play movies. But why shouldn't I be able to play my movies on any machine I want? Why shouldn't I be allowed to use my game system to play my backup games?

Increasingly, consumers are having to ask these questions -- and in many cases, they are starting to challenge the law. But the outcome of these challenges remains uncertain. What's clear, however, is that the DMCA's anticircumvention provision has created a thriving black market where geeks rule.

Garage Modder

Somewhere in Silicon Valley, a twentysomething man who goes by the name Bear is making $6,000 profit a month selling copyright circumvention devices. To be more precise, he sells and installs chips for the Xbox and Playstation that allow people to play copied games. I found him on a community Web site, offering his service -- known as "modding" -- for $70 a game system. After I exchanged a few e-mails with him, he agreed to an interview with me.

My hacker pals Mason and Dixon came along for the ride. Like many geeks of their generation, Mason and Dixon don't take kindly to giant corporations using DRM to cripple the hardware they sell. "If I buy an Xbox, it's mine to do with as I please," Mason told me hotly. "I don't want it all fucked up with copy protection bullshit. I want to play whatever the hell I want."

We arrived in the quiet South Bay suburb on a Friday around 8 p.m., which is when Bear's shop opens for business. He'd given me an address and told me to "just knock on the garage door." As I hesitantly rapped on the metal, a clot of teenagers crossed the street and headed toward us, giggling and whispering excitedly as they arrived at Bear's garage. "Gang's all here," one of them announced, grinning.

Bear seemed to materialize out of nowhere. He looked as if he'd just gotten home from work, which in fact he had. Although he'd spent the last eight hours slaving over a hot keyboard coding for a large software corporation, his shirt and pants looked freshly ironed and he had a kind word for everyone. After some handshakes and hugs, he brought all of us inside.

The garage was like some kind of gamer palace. In the corner, a couple of guys sat on a plump couch playing a modded Playstation. One wall was taken up with a large engineer's workstation, a thick wooden table covered with hard drives, stacks of tiny boxes full of chips and soldering equipment, and a few motherboards Bear's little brother was delicately working on. A frown of concentration crossed his face as he attached a hair-thin wire from a chip to the board.

On a table in the center of the room were two hard, silvery suitcases; the kind heroes in caper movies always use to carry loot. They were packed with tidy rows of disks, neatly labeled and organized alphabetically. The teenagers who came in with us swarmed around them, excitedly exclaiming. One, the only girl in the room besides me, sat down in a chair and looked aggressively bored. The suitcases were full of pirated games, which at $7 a pop are $45 cheaper than most games on the legit market.

Surveying the room, with its comfy sofas and teenage energy, I was once again reminded forcefully of the similarities between the black market software business and that of a drug dealer. Here, among dorks with hard drives and video game obsessions, I found the same weird sense of guarded cheerfulness and barely concealed paranoid hysteria that has permeated the home of every drug dealer I've ever visited. There was even the same Friday-night party crowd: Dozens of people swirled in and out, stocking up on goodies for the weekend.

But there was also something there that no drug den could ever have: a sense of good, clean fun. "Look at this," Bear said to me, gesturing expansively. "See how cool it is? These people are like my family. Nobody wants to leave -- they all want to stick around and hang out." And he was right. Despite the look of excited naughtiness I saw in his customers' eyes, there was also a lot of shooting the breeze and goofing around. A middle-aged guy waiting for his Xbox mods to be finished told me about his pet minihamsters. Kids swapped stories about their favorite games and tried the modded Playstation in the corner. I chatted with Bear's brother about what he was working on, and he showed me several types of chips he uses to circumvent DRM on the Xbox.

After tending to his customers with the kind of polished, professional charm one expects from people hawking wares at a technical convention, Bear retreated into the house where he lives with his extended family. His sister kindly fussed over him, scolding him for not eating enough and pouring a steaming bowl of egg-drop soup. Between hasty sips, customer phone calls, and periodic requests for help from his little brother, Bear told me his story.

He started the modding and pirating business a year ago, after he got laid off from a job in software development. "If my parents were rich, I could be in a different market," he explained. "But you need money to start your own business. So I started from the bottom. All my life I've done something besides my main job, something on the left and the right, you know?" The garage shop started slowly, with Bear modding Xboxes for fun. "But I could see where it was going," he said, shrugging. "Too many of my friends wanted me to do it, so I started charging." At first he pulled in a few hundred dollars a week. But a year later, during holiday season, he says he's reached a high point at $6,000 a month.

His typical customer is "a mature adult who doesn't play games," he explained. These people want him to mod their Xboxes so they can use Xbox Media Player to play movies on their game systems. Currently, DRM on the Xbox doesn't allow people to do this, despite its obvious appeal.

Now that he's working full-time again, Bear hopes he can sock away enough cash to go straight. "I want to be in the legit market instead of like this," he said. "I want to use this money to create a business where I can deal a lot with people, which is what I love to do." When I asked him if he knew he could go to jail for what he's doing, he looked genuinely frightened. I explained that in April, a modchipper in Virginia with the handle krazy8 was sentenced to five months in jail and a $28,000 fine. Bear hadn't heard of the case, but it was clear he knew that was a possibility.

"I worry about the risk all the time," he admitted. "Basically, I hope I don't get busted, but if I do, I'll just be honest and explain how hard I work on this and how much I love it. I help so many people, and the harm I've done to the companies isn't worth jail time." He pondered for a moment, sipping his soup. "Anyway, my customers are the coolest people. They share games and buy for their brothers and sisters. Besides," he added, sighing, "my mom and dad can't give me any money. I need the work."

