Yes, The DMCA Is Still Quite Controversial

from the anti-circumvention? dept

Michael Scott points us to an interesting blog post by law professor Tim Armstrong wondering if the DMCA is still controversial, noting that while many of the biggest fears associated with the DMCA when it was first passed did, in fact, come true, many of them were cut back by court decisions that limited the interpretations of the DMCA away from the most dangerous ones.
Dire predictions followed about how the DMCA would restrict fair use, distort competition, erode privacy, and jeopardize academic research. In the early years of the statute's existence, these predictions appeared to be fully justified: the DMCA was invoked to attack a DVD player for the Linux operating system; to imprison a Russian programmer transiently present in the United States based on conduct that was lawful in Russia where it occurred, and to harass and threaten an American computer scientist in an attempt to deter him from publishing his academic research, among other things. Cases like these appeared to substantiate the view that the DMCA had fundamentally upset the historical balance between the rights of owners and the rights of users of copyrighted works.

I can't help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.
He notes some more recent court cases, and the fact that the Library of Congress is finally approving consumer-friendly DMCA exemptions.

I don't buy it, however. There is still plenty that is highly controversial about the DMCA, and the fact that producers are relying less and less on DRM doesn't fix the massive problems that the law has created with its anti-circumvention provisions, that still make perfectly non-infringing activities illegal for no good reason at all. Separately, there's a rather important lawsuit going on right now questioning the limits of the DMCA's safe harbors, which could have tremendous chilling effects on internet services if the district court's ruling is not upheld. And while it may be amusing that some of the DMCA's biggest supporters are now complaining about the aspects they don't like, that doesn't make the overall law any less controversial for those who feel that it has always been a massive and dangerous overreach.

Unfortunately, it does seem like most people have accepted that the DMCA will not be fixed any time soon, but to claim that things are fine and dandy since we avoided the worst of the worst, seems to miss out on many of the ongoing concerns.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Jay (profile), Aug 26th, 2010 @ 10:17pm

    Did he miss the three RIAA lawsuits in the works?

    Tenenbaum, Thomas-Raisset, and Harper?

    Somehow the DMCA continues to be a nightmare for these three for the simple fact that they are damned if they do and damned if they don't.

     

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  2.  
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    Mike Masnick (profile), Aug 27th, 2010 @ 1:52am

    Re:

    Did he miss the three RIAA lawsuits in the works?

    Tenenbaum, Thomas-Raisset, and Harper?


    Are those really DMCA specific? I think they're straight copyright law, and don't have much to do with the parts of copyright law added by the DMCA.

     

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  3.  
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    Richard (profile), Aug 27th, 2010 @ 1:53am

    Chilling effects

    Does he also miss out the "chilling effects" - ie people have learnt do avoid doing the things that provoke lawsuits.

    In particular service providers taking stuff down on the flimsiest of complaints.

     

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  4.  
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    Anonymous Coward, Aug 27th, 2010 @ 5:12am

    DMCA Problems Caused By Consumer Stupidity

    If consumers were to adopt the simple rule: Do not buy anything with DRM in it, then most DMCA problems would go away. DRM-infected content would simply not sell. Instead consumers should buy DRM-free content from independent suppliers. It is perfectly possible to refrain from patronizing any of the large content suppliers (who are fond of DRM), for years on end. If the majors see the independents going from strength to strength, year after year, they will eventually get the message.

    Consumers should stop being sheeple. No you do not need to see the latest Hollywood blockbuster. No you do not need to buy DRM-infected music. Just say no.

     

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  5.  
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    Jay (profile), Aug 27th, 2010 @ 5:43am

    Re: Re:

    I thought the statutory damages may have been set higher by DMCA laws, but now I see it's only copyright.

    I retract my former statement.

     

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  6.  
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    Anonymous Coward, Aug 27th, 2010 @ 6:23am

    Re: DMCA Problems Caused By Consumer Stupidity

     

    reply to this | link to this | view in thread ]

  7.  
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    Anonymous Coward (profile), Aug 27th, 2010 @ 6:25am

    Re: DMCA Problems Caused By Consumer Stupidity

    Actually, that's what's happening. More DRM = less sales. Plus indie music is getting a lot larger, along with the likes of Radiohead and Trent Reznor leading the way to connect with fans.