A few days later, I spoke with one of Bear's customers, who asked to remain anonymous. "I actually work at Microsoft, but I still modded my Xbox because I wanted to watch movies on it," he confessed. "And I'm not the only Microsoft employee who feels this way."

He said the main drawback to modding is that if you forget to turn your modchip off and try to play your Xbox over the Internet, Microsoft will figure out what you've done and shut down your online gaming account. He added, "I also think that Microsoft knows how popular modding is and that they are keeping a close eye on what people are doing so they can figure out what to add to the next generation of Xboxes."

Geeks in White Hats

So far, Microsoft and Sony haven't gone after anyone for circumventing the DRM in their game systems. Nevertheless, Bear isn't the only modder who lives in fear that his garage tinkering will capture the attention of federal agents and land him in jail. Bunnie, a former MIT graduate student and the author of Hacking the Xbox, secured legal representation from the EFF before publishing his book (see Techsploitation, 9/17/03).

Unlike Bear, bunnie isn't running a black market modding shop: He's just an engineer with a lot of curiosity. Among geeks he'd be called a "white hat" hacker -- the kind who tinkers with machines out of a desire to learn and explore. Along with other white hats, like Princeton University professor Ed Felton -- who cracked copy protection software the RIAA wanted to put on CD players -- bunnie hacks on DRM for both intellectual and political motives. Essentially, he wants to demonstrate that there are legitimate reasons for people to circumvent DRM. In his case, that reason was to make his Xbox run the Linux operating system. Attorneys with the EFF suggested that this meant bunnie's work qualified for an exemption under the DMCA, which states that people may circumvent copy protection schemes if they are doing it to make their machines "interoperable" with other technologies.

When I asked Bear if he'd ever thought of hacking Xboxes to run Linux on them, he wasn't interested. "I'd lose cred if I did that," he commented. Clearly, there's a difference between bunnie's and Bear's work. The government argues that what bunnie does is fine while what Bear does isn't. But they both perform exactly the same modifications to the Xbox hardware when they add a circumvention chip. So when the government goes after a modder like Bear, it has to prove intent -- always a dicey proposition.

Wendy Seltzer, an attorney with the EFF, says there's definitely a blurry line between Bear's business and one that is clearly legal. "The statute [of the DMCA] requires that [his services are] being offered 'primarily for the use of circumvention,' " she explained. "So therefore saying, 'I want to mod your box' is different from 'You can use this to play pirated games.' The latter treads closer to the line." There are even, Seltzer added, "commercially significant noninfringing uses" for a modded Xbox, which explains why a search for "modded Xbox" on Google will turn up several Web sites where you can buy a premodded game system. As long as the machines are being sold for interoperability with Linux or other technologies, they occupy a legal gray area nobody has yet challenged. Except for krazy8's case, people caught selling modchips have mostly settled out of court.

Seltzer speculates that companies may be loath to tip off the U.S. Attorney's Office to modders' businesses because of the horrendous public relations mess that developed when Adobe had a young Russian hacker named Dmitry Sklyarov arrested in 2001 for writing a program called Advanced eBook Processor that circumvented copy protection on the company's eBooks. Sklyarov, whose program was legal in Russia, was arrested when he came to the United States to deliver a paper on his work at a conference. During his detention, he became a cause célèbre among tech activists, who held large protests outside the Adobe offices until shamefaced executives dropped their complaint against him. He was released a few weeks later and allowed to return to Russia. Sklyarov's employer, ElcomSoft, which marketed his tool, fought the charges and won.

Because the Sklyarov case was so high-profile and inspired such widespread approbation, activists like bunnie are probably safer than they might have been a few years ago.

But crimes of circumvention are only going to become more common in the United States as the government and industry begin widespread deployment of smart cards for everything from IDs to cash cards. A smart card is any card with a computer chip in it, and as JungleMike's case makes clear, satellite TV companies using such cards in their systems created quite the lucrative black market for circumvention devices. Over the next two years, Visa will be rolling out "wireless smart cards" that can be used for everything from subway fares to supermarket purchases. Next year the city of San Francisco will be putting smart card readers into parking meters so people can use their TransLink cards to pay for parking as well as bridge tolls.

To understand the vast potential for a black market in smart card hacks, we need only look to Europe, where smart cards have been in heavy use for the past decade. Ross Anderson, a computer scientist at Cambridge University, has written extensively about the security of smart cards. "Smart card hacking has been an established industry in Europe for almost ten years," he said via e-mail. "The widespread use of smart cards for satellite TV got it started, then the phone companies started using smart cards [in phones].... We're about to have smart card-based identity documents, which will create a serious criminal market, and smart card-based bank cards, which will motivate lots of people to learn about the technology."

The black market in circumvention devices could soon include smart card hacks that would keep your bank account fat and your phone bill low. But as the stakes get higher in crimes of circumvention, the losers are bound to be innocent consumers and white-hat hackers. In their efforts to stop crime, corporations and the government are using DRM and the DMCA to stamp out our ability to make fair use of our media. When we cannot do what we like with our machines in our own homes, we are losing what Princeton professor Felton calls our "freedom to tinker." Ultimately, we may lose far more: our ability to innovate, to pass on our knowledge, and to understand how the technology that runs our world works.

Annalee Newitz (public@techsploitation.com) is a surly media nerd who never dresses right for the occasion. Her column also appears in Metro, Silicon Valley's weekly newspaper.
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