     

    reply to this | link to this | view in thread ]

  8.  
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    Chronno S. Trigger (profile), Aug 27th, 2010 @ 6:46am

    Re: Re: DMCA Problems Caused By Consumer Stupidity

    This is exactly what's happening. Even Tim Armstrong saw it, he just came to the wrong conclusion.

    "I can't help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners."

    The DMCA is still controversial, but as businesses try to use it for what it is they find it's a bad thing for business. So they decide to ignore it and go with what will sell. Thus we don't hear as much about it any more.

     

    reply to this | link to this | view in thread ]

  9.  
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    nauer (profile), Aug 27th, 2010 @ 6:47am

    Re: Chilling effects

    I don't think that the safe harbors for ISPs are under as great of a threat from erosion as the post's author suggests. The more pressing issue left in the DMCA is the notice and takedown practices that occur these days. Ever since the 9th Circuit Rossi decision, protections for end user rights have been left wanting. From both an effort and monetary perspective, end users are usually at a disadvantage when it comes to fighting these erroneous takedown notices.

    But, I think overall it's safe to say that the DMCA has certainly injected much more predictability and confidence into the system than there was before.

     

    reply to this | link to this | view in thread ]

  10.  
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    BoloMKXXVIII (profile), Aug 27th, 2010 @ 6:48am

    We haven't seen all the problems with DMCA yet. I understand car manufacturers may encrypt some of the traffic between computers in their cars. If anyone trys to make a "will fit" electronic part they will be sued due to DMCA.

     

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  11.  
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    crade (profile), Aug 27th, 2010 @ 7:23am

    I'm not sure why it would be controversial.. It has obviously stopped piracy dead, and hasn't caused any problems at all since it's inception.

     

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  12.  
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    Anonymous Coward, Aug 27th, 2010 @ 7:35am

    Re: Re:

    You are correct. These are not DMCA based since they involve only individuals who are being sued directly for copying and/or distributing content secured by copyright law. Copying and/or distribution have plainly occurred. The issues in each are directed to the damages provisions of statutory damages, two arguing that the awards against them are excessive and constitutionally infirm, and the third that an innocent infringment reduction of statutory damages should apply.

     

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  13.  
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    Hephaestus (profile), Aug 27th, 2010 @ 7:45am

    How to crash the internet using DMCA takedowns.

    A really weird thought just occured to me ...

    Buy a section of a botnet and program it to issue DMCA takedowns. Wouldn't that be a hoot. Making life miserable for a couple million people all of whom would then start complaining about the DMCA.

    Or better yet when three strikes happens. A three strikes botnet.

    It would bring to the forefront how proof is required and not acquisition ...

     

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  14.  
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    crade (profile), Aug 27th, 2010 @ 7:57am

    Re: Re: DMCA Problems Caused By Consumer Stupidity

    Yes, but it's going to come into play in new ways, when the digital locks are on things that are only indirectly sold to the end customers. Trying software to hardware is going to be the next big problem I think.

     

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  15.  
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    crade (profile), Aug 27th, 2010 @ 7:58am

    Re: Re: Re: DMCA Problems Caused By Consumer Stupidity

    Should be "tying sw to hw"

     

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  16.  
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    btrussell (profile), Aug 27th, 2010 @ 8:13am

    Re: Re: Re:

    Copying and distributing?
    Did they rip the CDs' and then sell copies of them?

    They could not do what they did unless someone previously ripped and made available.



    If you give me a usb stick and tell me your resume is on it, which I then copy and distribute to others who will decide on your employment, am I infringing on copyright if it turns out you gave me music instead of your resume?

    If everyone knew what they were downloading off of the net, would everyone continue downloading viruses?

     

    reply to this | link to this | view in thread ]

  17.  
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    Anonymous Coward, Aug 27th, 2010 @ 10:57am

    The fact that court's have to strain against the plain language of a statute to get a result that approaches justice is a problem in itself, if you ask me.

     

    reply to this | link to this | view in thread ]


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